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WEST VIRGINIA CODE
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WVC 29- CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

WVC 29 - 1 - ARTICLE 1. DIVISION OF CULTURE AND HISTORY.


WVC 29 - 1 - 1 §29-1-1. Division of Culture and History continued; sections and commissions; purposes; definitions; effective date.
(a) The Division of Culture and History and the office of Commissioner of Culture and History heretofore created are hereby continued. The Governor shall nominate and, by and with the advice and consent of the Senate, appoint the commissioner, who shall be the chief executive officer of the division and shall be paid an annual salary as provided in section two-a, article seven, chapter six of this code. The commissioner so appointed shall have: (1) A bachelor's degree in one of the fine arts, social sciences, library science or a related field; or (2) four years' experience in the administration of museum management, public administration, arts, history or a related field.

(b) The division shall consist of five sections as follows:

(1) The arts section;

(2) The archives and history section;

(3) The museums section;

(4) The historic preservation section; and

(5) The administrative section.

(c) The division shall also consist of two citizens commissions as follows:

(1) A Commission on the Arts; and

(2) A Commission on Archives and History.

(d) The commissioner shall exercise control and supervision of the division and shall be responsible for the projects, programs and actions of each of its sections. The purpose and duty of the division is to advance, foster and promote the creative and performing arts and crafts, including both indoor and outdoor exhibits and performances; to advance, foster, promote, identify, register, acquire, mark and care for historical, prehistorical, archaeological and significant architectural sites, structures and objects in the state; to encourage the promotion, preservation and development of significant sites, structures and objects through the use of economic development activities such as loans, subsidies, grants and other incentives; to coordinate all cultural, historical and artistic activities in state government and at state-owned facilities; to acquire, preserve and classify books, documents, records and memorabilia of historical interest or importance; and, in general, to do all things necessary or convenient to preserve and advance the culture of the state.

(e) The division shall have jurisdiction and control and may set and collect fees for the use of all space in the building presently known as the West Virginia Science and Culture Center, including the deck and courtyards forming an integral part thereof; the building presently known as West Virginia Independence Hall in Wheeling, including all the grounds and appurtenances thereof; "Camp Washington Carver" in Fayette County, as provided in section fourteen of this article; and any other sites as may be transferred to or acquired by the division. Notwithstanding any provision of this code to the contrary, including the provisions of article one, chapter five-b of this code, beginning on and after the first day of July, one thousand nine hundred ninety-three, the division shall have responsibility for, and control of, all visitor touring and visitor tour guide activities within the State Capitol Building at Charleston.

(f) For the purposes of this article, "commissioner" means the Commissioner of Culture and History, and "division" means the Division of Culture and History.


WVC 29 - 1 - 1 A §29-1-1a. Transfer of powers and duties; existing contracts and obligations.

Except as otherwise provided in this article, the powers and duties of the West Virginia antiquities commission, the West Virginia arts and humanities council and the department of archives and history are hereby transferred to the division of culture and history. All existing contracts and obligations of the West Virginia antiquities commission, the West Virginia arts and humanities council and the department of archives and history, or relating to the present science and culture center, shall remain in full force and effect and shall be performed by the division of culture and history.


WVC 29 - 1 - 1 B §29-1-1b.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 1 - 2 §29-1-2. General powers of commissioner.

The commissioner shall assign and allocate space in all facilities assigned to the division and all space in the building presently known as the West Virginia science and culture center, and any other buildings or sites under the control of the commissioner, and may, in accordance with the provisions of chapter twenty-nine-a of this code, prescribe rules, regulations and fees for the use and occupancy of said facilities, including tours.

The commissioner shall coordinate the operations and affairs of the sections and commissions of the division and assign each section or commission responsibilities according to criteria the commissioner deems most efficient, productive and best calculated to carry out the purposes of this article. The commissioner shall provide to the fullest extent possible for centralization and coordination of the bookkeeping, personnel, purchasing, printing, duplicating, binding and other services which can be efficiently combined. The commissioner may establish such other sections for such purposes as he or she deems necessary, and may appoint directors thereof. The commissioner may appoint a director of the West Virginia science and culture center. The commissioner shall serve as the state historic preservation officer and shall chair the capitol building commission.

After consultation with the section directors and the commissions, the commissioner shall prepare a proposed division budget for submission to the governor for each fiscal year.

No contract, agreement or undertaking may be entered into by any section of the division which involves the expenditure of funds without the express written approval of the commissioner as to fiscal responsibility.

The commissioner shall prepare and submit to the governor an annual report in accordance with the provisions of section twenty, article one, chapter five of this code, which report shall include a detailed account of the activities of each section and commission of the division.

The commissioner shall employ all personnel for the sections, except for persons in the professional positions established within the sections as provided in this article; and shall supply support services to the commissions and to the governor's mansion advisory committee.


WVC 29 - 1 - 3 §29-1-3. Commission on the arts.
(a) The commission on the arts is continued and shall be composed of fifteen appointed voting members and the ex officio nonvoting members set forth or authorized for appointment in this section.

(b)(1) The governor shall appoint, by and with the advice and consent of the Senate, the voting members of the commission for staggered terms of three years. A person appointed to fill a vacancy shall be appointed only for the remainder of that term.

(2) No more than eight voting members may be of the same political party. Effective the first day of July, two thousand four, no more than three voting members may be from the same regional educational service agency district created in section twenty-six, article two, chapter eighteen of this code. Voting members of the commission shall be appointed so as to fairly represent both sexes, the ethnic and cultural diversity of the state and the geographic regions of the state.

(3) The commission shall elect one of its members as chair. It shall meet at the times specified by the chair. Notice of each meeting shall be given to each member by the chair in compliance with the open meetings laws of the state. A majority of the voting members constitute a quorum for the transaction of business. The director of the arts section shall be an ex officio nonvoting member of the commission and shall serve as secretary. The director or a majority of the members also may call a meeting upon notice as provided in this section.

(4) Each voting member or ex officio nonvoting member of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of the duties of the office; except that in the event the expenses are paid, or are to be paid, by a third party, the member or ex officio member, as the case may be, shall not be reimbursed by the state.

(5) Upon recommendation of the commissioner, the governor also may appoint those officers of the state that are appropriate to serve on the commission as ex officio nonvoting members.

(c) The commission may:

(1) Advise the commissioner and the director of the arts section concerning the accomplishment of the purposes of that section and establish a state plan with respect to the arts section;

(2) Approve and distribute grants-in-aid and awards from federal and state funds relating to the purposes of the arts section;

(3) Request, accept or expend federal funds to accomplish the purposes of the arts section when federal law or regulations would prohibit those actions by the commissioner or section director, but would permit them to be done by the commission on the arts;

(4) Otherwise encourage and promote the purposes of the arts section;

(5) Approve rules concerning the professional policies and functions of the section as promulgated by the director of the arts section; and

(6) Advise and consent to the appointment of the director by the commissioner.

(d) A special revenue account in the state treasury, known as the "cultural facilities and capital resources matching grant program fund", is continued. The fund shall consist of moneys received under section ten, article twenty-two-a of this chapter and funds from any other source. The moneys in the fund shall be expended in accordance with the following:

(1) Fifty percent of the moneys deposited in the fund shall be expended by the commission on the arts for capital improvements, preservation and operations of cultural facilities: Provided, That the commission on the arts may use no more than twenty-five percent of the funding for operations of cultural facilities pursuant to the rule required by this subdivision: Provided, however, That the commission shall make a women's veterans memorial statue a priority when expending the funds: Provided further, That the commission shall submit the plans for the statue to the secretary of administration for his or her approval. The commission on the arts shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to create a matching grant program for cultural facilities and capital resources; and

(2) Fifty percent of the moneys deposited in the fund shall be expended by the division of culture and history for:

(A) Capital improvements, preservation and operation of cultural facilities that are managed by the division; and

(B) Capital improvements, preservation and operation of cultural facilities that are not managed by the division.


WVC 29-1-4 §29-1-4. Arts section; director.
The purposes and duties of the arts section are to stimulate, encourage, assist, promote, foster and develop the performing and creative arts and crafts in the state; and in furtherance thereof to make awards, prizes and grants to individual performers, artists or craftsmen and to public or private corporations or associations in the field of either the performing or creative arts and crafts that would tend to encourage and foster the advancement of such arts and crafts; to support cultural, artistic or craft exhibits or performances at the division's facilities or on tour; and to perform such other duties as may be assigned to said section by the commissioner.

With the advice and consent of the commission on the arts, the commissioner shall appoint a director of the arts section, who shall have: (1) A bachelor's degree in the fine arts or related field or equivalent training and experience; or (2) three years' experience in administration of the fine arts or a related field.

With the approval of the commissioner, the director shall establish professional positions within the section. The director shall employ the personnel within these professional positions for the section.

The director may propose rules for legislative promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, concerning the professional policies and functions of the arts section, subject to the approval of the commission on the arts.


WVC 29 - 1 - 5 §29-1-5. Archives and history commission.

The archives and history commission which is hereby created shall be composed of thirteen appointed members, two ex officio voting members and six ex officio nonvoting members as provided in this section.

The governor shall nominate, and by and with the advice and consent of the Senate, appoint the members of the commission for staggered terms of three years. A person appointed to fill a vacancy shall be appointed only for the remainder of that term.

No more than seven of the appointed members may be of the same political party. Members of the commission should be appointed so as to fairly represent both sexes, the ethnic and cultural diversity of the state and the geographic regions of the state. The archives and history commission shall contain the required professional representation necessary to carry out the provisions of the National Historic Preservation Act of 1966, as amended, and shall serve as the "state review board" and shall follow all rules and regulations as specified therein. This representation shall include the following professions: Historian, architectural historian, historical architect, archaeologist specializing in historic and prehistoric archaeology, archivist, librarian and museum specialist.

The commission shall elect one of its members chair. It shall meet at such time as shall be specified by the chair. Notice of each meeting shall be given to each member by the chair in compliance with the open meetings law. A majority of the voting members shall constitute a quorum for the transaction of business.

In addition to the thirteen appointed members, the president of the state historical society and the president of the state historical association shall serve as ex officio voting members of the archives and history commission. The director of the state geological and economic survey, the president of the West Virginia preservation alliance, inc., and the state historic preservation officer shall serve as ex officio nonvoting members of the archives and history commission.

The directors of the archives and history section, the historic preservation section and the museums section shall be ex officio nonvoting members of the commission. The director of the archives and history section shall serve as secretary of the commission. The secretary, or a majority of the members, may also call a meeting upon such notice as provided in this section.

Each member or ex officio member of the commission shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of the duties of the commission; except that in the event the expenses are paid, or are to be paid, by a third party, the member or ex officio member, as the case may be, shall not be reimbursed by the state.

The commission shall have the following powers:

(a) To advise the commissioner and the directors of the archives and history section, the historic preservation section and the museums section concerning the accomplishment of the purposes of those sections and to establish a state plan with respect thereto;

(b) To approve and distribute grants-in-aid and awards from federal and state funds relating to the purposes of the archives and history section, the historic preservation section and the museums section;

(c) To request, accept or expend federal funds to accomplish the purposes of the archives and history section, the historic preservation section and the museums section when federal law or regulations would prohibit the same by the commissioner or section director, but would permit the same to be done by the archives and history commission;

(d) To otherwise encourage and promote the purposes of the archives and history section, the historic preservation section and the museums section;

(e) To approve rules and regulations concerning theprofessional policies and functions of the archives and history section, the historic preservation section and the museums section as promulgated by the directors of those sections;

(f) To advise and consent to the appointment of the section directors by the commissioner; and

(g) To review and approve nominations to the state and national registers of historic places.


WVC 29 - 1 - 6 §29-1-6. Archives and history section; director.
(a) The purposes and duties of the archives and history section are to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition documents and records having historical, evidential, administrative and/or legal value relating to the state of West Virginia and the territory included in the state from the earliest times to the present, upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation of the documents and records; to direct, protect, preserve, study and disseminate information on the documents and records; to provide matching grants to political subdivisions of this state to protect and preserve the documents and records; to operate and maintain a state library for the preservation of all public records, state papers, documents and reports of all three branches of state government including all boards, commissions, departments and agencies as well as any other private or public papers, books or documents of peculiar or historic interest or significance; to designate appropriate monuments, tablets or markers for historic, architectural and scenic sites within the state and to arrange for the purchase, replacement, care of and maintenance of the monuments, tablets and markers and to formulate and prepare suitable copy for them; to edit and publish a historical journal devoted to the history, biography, bibliography and genealogy of West Virginia; and to perform any other duties assigned to the section by the commissioner.

(b) With the advice and consent of the archives and history commission, the commissioner shall appoint a director of the archives and history section, who shall have: (1) A graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, or in records, library or archives management; and (2) three years' experience in administration in the field of West Virginia history, history, or in records, library or archives management. Notwithstanding these qualifications, the person serving as the state historian and archivist on the date of enactment of this article is eligible for appointment as the director of the archives and history section. The director of the archives and history section shall serve as the state historian and archivist.

(c) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure with the minimum professional qualifications. At the minimum, the following professions shall be represented within the section staff: Historian, archivist, librarian and technical and clerical positions as are required.

(d) The director shall promulgate rules with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the archives and history section; and (2) any other rules determined necessary to effectuate the purposes of this article.


WVC 29 - 1 - 7 §29-1-7. Museums section; director.

(a) The purposes and duties of the museums section are to locate, survey, investigate, register, identify, excavate, preserve, protect, restore and recommend to the commissioner for acquisition historic objects worthy of preservation, relating to the state of West Virginia and the territory included therein from the earliest times to the present, upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation, restoration or development of such objects; to direct, protect, excavate, preserve, study or develop such objects; to preserve and protect all battle or regimental flags borne by West Virginians and other memorabilia of historic interest; to operate and maintain a state museum, and to coordinate activities with other museums in the state; and to perform such other duties as may be assigned to the section by the commissioner.

(b) With the advice and consent of the archives and history commission, in addition to the duties above set forth, the section shall determine the whereabouts of and require the return of furnishings and objects missing from the capitol building and other state-owned or controlled buildings, including, but not limited to, furnishings chosen or purchased for the capitol by its architect, Cass Gilbert. No furnishings from the capitol may be sold or disposed of except pursuant to the provisions of article three, chapter five-a of this code. If furnishings originally designated as capitol building furnishings have been sold or otherwise disposed of without the requisite sale procedures, such furnishings shall be returned to the capitol and, upon presentation of proof of the amount paid, the current owner shall be reimbursed for the cost of the furnishing less any appropriate depreciation or wear and tear.

(c) With the advice and consent of the archives and history commission, the commissioner shall appoint a director of the museums section, who shall have: (1) A graduate degree in one of the social sciences, or equivalent training and experience in the field of West Virginia history, history, archaeology, or in museum administration; and (2) three years' experience in administration in the field of West Virginia history, history, archaeology, or in museum management.

(d) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure. At the minimum, the following professions shall be represented within the section staff: Curator and such technical and clerical positions as are required. With the approval of the commissioner, the director shall establish professional positions within the section. The director shall employ the personnel within these professional positions for the section.

(e) The director shall promulgate rules and regulations with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the museums section; and (2) such other rules and regulations as may be deemed necessary to effectuate the purposes of this section.


WVC 29 - 1 - 7 A §29-1-7a.
Repealed.

Acts, 1991 Reg. Sess., Ch. 42.


WVC 29 - 1 - 8 §29-1-8. Historic preservation section; director.
(a) The purposes and duties of the historic preservation section are to locate, survey, investigate, register, identify, preserve, protect, restore and recommend to the commissioner for acquisition historic, architectural, archaeological and cultural sites, structures and objects worthy of preservation, including human skeletal remains, graves, grave artifacts and grave markers, relating to the State of West Virginia and the territory included therein from the earliest times to the present upon its own initiative or in cooperation with any private or public society, organization or agency; to conduct a continuing survey and study throughout the state to develop a state plan to determine the needs and priorities for the preservation, restoration or development of the sites, structures and objects; to direct, protect, excavate, preserve, study or develop the sites and structures; to review all undertakings permitted, funded, licensed or otherwise assisted, in whole or in part, by the state for the purposes of furthering the duties of the section; to carry out the duties and responsibilities enumerated in the National Historic Preservation Act of 1966, as amended, as they pertain to the duties of the section; to develop and maintain a West Virginia State Register of Historic Places for use as a planning tool for state and local government; to cooperate with state and federal agencies in archaeological work; to issue permits for the excavation or removal of human skeletal remains, grave artifacts and grave markers, archaeological and prehistoric and historic features under the provisions of section eight-a of this article; and to perform any other duties as may be assigned to the section by the commissioner.

(b) With the advice and consent of the Archives and History Commission, the commissioner shall appoint a director of the historic preservation section who shall have: (1) A graduate degree in one of the social sciences or equivalent training and experience in the field of historic preservation, archaeology, West Virginia history or history; and (2) three years' experience in administration in the field of West Virginia history, history, historic preservation or archaeology. The director of the historic preservation section shall serve as the deputy state historic preservation officer.

(c) With the approval of the commissioner, the director shall establish professional positions within the section and develop appropriate organizational structures to carry out the duties of the section. The director shall employ the personnel with applicable professional qualifications to fill positions within the organizational structure with the minimum professional qualifications necessary to carry out the provisions of the National Historic Preservation Act of 1966, as amended. At the minimum, the following professions shall be represented within the section staff: Historian, architectural historian, a structural historian who specializes in historical preservation, an archaeologist specializing in historic and prehistoric archaeology and such technical and clerical positions as are required.

(d) The director shall promulgate rules with the approval of the archives and history commission and in accordance with chapter twenty-nine-a of this code concerning: (1) The professional policies and functions of the historic preservation section; (2) the review of and, when required, issuance of permits for all undertakings permitted, funded, licensed or otherwise assisted, in whole or in part, by the state as indicated in subsection (a) of this section in order to carry out the duties and responsibilities of the section; (3) the establishment and maintenance of a West Virginia State Register of Historic Places, including the criteria for eligibility of buildings, structures, sites, districts and objects for the State Register and procedures for nominations to the State Register and protection of nominated and listed properties; (4) the review of historic structures in accordance with compliance alternatives and other provisions in any state fire regulation and shall coordinate standards with the appropriate regulatory officials regarding their application; (5) review of historic structures in conjunction with existing state or local building codes and shall coordinate standards with the appropriate regulatory officials for their application; and (6) any other rules as may be considered necessary to effectuate the purposes of this article.


WVC 29 - 1 - 8 A §29-1-8a. Protection of human skeletal remains, grave artifacts and grave markers; permits for excavation and removal; penalties.
(a) Legislative findings and purpose. --

The Legislature finds that there is a real and growing threat to the safety and sanctity of unmarked human graves in West Virginia and the existing laws of the state do not provide equal or adequate protection for all such graves. As evident by the numerous incidents in West Virginia which have resulted in the desecration of human remains and vandalism to grave markers, there is an immediate need to protect the graves of earlier West Virginians from such desecration. Therefore, the purpose of this article is to assure that all human burials be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations.

The Legislature also finds that those persons engaged in the scientific study or recovery of artifacts which have been acquired in accordance with the law are engaged in legitimate and worthy scientific and educational activities. Therefore, this legislation is intended to permit the appropriate pursuit of those lawful activities.

Finally, this legislation is not intended to interfere with the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property. (b) Definitions. --

For the purposes of this section:

(1) "Human skeletal remains" means the bones, teeth, hair or tissue of a deceased human body;

(2) "Unmarked grave" means any grave or location where a human body or bodies have been buried or deposited for at least fifty years and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery association, or is located within such cemetery or in such care and is not commonly marked;

(3) "Grave artifact" means any items of human manufacture or use that are associated with the human skeletal remains in a grave;

(4) "Grave marker" means any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with a grave;

(5) "Person" means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government;

(6) "Disturb" means the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers;

(7) "Native American tribe" means any Indian tribe, band, nation, or organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;

(8) "Cultural affiliation" means the relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day group and an identifiable earlier group;

(9) "Lineal descendants" means any individuals tracing his or her ancestry directly or by proven kinship; and

(10) "Proven kinship" means the relationship among people that exists because of genetic descent, which includes racial descent.

(c) Acts prohibited; penalties; exceptions. --

(1) No person may excavate, remove, destroy, or otherwise disturb any historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance unless such person has a valid permit issued to him or her by the Director of the Historic Preservation Section: Provided, That the supervising archaeologist of an archaeological investigation being undertaken in compliance with the federal Archaeological Resources Protection Act (Public Law 96-95 at 16 USC 470(aa)) and regulations promulgated thereunder is not required to obtain such permit, but shall notify the Director of the Historic Preservation Section that such investigation is being undertaken and file reports as are required of persons issued a permit under this section: Provided, however, That projects being undertaken in compliance with section 106 of the National Historic Preservation Act of 1966, as amended, or subsection (a), section five of this article is not required to obtain such permit for excavation, removal, destruction or disturbance of historic or prehistoric ruins or archaeological sites.

(2) A person who, either by himself or herself or through an agent, intentionally excavates, removes, destroys or otherwise disturbs any historic or prehistoric ruins, burial grounds or archaeological site, or unmarked grave, grave artifact or grave marker of historical significance without first having been issued a valid permit by the Director of the Historic Preservation Section, or who fails to comply with the terms and conditions of such permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, confined in jail for not more than six months, or both fined and confined.

(3) A person who, either by himself or herself or through an agent, intentionally excavates, removes, destroys or otherwise disturbs human skeletal remains of historical significance without first having been issued a valid permit by the Director of the Historic Preservation Section, or who fails to comply with the terms and conditions relating to disinterment or displacement of human skeletal remains of such permit, is guilty of the felony of disinterment or displacement of a dead human body or parts thereof under section fourteen, article eight, chapter sixty-one of this code and, upon conviction thereof, shall be imprisoned in a state correctional facility not more than five years.

(4) A person who intentionally withholds information about the excavation, removal, destruction, or other disturbance of any historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100, or confined in jail not more than ten days, or both fined and confined.

(5) A person who, either by himself or herself or through an agent, offers for sale or exchange any human skeletal remains, grave artifact or grave marker obtained in violation of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in jail not more than one year, or both fined and confined.

(6) Each instance of excavation, removal, destruction, disturbance or offering for sale or exchange under subdivisions (1) through (5) of this subsection shall constitute a separate offense.

(7) It is a complete defense in a prosecution under this section if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

(8) This subsection does not apply to actions taken in the performance of official law-enforcement duties.

(d) Notification of discovery of human skeletal remains in unmarked locations. --

Upon the discovery of human skeletal remains, grave artifact or grave marker in an unmarked grave on any publicly or privately owned property, the person making such discovery shall immediately cease any activity which may cause further disturbance, make a reasonable effort to protect the area from further disturbance and notify the county sheriff within forty-eight hours of the discovery and its location. If the human remains, grave artifact or grave marker appear to be from an unmarked grave, the sheriff shall promptly, and prior to any further disturbance or removal of the remains, notify the Director of the Historic Preservation Section. The director shall cause an on-site inspection of the disturbance to be made to determine the potential for archaeological significance of the site: Provided, That when the discovery is made by an archaeological investigation permitted under state or federal law, the supervising archaeologist shall notify the Director of the Historic Preservation Section directly.

If the Director of the Historic Preservation Section determines that the site has no archaeological significance, the removal, transfer and disposition of the remains shall be subject to the provisions of article thirteen, chapter thirty-seven of this code, and the director shall notify the circuit court of the county wherein the site is located.

If the Director of the Historic Preservation Section determines that the site has a potential for archaeological significance, the director shall take such action as is reasonable, necessary and prudent, including consultation with appropriate private or public organizations, to preserve and advance the culture of the state in accordance with the powers and duties granted to the director, including the issuance of a permit for the archaeological excavation or removal of the remains. If the director determines that the issuance of a permit for the archaeological excavation or removal of the remains is not reasonable, necessary or prudent, the director shall provide written reasons to the applicant for not issuing the permit.

(e) Issuance of permits. --

Prior to the issuance of a permit for the disturbance of human skeletal remains, grave artifacts, or grave markers, the director of historic preservation shall convene and chair an ad hoc committee to develop permit conditions. The committee shall be comprised of the chair and six or eight members representing known or presumed lineal descendants, private and public organizations which have cultural affiliation to the presumed contents of the site, the Council for West Virginia Archaeology and the West Virginia Archaeological Society. In the case of Native American sites, the membership of the committee shall be comprised of the chair and six or eight members representing the Council for West Virginia Archaeology, the West Virginia Archaeological Society, and known or presumed lineal descendants, preferably with cultural affiliation to tribes that existed in the geographic area that is now West Virginia.

In the case of a site of less then five acres, which is owned by an individual or partnership, the ad hoc committee must be formed within thirty days of application for same by the property owner, must meet within sixty days of such application, and must render a decision within ninety days of such application.

All such permits shall at a minimum address the following conditions: (1) The methods by which lineal descendants of the deceased are notified prior to the disturbance; (2) the respectful manner in which the remains, artifacts or markers are to be removed and handled; (3) scientific analysis of the remains, artifacts or markers and the duration of those studies; (4) the way in which the remains may be reburied in consultation with any lineal descendants, when available; (5) methods for the respectful curation of recovered items; and (6) such other conditions as the director may deem necessary. Expenses accrued in meeting the permit conditions shall be borne by the permit applicant, except in cases where the deceased descendants or sponsors are willing to share or assume the costs. A permit to disturb human skeletal remains, grave artifacts or grave markers will be issued only after alternatives to disturbance and other mitigative measures have been considered.

In addition, a person applying for a permit to excavate or remove human skeletal remains, grave artifacts, grave markers, or any historic or prehistoric features of archaeological significance may provide to the ad hoc committee information he or she deems appropriate and shall:

(1) Provide a detailed statement to the Director of the Historic Preservation Section giving the reasons and objectives for excavation or removal and the benefits expected to be obtained from the contemplated work;

(2) Provide data and results of any excavation, study or collection in annual reports to the Director of the Historic Preservation Section and submit a final report to the director upon completion of the excavation;

(3) Obtain the prior written permission of the owner if the site of such proposed excavation is on privately owned land; and

(4) Provide any additional information the ad hoc committee deems necessary in developing the permit conditions.

The permits shall be issued for a period of two years and may be renewed at expiration. The permits are not transferable but other persons who have not been issued a permit may work under the direct supervision of the person holding the permit. The person or persons to whom a permit was issued must carry the permit while exercising the privileges granted and must be present at the site whenever work is being done.

Notwithstanding any other penalties to which a person may be subject under this section for failing to comply with the terms and conditions of a permit, the permit of a person who violates any of the provisions of this subsection shall be revoked.

As permits are issued, the Director of the Historic Preservation Section shall maintain a catalogue of unmarked grave locations throughout the state.

(f) Property tax exemption for unmarked grave sites. --

To serve as an incentive for the protection of unmarked graves, the owner, having evidence of the presence of unmarked graves on his or her property, may apply to the Director of the Historic Preservation Section for a determination as to whether such is the case. Upon making such a determination in the affirmative, the Director of the Historic Preservation Section shall provide written certification to the landowner that the site containing the graves is a cemetery and as such is exempt from property taxation upon presentation of the certification to the county assessor. The area of the site to receive property tax exempt status shall be determined by the Director of the Historic Preservation Section. Additionally, a property owner may establish protective easements for the location of unmarked graves.

(g) Additional provisions for enforcement; civil penalties; rewards for information. --

(1) The prosecuting attorney of the county in which a violation of any provision of this section is alleged to have occurred may be requested by the Director of the Historic Preservation Section to initiate criminal prosecutions or to seek civil damages, injunctive relief and any other appropriate relief. The Director of the Historic Preservation Section shall cooperate with the prosecuting attorney in resolving such allegations.

(2) Persons convicted of any prohibited act involving the excavation, removal, destruction, disturbance or offering for sale or exchange of historic or prehistoric ruins, burial grounds, archaeological site, human skeletal remains, unmarked grave, grave artifact or grave marker under the provisions of subdivisions (1) and (2), subsection (c) of this section shall also be liable for civil damages to be assessed by the prosecuting attorney in consultation with the Director of the Historic Preservation Section.

Civil damages may include:

(i) Forfeiture of any and all equipment used in disturbing the protected unmarked graves or grave markers;

(ii) Any and all costs incurred in cleaning, restoring, analyzing, accessioning and curating the recovered material;

(iii) Any and all costs associated with recovery of data, and analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the restoration of the unmarked burials or grave markers;

(iv) Any and all costs associated with restoring the land to its original contour or the grave marker to its original condition;

(v) Any and all costs associated with reinterment of the human skeletal remains; and

(vi) Any and all costs associated with the determination and collection of the civil damages.

When civil damages are recovered, the proceeds, less the costs of the prosecuting attorney associated with the determination and collection of such damages, shall be deposited into the Endangered Historic Properties Fund and may be expended by the Commissioner of Culture and History for archaeological programs at the state level, including the payment of rewards for information leading to the arrest and conviction of persons violating the provisions of subdivisions (1) and (2), subsection (c) of this section.

(3) The Commissioner of Culture and History is authorized to offer and pay rewards of up to $1,000 from funds on deposit in the Endangered Historic Properties Fund for information leading to the arrest and conviction of persons who violate the provisions of subdivisions (1) and (2), subsection (c) of this section.

(h) Disposition of remains and artifacts not subject to reburial. --

All human skeletal remains and grave artifacts found in unmarked graves on public or private land, and not subject to reburial, under the provisions of subsection (e) of this section, are held in trust for the people of West Virginia by the state and are under the jurisdiction of the Director of Historic Preservation. All materials collected and not reburied through this section shall be maintained with dignity and respect for the people of the state under the care of the West Virginia State Museum.


WVC 29 - 1 - 8 B §29-1-8b. Protection of historic and prehistoric sites; penalties.

Historic and prehistoric landmarks, sites and districts, identified by the historic preservation section, on lands owned or leased by the state, or on private lands where investigation and development rights have been acquired by the state by lease or contract, shall not be disturbed, or destroyed except as permitted under sections eight and eight-a of this article.

Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned.


WVC 29 - 1 - 9 §29-1-9. Administrative section; director.

The purposes and duties of the administrative section are to provide centralized support to the division in all areas of operations.

The commissioner shall appoint a director of the administrative section who shall have a bachelor's degree and two years' experience in responsible positions involving office management, public administration, budget and fiscal administration, or related fields; or six years' experience as outlined above. Notwithstanding these qualifications, the person serving as director of the administrative section on the date of enactment of this section shall be eligible for appointment as director of the administrative section.

With approval of the commissioner, the director of the administrative section shall establish professional positions within the section.


WVC 29 - 1 - 10 §29-1-10. Division employees classified by civil service; exceptions.
Effective the first day of July, one thousand nine hundred seventy-seven, any person employed in any of the agencies consolidated by this article who is a classified civil service employee shall, within the limits provided in article six of this chapter, remain in the civil service system as a covered employee; and all persons employed by the division of culture and history shall be employed under the classified service of the civil service system within the limits provided in article six of this chapter.


WVC 29 - 1 - 11 §29-1-11. Power to accept and receive funds; power to apply for grants; disbursal of funds; restrictions on expenditure; disposition of funds heretofore received or appropriated.
(a) The division may, in the name of the State of West Virginia, through the commissioner or its commissions, accept and receive grants, appropriations, gifts, bequests and funds from any public or private source for the purpose of carrying out the duties and purposes of this article.

(b) The division may, through the commissioner or its commissions, apply for grants from the federal government, private foundations and any other source for the purposes of this article. (c) All funds received from any source shall be paid into the Treasury of the state and disbursed upon warrant by the State Auditor following requisition by the division. The requisitions shall be signed by the commissioner or by another person as the commissioner may authorize by written document deposited with the auditor or, in the event of emergency, by the Governor or the Governor's designee.

(d) No funds or gifts received from any source shall be expended or used for any purpose other than that intended as evidenced by a positive and affirmative declaration or by a negative restriction or limitation.

(e) The division may assist in the promotion and operation of an annual state fair and other regional or local fairs and festivals entitled to aid when funds are available and to expend those funds for the support and development of fairs and festivals.

(f) All federal or state funds received to provide grants-in-aid or awards to further the purposes of this article shall be approved and distributed by the appropriate commission established by this article.


WVC 29 - 1 - 12 §29-1-12. Publication of materials; agreements.

The division of culture and history shall have the power, responsibility and duty to publish or republish material of prehistorical, historical, archaeological, architectural or cultural interest. The division of culture and history may sell such publications as well as postcards and other items of such interest at the state museum or any other site or property administered by the state or at any special event sponsored by the state. The division shall have the right to enter into agreements with responsible individuals, private historical, archaeological, architectural or cultural associations, foundations or similar organizations or any agency of the federal, state or local government for the purpose of carrying out its purposes or for raising money to fund the functions of the division.


WVC 29 - 1 - 13 §29-1-13. Land; control and disposal; rules and regulations.

All land owned or leased by the division of culture and history shall be titled in the name of the public land corporation of West Virginia but shall be controlled, administered and supervised by the division. The division, in the discretion of its commissioner, may sell or dispose of any real or personal property which, in his or her opinion, does not have sufficient prehistorical, historical, archaeological, architectural or cultural value to justify its retention.

The commissioner shall have the power to make and promulgate rules and regulations relating to the general management and administration of the division.


WVC 29 - 1 - 14 §29-1-14. Washington-Carver Camp; prohibition of disposition or removal of minerals without authorization by the Legislature.

Washington-Carver Camp in Fayette County, heretofore transferred to the public land corporation under the control, administration and supervision of the division of culture and history shall continue under the control, administration and supervision of the division.

The division of culture and history shall undertake to develop such cultural and multicultural, artistic, humanistic and educational programs at the camp as will serve and benefit the citizens of the state and the many cultures represented therein. In order to ensure the maximum reasonable utilization of that portion of the camp under its jurisdiction, the division shall, during times the camp is not being used for the division's purposes, make the camp available, under such terms as the division deems proper, to any other agency of government or nonprofit group desiring to use the camp. The camp shall retain the name "Camp Washington-Carver" as indicative of its heritage of serving the black citizens of the state. The division is authorized to provide necessary and suitable equipment and other resources for implementing the provisions of this section.

No minerals may be assigned, leased or otherwise encumbered, sold, mined, or removed with respect to the property heretofore transferred or the mineral rights retained without specific authorization by the Legislature.


WVC 29 - 1 A- ARTICLE 1A. COMMISSION ON UNIFORM STATE LAWS.


WVC 29 - 1 A- 1 §29-1A-1. Appointment and qualification; how vacancies filled.

Within thirty days after the effective date of this article, the governor, upon the recommendation of the executive council of the West Virginia bar association, of a list of seven eligible persons, shall appoint therefrom three commissioners, no more than two of whom shall be members of the same political party, and each of whom shall be members of the bar of this state, in good standing, or of the judiciary of this state, who shall constitute and be known as the commission on uniform state laws, and upon the death, resignation or refusal to serve of any of the commissioners so appointed, the governor, upon like recommendation, shall make an appointment to fill the vacancy so caused, such new appointment to be for the unexpired balance of the term of the original appointee.


WVC 29 - 1 A- 2 §29-1A-2. Term of office; expenses.

Each of said commissioners shall hold office for a term of four years, and until their successors are duly appointed, but nothing herein contained shall be construed to render a commissioner who has faithfully performed his duties ineligible for reappointment. No member of said commission shall receive any compensation for his services as commissioner, but each commissioner shall be entitled to receive his actual disbursements for expenses in performing the duties of his office, and an account of which expenses, shall be approved by the chairman and paid by the state auditor as other claims authorized by law.


WVC 29 - 1 A- 2 A §29-1A-2a. Life members.

In addition to the commissioners appointed and serving pursuant to other provisions of this article, any person who serves as a member of the commission for twenty years and because of such years of service is appointed by the national conference of commissioners on uniform state laws as a life member of such conference shall remain as an additional member of the commission, and shall have the same duties, responsibilities and privileges as any member of the commission appointed by the governor.


WVC 29 - 1 A- 3 §29-1A-3. Meetings and officers.
The commissioners shall meet at the state capitol at least once in two years and shall organize by the election of one of their number as chairman and another as secretary, who shall hold their respective offices for a term of two years and until their successors are elected and qualified.


WVC 29 - 1 A- 4 §29-1A-4. Duties of commission to secure uniformity in state laws; report to Legislature.
It shall be the duty of each of said commissioners to attend the meeting of the national conference of commissioners on uniform state laws, or to arrange for the attendance of at least one of their number at such national conference, and in such national conference they shall do all in their power to promote uniformity in state laws, upon all subjects where uniformity may be deemed desirable and practicable; said commission shall report to the Legislature at each regular session, and from time to time thereafter as said commission may deem proper, an account of its transactions, and its advice and recommendations for legislation. This report shall be printed for presentation to each Legislature.


WVC 29 - 1 A- 5 §29-1A-5.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 1 B- ARTICLE 1B. COMMISSION ON INTERSTATE COOPERATION.


WVC 29 - 1 B- 1 §29-1B-1. Senate committee on interstate cooperation.
There is hereby established a standing committee of the Senate of this state, to be officially known as the "Senate committee on interstate cooperation," and to consist of seven senators. The members and the chairman of this committee shall be designated in the same manner as is customary in the case of the members and chairmen of other standing committees of the Senate. In addition to the regular members, the president of the Senate shall be ex officio an honorary nonvoting member of this committee.


WVC 29 - 1 B- 2 §29-1B-2. House committee on interstate cooperation.
There is hereby established a similar standing committee of the House of Delegates of this state, to be officially known as the "house committee on interstate cooperation," to consist of seven members of the House of Delegates. The members and the chairman of this committee shall be designated in the same manner as is customary in the case of the members and chairmen of other standing committees of the House of Delegates. In addition to the regular members, the speaker of the House of Delegates shall be ex officio an honorary nonvoting member of this committee.


WVC 29 - 1 B- 3 §29-1B-3. West Virginia commission on interstate cooperation.
There is hereby established the West Virginia commission on interstate cooperation. This commission shall be composed of fourteen regular members, namely:

The seven members of the Senate committee on interstate cooperation; and

The seven members of the House committee on interstate cooperation.

The president of the Senate and the speaker of the House of Delegates shall be ex officio honorary nonvoting members of this commission and as such shall serve as cochairmen thereof.


WVC 29 - 1 B- 4 §29-1B-4. Terms of Senate and House committees.
The said standing committee of the Senate and the said standing committee of the House of Delegates shall function during the regular sessions of the Legislature and also during the interim periods between such sessions; their members shall serve until their successors are designated; and they shall respectively constitute for this state the Senate council and House council of the American legislators' association.


WVC 29 - 1 B- 5 §29-1B-5. Function of commission.
It shall be the function of this commission:

(1) To carry forward the participation of this state as a member of the council of state governments.

(2) To encourage and assist the legislative, executive, administrative and judicial officials and employees of this state to develop and maintain friendly contact by correspondence, by conference, and otherwise, with officials and employees of the other states of the federal government, and of local units of government.

(3) To endeavor to advance cooperation between this state and other units of government whenever it seems advisable to do so by formulating proposals for, and by facilitating:

(a) The adoption of compacts,

(b) The enactment of uniform or reciprocal statutes,

(c) The adoption of uniform or reciprocal administrative rules and regulations,

(d) The informal cooperation of governmental offices with one another,

(e) The personal cooperation of governmental officials and employees with one another, individually,

(f) The institution and consummation of a federal long- range program of flood control, meeting the requirements of the federal flood control acts of one thousand nine hundred thirty- six or other acts of Congress relative thereto,

(g) The interchange and clearance of research and information, and

(h) Any other suitable process.

(4) To perform such duties as from time to time may be assigned to it by the joint committee on government and finance and to cooperate with the joint committee on government and finance in joint interim studies.

(5) In short, to do all such acts as will, in the opinion of this commission, enable this state to do its part, or more than its part, in forming a more perfect union among the various governments in the United States and in developing the council of state governments for that purpose.


WVC 29 - 1 B- 6 §29-1B-6. Commission may establish delegations and committees.

The commission shall establish such delegations and committees as it deems advisable, in order that they may confer and formulate proposals concerning effective means to secure intergovernmental harmony, and may perform other functions for the commission in obedience to its decisions. Subject to the approval of the commission, the member or members of each such delegation or committee shall be appointed by the chairman of the commission. State officials or employees who are not members of the commission on interstate cooperation may be appointed as members of any such delegation or committee, but private citizens holding no governmental position in this state shall not be eligible. The commission may provide such other rules as it considers appropriate concerning the membership and the functioning of any such delegation or committee. The commission may provide for advisory boards for itself and for its various delegations and committees, and may authorize private citizens to serve on such boards.


WVC 29 - 1 B- 7 §29-1B-7. Names of committees and commission.
The committees and the commission established by this article shall be informally known, respectively, as the "Senate cooperation committee," the "House cooperation committee," and the "West Virginia cooperation commission."


WVC 29 - 1 B- 8 §29-1B-8. Filing interstate compacts.
(a) Within ninety days of entering into an interstate compact, a commission, agency or person administering the compact between or among states or the federal government, having the force of law and to which this state is a party, shall file with the office of the Secretary of State:

(1) A copy of the compact accompanied by a signed letter of a representative of the commission, agency or person administering the compact stating that the copy is a true and accurate copy of the adopted compact;

(2) A listing of all other jurisdictions party to the compact and the date on which each jurisdiction entered into participation; and

(3) Citations to any act or resolution of the Congress of the United States consenting to the compact.

(b) The commission, agency or person administering the compact shall submit, within a reasonable time from when the information becomes available:

(1) The status of each compact with respect to withdrawals or additions of participating jurisdictions; and

(2) Any amendment, supplementary agreement or administrative rule having the force of law and implementing or modifying the compact.

(c) The office of the Secretary of State shall index these documents and make them available for inspection upon request of any person during normal business hours.

(d) The provisions of this section are in addition to other requirements of law for filing, publication or distribution.

(e) Certified copies of interstate compacts entered into by this state prior to the effective date of this section and the information required to be filed under subsection (a) of this section shall be filed with the office of the Secretary of State by the commission, agency or person administering the compacts within ninety days of the effective date of this section.


WVC 29 - 1 C- ARTICLE 1C. INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN.


WVC 29 - 1 C- 1 §§29-1C-1 to 29-1C-5.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.


WVC 29 - 1 D- ARTICLE 1D. OHIO RIVER VALLEY WATER SANITATION COMMISSION.


WVC 29 - 1 D- 1 §§29-1D-1 to 29-1D-6.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.


WVC 29 - 1 E- ARTICLE 1E. SOUTHERN STATES ENERGY COMPACT.


WVC 29 - 1 E- 1 §29-1E-1. Definitions.
As used in this article, unless the context requires otherwise:

(1) "Compact" means the southern states energy compact;

(2) "Board" means the southern states energy board.


WVC 29 - 1 E- 2 §29-1E-2. Enactment of compact.
The southern states energy compact is hereby enacted into law and entered into by the state of West Virginia with any and all states legally joining therein in accordance with its terms, in the form substantially as follows:

SOUTHERN STATES ENERGY COMPACT

Article I. Policy and Purpose

The party states recognize that the proper employment and conservation of energy, and employment of energy-related facilities, materials, and products, within the context of a responsible regard for the environment, can assist substantially in the industrialization of the south and the development of a balanced economy for the region. They also recognize the optimum benefit from and acquisition of energy resources and facilities requires systematic encouragement, guidance, and assistance from the party states on a cooperative basis. It is the policy of the party states to undertake such cooperation on a continuing basis; it is the purpose of this compact to provide the instruments and framework for such a cooperative effort to improve the economy of the south and contribute to the individual and community well-being of the region's people.

Article II. The Board

(a) There is hereby created an agency of the party states to be known as the "southern states energy board" (hereinafter called the board). The board shall be composed of three members from each party state, one of whom shall be appointed or designated in each state to represent the governor, the state Senate, and the state House of Delegates, respectively. Each member shall be designated or appointed in accordance with the law of the state which he represents and serving and subject to removal in accordance with such law. Any member of the board may provide for the discharge of his duties and the performance of his functions thereon (either for the duration of his membership or for any lesser period of time) by a deputy or assistant, if the laws of his state make specific provision therefor. The federal government may be represented without vote if provision is made by federal law for representation.

(b) Each party state shall be entitled to one vote on the board to be determined by majority vote of each member or member's representative from the party state present and voting on any question. No action of the board shall be binding unless taken at a meeting at which a majority of all party states are represented and unless a majority of the total number of votes on the board are cast in favor thereof.

(c) The board shall have a seal.

(d) The board shall elect annually, from among its members, a chairman, a vice chairman, and a treasurer. The board shall appoint an executive director who shall serve at its pleasure and who shall also act as secretary, and who, together with the treasurer, shall be bonded in such amounts as the board may require.

(e) The executive director, with the approval of the board, shall appoint and remove or discharge such personnel as may be necessary for the performance of the board's functions irrespective of the civil service, personnel or other merit system laws of any of the party states.

(f) The board may establish and maintain, independently or in conjunction with any one or more of the party states, a suitable retirement system for its full-time employees. Employees of the board shall be eligible for social security coverage in respect of old age and survivors insurance provided that the board takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The board may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.

(g) The board may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.

(h) The board may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials, and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and may receive, utilize and dispose of the same.

(i) The board may establish and maintain such facilities as may be necessary for the transacting of its business. The board may acquire, hold, and convey real and personal property and any interest therein.

(j) The board shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules and regulations. The board shall publish its bylaws, rules and regulations in convenient form and shall file a copy thereof, and shall also file a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.

(k) The board annually shall make to the governor of each party state, a report covering the activities of the board for the preceding year, and embodying such recommendations as may have been adopted by the board, which report shall be transmitted to the legislature of said state. The board may issue such additional reports as it may deem desirable.

Article III. Finances

(a) The board shall submit to the executive head or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof.

(b) Each of the board's budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. One half of the total amount of each budget of estimated expenditures shall be apportioned among the party states in equal shares; one quarter of each such budget shall be apportioned among the party states in accordance with the ratio of their populations to the total population of the entire group of party states based on the last decennial federal census; and one quarter of each such budget shall be apportioned among the party states on the basis of the relative average per capita income of the inhabitants in each of the party states based on the latest computations published by the federal census-taking agency. Subject to appropriation by their respective legislatures, the board shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the board.

(c) The board may meet any of its obligations in whole or in part with funds available to it under article two (h) of this compact, provided that the board takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the board makes use of funds available to it under article two (h) hereof, the board shall not incur any obligation prior to the allotment of funds by the party jurisdictions adequate to meet the same.

(d) The board shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the board shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the board shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become part of the annual report of the board.

(e) The accounts of the board shall be open at any reasonable time for inspections.

Article IV. Advisory Committees

The board may establish such advisory and technical committees as it may deem necessary, membership on which to include but not be limited to private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, medicine, education, voluntary health agencies, and officials of local, state and federal government, and may cooperate with and use the services of any such committees and the organizations which they represent in furthering any of its activities under this compact.

Article V. Powers

The board shall have power to:

(a) Ascertain and analyze on a continuing basis the position of the south with respect to energy, energy-related industries and environmental concerns.

(b) Encourage the development, conservation and responsible use of energy and energy-related facilities, installations, and products as part of a balanced economy and healthy environment.

(c) Collect, correlate, and disseminate information relating to civilian uses of energy and energy-related materials and products.

(d) Conduct, or cooperate in conducting, programs of training for state and local personnel engaged in any aspect of:

(1) Energy, environment, and applications of energy, environmental, and related concerns to industry, medicine, or education or the promotion or regulation thereof.

(2) The formulation or administration of measures designed to promote safety in any matter related to the development, use or disposal of energy and energy-related materials, products, installations or wastes.

(e) Organize and conduct, or assist and cooperate in organizing and conducting, demonstrations of energy product, material, or equipment use and disposal and of proper techniques or processes for the application of energy resources to the civilian economy or general welfare.

(f) Undertake such nonregulatory functions with respect to sources of radiation as may promote the economic development and general welfare of the region.

(g) Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to energy and environmental fields.

(h) Recommend such changes in, or amendments or additions to the laws, codes, rules, regulations, administrative procedures and practices or ordinances of the party states in any of the fields of its interest and competence as in its judgment may be appropriate. Any such recommendation shall be made through the appropriate state agency with due consideration of the desirability of uniformity but shall also give appropriate weight to any special circumstance which may justify variations to meet local conditions.

(i) Prepare, publish and distribute (with or without charge) such reports, bulletins, newsletters or other material as it deems appropriate.

(j) Cooperate with the United States department of energy or any agency successor thereto, any other officer or agency of the United States and any other governmental unit or agency or officer thereof, and with any private persons or agencies in any of the fields of its interest.

(k) Act as licensee of the United States government or any party state with respect to the conduct of any research activity requiring such license and operate such research facility or undertake any program pursuant thereto.

(1) Ascertain from time to time such methods, practices, circumstances, and conditions as may bring about the prevention and control of energy and environmental incidents in the area comprising the party states, to coordinate the nuclear, environmental and other energy-related incident prevention and control plans and the work relating thereto of the appropriate agencies of the party states and to facilitate the rendering of aid by the party states to each other in coping with energy andenvironmental incidents. The board may formulate and, in accordance with need from time to time, revise a regional plan or regional plans for coping with energy and environmental incidents within the territory of the party states as a whole or within any subregion or subregions of the geographic area covered by this compact.

Article VI. Supplementary Agreements

(a) To the extent that the board has not undertaken an activity or project which would be within its power under the provisions of article five of this compact, any two or more of the party states (acting by their duly constituted administrative officials) may enter into supplementary agreements for the undertaking and continuance of such an activity or project. Any such agreement shall specify its purpose or purposes; its duration and the procedure for termination thereof or withdrawal therefrom; the method of financing and allocating the costs of the activity or project; and such other matters as may be necessary or appropriate. No such supplementary agreement entered into pursuant to this article shall become effective prior to its submission to and approval by the board. The board shall give such approval unless it finds that the supplementary agreement or the activity or project contemplated thereby is inconsistent with the provisions of this compact or a program or activity conducted by or participated in by the board.

(b) Unless all of the party states participate in a supplementary agreement, any cost or costs thereof shall be borne separately by the states party thereto. However, the board may administer or otherwise assist in the operation of any supplementary agreement.

(c) No party to a supplementary agreement entered into pursuant to this article shall be relieved thereby of any obligation or duty assumed by said party state under or pursuant to this compact, except that timely and proper performance of such obligation of duty by means of the supplementary agreement may be offered as performance pursuant to the compact.

Article VII. Other Laws and Relationships

Nothing in this compact shall be construed to:

(a) Permit or require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force.

(b) Limit, diminish, or otherwise impair jurisdiction exercised by the United States department of energy, any agency successor thereto, or any other federal department, agency or officer pursuant to and in conformity with any valid and operative act of Congress.

(c) Alter the relations between and respective internal responsibilities of the government of a party state and its subdivisions.

(d) Permit or authorize the board to exercise any regulatory authority or to own or operate any nuclear reactor for the generation of electric energy; nor shall the board own or operate any facility or installation for industrial or commercial purposes.

Article VIII. Eligible Parties, Entry Into Force and Withdrawal

(a) Any or all of the states of Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, the Commonwealth of Puerto Rico and the United States Virgin Islands shall be eligible to become party to this compact.

(b) As to any eligible party state this compact shall become effective when its legislature shall have enacted the same into law: Provided, That it shall not become initially effective until enacted into law by seven states.

(c) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall become effective until the governor of the withdrawingstate shall have sent formal notice in writing to the governor of each other party state informing said governors of the action of the legislature in repealing the compact and declaring an intention to withdraw.

Article IX. Severability and Construction

The provisions of this compact and of any supplementary agreement entered into hereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such supplementary agreement is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact or such supplementary agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact or any supplementary agreement entered into hereunder shall be held contrary to the constitution of any state participating therein, the compact or such supplementary agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. The provisions of this compact and of any supplementary agreement entered into pursuant hereto shall be liberally construed to effectuate the purposes thereof.


WVC 29 - 1 E- 3 §29-1E-3. Membership of board.
The governor shall appoint one of this state's three board members of the southern states energy board which is established by article two of the compact. Such member shall serve at the pleasure of the governor. The president of the Senate and the speaker of the House of Delegates shall each appoint one member of their respective houses, to serve at their pleasure, as board members of the southern states energy board. The president, the speaker and the governor are each hereby authorized to appoint an alternate member who may serve at and for such time as the regular member shall designate and shall have the same power and authority as the regular member when so serving.


WVC 29 - 1 E- 4 §29-1E-4. Employees of board.
The employees of the board shall be under such merit system as the board shall provide and, for the purposes of carrying out the provisions of article two (f), the board and its employees shall be considered a state agency, and the state employees' retirement system is hereby authorized to contract with the board in order to further or facilitate the activities of the board pursuant to article two (f) of the compact. No such contract shall take effect prior to its approval by the governor.


WVC 29 - 1 E- 5 §29-1E-5. Duties of members of board.
(a) The members of the board appointed and serving in accordance with section two of this article shall assist in the coordination of atomic and other energy-related activities within this state.

(b) The board members are hereby authorized and empowered to assist in the orderly development of atomic and other energy-related knowledge within the state of West Virginia.


WVC 29 - 1 E- 6 §29-1E-6. Supplementary agreements.
Any supplementary agreement entered into under article six of the compact requiring the expenditure of funds shall not become effective as to the state until the required funds are appropriated by the Legislature.


WVC 29 - 1 E- 7 §29-1E-7. Cooperation of state agencies, boards, departments, etc.
The departments, boards, agencies, commissions, officers and employees of the state and its subdivisions are authorized to cooperate with the board in the furtherance of any of its activities pursuant to this compact.


WVC 29 - 1 E- 8 §29-1E-8. Appropriations.
The Legislature may appropriate such funds as it deems necessary to carry out the provisions of this chapter, article, and sections.


WVC 29 - 1 E- 9 §29-1E-9. Severability clause.
If for any reason any section or provision of this article shall be held to be unconstitutional or invalid, such unconstitutionality or invalidity shall not affect the remainder of this article.


WVC 29 - 1 E- 10 §29-1E-10. Effective date of amendments to compact; prior compact to continue in force.
The amendatory provisions to section two of this article enacted in the year one thousand nine hundred seventy-nine shall become effective at such time as nine of the eligible party states to the southern interstate nuclear compact, which may include the Commonwealth of Puerto Rico, and the United States Virgin Islands, approve substantially the same changes in the compact as are provided for in section two of this article and the Congress of the United States consents to the compact, substantially as amended by section two of this article; until such time, this state shall continue to remain a member of the southern interstate nuclear compact as set forth in chapter three, acts of the Legislature, one thousand nine hundred sixty-four.


WVC 29 - 1 F- ARTICLE 1F. WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION DISTRICT COMPACT.


WVC 29 - 1 F- 1 §29-1F-1. Wheeling Creek Watershed protection and flood prevention district compact approved.
The following Wheeling Creek Watershed protection and flood prevention district compact, which has been negotiated by representatives of the commonwealth of Pennsylvania and the state of West Virginia, is hereby approved, ratified, adopted, enacted into law and entered into by the state of West Virginia as a party thereto and signatory state, namely:

WHEELING CREEK WATERSHED PROTECTION AND FLOOD
PREVENTION DISTRICT COMPACT
Article I. Recitation of Reasons for Compact.
WHEREAS, Wheeling Creek, a tributary of the Ohio River, arises in Pennsylvania, flows through Washington and Greene Counties of that commonwealth, enters the state of West Virginia, flows through Marshall and Ohio Counties, West Virginia, and empties into the Ohio River at Wheeling, West Virginia; and

WHEREAS, The inhabitants of Marshall and Ohio Counties, West Virginia, and, also, but to a much lesser degree, the inhabitants of Washington and Greene Counties, Pennsylvania, living along Wheeling Creek have over the years experienced loss of life and property from flooding of that stream; and

WHEREAS, Surveys made by the soil conservation service of the United States department of agriculture indicate that the inhabitants of the four counties named can best be protected from the flooding of Wheeling Creek by flood prevention dams constructed thereon with some of the dams being located on the upper reaches of the stream and its tributaries in the commonwealth of Pennsylvania; and

WHEREAS, The federal Watershed Protection and Flood Prevention Act of 1954, as amended, authorizes, under certain circumstances, federal assistance to local organizations in preparing and carrying out undertakings for flood prevention and the conservation, development, utilization and disposal of water in watershed or subwatershed area; and

WHEREAS, No local organization within the meaning of the federal act aforesaid, established by or organized under the laws of West Virginia, is competent under state laws, to acquire land for, construct, and operate, with or without federal assistance, flood prevention facilities in the commonwealth of Pennsylvania, and it appears that no such local organization established by or organized under the laws of the commonwealth of Pennsylvania can justify the expenditure of locally raised funds to construct and operate flood prevention facilities which will benefit primarily the inhabitants of the neighboring state of West Virginia; and

WHEREAS, Facilities erected on the upper reaches of Wheeling Creek and its tributaries for flood control and prevention can nevertheless have a recreational value for the citizens of both West Virginia and Pennsylvania and particularly the citizens of Ohio and Marshall Counties, West Virginia, and Washington and Greene Counties, Pennsylvania; accordingly, for purposes of promoting that potential, as well as providing a vehicle or means whereby federal assistance may be enlisted for the protection of citizens of her neighboring state of West Virginia from the flooding of Wheeling Creek, the commonwealth of Pennsylvania joins with the state of West Virginia in negotiating and ratifying this compact; now therefore,

Article II. Wheeling Creek Watershed Protection and
Flood Prevention District Created.
The commonwealth of Pennsylvania and the state of West Virginia hereby create as an agency and instrumentality of the governments thereof a district to be known as the "Wheeling Creek Watershed protection and flood prevention district," hereinafter called the district, which shall embrace all territory in the commonwealth of Pennsylvania and the state of West Virginia, the water in which flows ultimately into Wheeling Creek or its tributaries.

Article III. Wheeling Creek Watershed Protection and
Flood Prevention Commission Created.
The commonwealth of Pennsylvania and the state of WestVirginia hereby create as the governing body of the district the "Wheeling Creek Watershed protection and flood prevention commission," hereinafter called the commission, which shall be a body corporate, with the powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the General Assembly of Pennsylvania and the Legislature of West Virginia or by act or acts of the Congress of the United States.

Article IV. Composition of Commission.
The commission shall consist of five commissioners from Pennsylvania and five commissioners from West Virginia, each of whom shall be a citizen of the commonwealth or state from which he is appointed. The commissioners from the commonwealth and from the state shall be chosen in the manner and for the terms provided by the laws of the commonwealth or state from which they shall be appointed, and any commissioner may be removed or suspended from office as provided by the law of the commonwealth or state from which he shall be appointed. Vacancies on the commission shall be filled in the manner provided by the laws of the commonwealth or state among whose representation on the commission the vacancy occurs.

The commissioners shall serve without compensation from the commission but they shall be paid by the commission their actual expenses incurred and incident to the performance of their duties.

Article V. Organization of Commission.
The commission shall meet and organize within sixty days after the effective date of this compact, shall elect from its number a chairman and vice chairman, and shall appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall determine their qualifications and fix their duties and compensation. It shall adopt a seal and suitable bylaws, and shall adopt and promulgate rules and regulations for its management and control. It may establish and maintain one or more offices within the district for the transaction of its business, and may meet at any time or place. The presence of three commissioners from the commonwealth of Pennsylvania and three commissioners from the state of West Virginia shall constitute a quorum, and a majority vote of the quorum shall be necessary to pass upon matters before the commission.

Article VI. Powers and Duties.
The commission is hereby authorized and empowered:

(a) To be and serve in the capacity of a local organization within the meaning of the Watershed Protection and Flood Prevention Act of the eighty-third Congress of the United States, second session, (Public Law 566), approved August 4, 1954, as from time to time amended, and in that capacity the commission shall have the following authority and powers:

(1) To apply for and receive federal financial and other assistance in preparing and carrying out plans for works of improvement as that term is defined in said federal act, as from time to time amended, hereinafter referred to as works of improvement, and to apply for and receive federal financial and other assistance under the aforementioned or other federal acts in preparing and carrying out plans for public fish and wildlife or recreational development in connection with works of improvement, including the construction and operation of all facilities which may be necessary or incident to such works of improvement and public fish and wildlife or recreational development in connection therewith.

(2) To acquire, or, with respect to interests in land to be acquired by condemnation, provide assurances satisfactory to the secretary of agriculture of the United States or other agent or agency of the United States that the commission will acquire such land, easements or right-of-ways as will be needed in connection with works of improvement, and public fish and wildlife or recreational development and facilities in connection with works of improvement, installed with federal assistance.

(3) To agree to operate and maintain any reservoir or other area included in a plan for works of improvement or public fish and wildlife or recreational development and facilities.

(4) To assume all or such proportionate share, as is determined by the secretary of agriculture of the United States or other agent or agency of the United States, of the cost of installing any works of improvement, involving federal assistance, with is applicable to the agricultural phases of the conservation, development, utilization and disposal of water or for fish and wildlife or recreational development and facilities or to purposes other than flood prevention and features relating thereto.

(5) To make arrangements satisfactory to the secretary of agriculture of the United States or other agent or agency of the United States for defraying costs of operating and maintaining works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement: Provided, That such arrangements shall be based solely upon contributions, allotments or commitments of funds to the district or commission.

(6) To acquire, or provide assurance that landowners or water users have acquired, such water rights, pursuant to the law of the commonwealth or state applicable thereto, as may be needed in the installation and operation of the works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement.

(7) To cooperate with soil conservation districts in obtaining agreements to carry out recommended soil conservation measures and proper farm plans from owners of land situated in the drainage area above each retention reservoir to be installed with or without federal assistance.

(8) To apply for and receive federal loans or advancements to finance the local share of costs of carrying out works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement, and to submit a plan of repayment satisfactory to the secretary of agriculture or other agent or agency of the United States for any loan or advancement: Provided, That such plan of repayment shall be based solely upon contributions, allotments or commitments of funds to the district or commission.

(9) To cooperate, and enter into agreements with, the secretary of agriculture of the United States or other agent or agency of the United States, and to do all other things required, not inconsistent with the provisions of this compact and the laws of the commonwealth of Pennsylvania and the state of West Virginia, to obtain maximum federal financial assistance for works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement.

(b) To acquire within the district, land, easements, right-of-ways and other property rights as may be needed in connection with works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement and to make studies respecting, and to plan, construct, maintain and operate works of improvement within the district and public fish and wildlife or recreational development and facilities in connection with such works of improvement.

(c) To obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, eminent domain or otherwise, any property, real or personal, or rights therein for any of the purposes specified in this article of the compact: Provided, That eminent domain proceedings shall be instituted and prosecuted in the manner and forms provided by the laws of the commonwealth or state in which the property or property rights proceeded against are situate: Provided, however, That no property now or hereafter vested in or held by the commonwealth of Pennsylvania or the state of West Virginia, or by any county, city, town, village, district, township, municipality or other political subdivision thereof shall be taken by the districtwithout the consent of the commonwealth, state or political subdivision which owns the same.

(d) To maintain, administer and improve any properties acquired, to charge fees for use of, and receive income from, such properties and to expend such income in carrying out the purposes and provisions of this compact, and to lease any of its property or interests therein in accordance with the following provisions and requirements: The board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, shall each have the option of leasing from the commission for such period as the lessee may specify all or any part of the works of improvement and the public fish and wildlife and recreational development and facilities in connection with works of improvement located within their respective counties upon the following terms and conditions: (a) That in each such lease the lessee in consideration thereof pay to the lessor the sum of one dollar and agree to fully maintain at its (the lessee's) expense all works of improvement and all such development and facilities in connection therewith located within the county of the lessee in accordance with the requirements of the Watershed Protection and Flood Prevention Act of the eighty-third Congress of the United States, second session, (Public Law 566), approved August 4, 1954, as from time to time amended, and all agreements and work plans made or formulated thereunder with respect to such works of improvement and such development and facilities in connection therewith located within the county of the lessee, and that for failure of the lessee to comply with such agreement, the lessor shall be given the right in the lease agreement to cancel the lease upon thirty days' written notice to the lessee; (b) that any such lease not be inconsistent with the provisions, or impair the purposes, of this compact; and (c) that any such lease be approved by the secretary of agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder. In the event the board of commissioners or county commission of any one of the four counties named does not, within six months from the completion of the works of improvement and all such development and facilities in connection therewith located in such county, elect in writing transmitted to the commission to exercise the option given to it by the foregoing provisions, or in the event such option is exercised and the lease to such board of commissioners or county commission is subsequently canceled because of violation of the provision of the lease by the lessee, or in the event such option is exercised and the board of commissioners or county commission subsequently chooses not to renew its lease, the commissioners may lease all or any part of the works of improvement and all such development and facilities in connection therewith located within such county to any other lessee which the commission may choose, and upon such terms as may be agreed upon, provided (a) that any such lease be approved by the board of commissioners or county commission of the county in which any part or all of the works of improvement and all such development and facilities in connection therewith are located; (b) that any such lease not be inconsistent with the provisions, or impair the purposes, of this compact; (c) that any such lease be approved by the secretary of agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder; and the option of leasing in the board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, shall include the right to sublease on the same terms and conditions set out in this paragraph designated (d) to any individual, corporation, municipal subdivision or municipal authority without the approvalof the Wheeling Creek Watershed protection and flood prevention commission.

(e) To enter into contracts and other arrangements with agencies of the United States, with persons, firms or corporations, including both public and private corporations, with the government of the state and the government of the commonwealth, or any department or agency of the United States, the state or the commonwealth, with governmental divisions, with soil conservation, drainage, flood control, soil erosion or other improvement districts in the state or the commonwealth, for cooperation or assistance in constructing, improving, operating or maintaining works of improvement within the district, and public fish and wildlife or recreational development and facilities in connection with works of improvement, or in preventing floods, damage from sediment deposited by floodwaters, or in clearance of stream beds, or in conserving, developing, utilizing and disposing of water in the district, or for making surveys, investigations or reports thereof.

(f) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources, and to accept and use, consistent with the purposes of this compact, bequests, devises, gifts and donations from any person, firm, corporation, state, commonwealth or agency or political subdivision thereof.

(g) To do any and all things necessary or convenient for the purpose of promoting, developing and advancing the purposes of said district herein set forth, and in promoting, developing and advancing the recreational development and facilities incidental to the works of improvement that shall be constructed to achieve said purposes.

(h) To delegate any authority given to it by law to any of its agents or employees, and to expend its funds in the execution of the powers and authority herein given.

(i) The commission, subject to the conditions herein, may sell, exchange or lease property, real or personal, or any interest therein.

When the property, or any interest or right therein, is being held for future use, it may be leased. When the real property, or any part thereof, or any interest or right therein, is deemed by the commission not necessary, or desirable for present or presently foreseeable future use, it may be exchanged for other property, or any interest or right therein, deemed by the commission to be necessary or desirable for present or presently foreseeable future use, or may be sold. In addition the commission may exchange real property, or any part thereof, or any interest or right therein, even though it may be desirable or necessary for present or presently foreseeable future use, if the exchange is made for other real property, or any interest or right therein, in close proximity thereto which the commission deems of equal or superior value for presently foreseeable future use. In making exchanges the commission may make allowances for differences in values of the properties being exchanged and may move or pay the cost of moving buildings, structures or appurtenances in connection with the exchange.

Every such sale of real property, or any interest or right therein or structure thereon, shall be at public auction in the county in which the real property, or the greater part thereof in value, is located, and the commission shall advertise, by publication or otherwise, the time, place and terms of such sale at least twenty days prior thereto. The property shall be sold in the manner which will bring the highest and best price therefor. The commission may reject any and all bids received at the sale. The commission shall keep a record, open to public inspection, indicating the manner in which such real property or any interest or right therein or structure thereon, was publicly advertised for sale, the highest bid received therefor and from whom, the person to whom sold, and payment received therefor. Such record shall be kept for a period of five years and may thereafter be destroyed.

The commission may insert in a deed or conveyance, whetherit involves an exchange, lease or sale, such conditions as are in the public interest.

All moneys received from the exchange, sale or lease of real or personal property, or any right or interest therein, shall be paid into the commission's treasury and used for the purpose for which the commission was created.

If the commission has heretofore sold and conveyed away or leased any such property, such transaction and the documents of lease or transfer therefor are hereby approved and confirmed and shall be as effective as if the authority to lease or convey the said property had been given in this statute as originally enacted.

Article VII. Fiscal Affairs.
The commission shall submit at the appropriate or designated time to the board of commissioners of the County of Ohio, West Virginia, the county commission of Marshall County, West Virginia, the board of commissioners of Greene County, Pennsylvania, and the board of commissioners of Washington County, Pennsylvania, an annual budget of its estimated expenditures, which budget shall contain specific recommendations of the amount or amounts to be appropriated by each of the named governing bodies.

The commission shall not incur any obligation prior to the commitment or allotment of funds by the named governing bodies or by other sources adequate to meet the same.

The commission shall keep accurate accounts of all receipts and disbursements, which accounts shall be open for inspection at any reasonable time and shall be subject to audit by representatives of contributing political subdivisions and of the commonwealth of Pennsylvania and state of West Virginia. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws: Provided, That all receipts and disbursements of the commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be transmitted to each contributor of funds to the district or commission.

Article VIII. Exemption from Taxes and Fees.
The district and the property belonging to the district shall be exempt from the payment of all taxes or fees imposed by the commonwealth of Pennsylvania or the state of West Virginia and by any agency and political subdivision thereof.

Article IX. Effective Date of Compact.
This compact shall become effective upon ratification by the General Assembly of the commonwealth of Pennsylvania and the Legislature of the state of West Virginia and upon approval by the Congress of the United States.


WVC 29 - 1 F- 2 §29-1F-2. Appointment of members of commission; vacancies.
In pursuance of article IV of the above compact, there shall be five members of the Wheeling Creek watershed protection and flood prevention commission from the state of West Virginia, one of whom shall be a member of the board of commissioners of the county of Ohio, West Virginia, appointed by that body to serve at its will and pleasure, one of whom shall be a citizen of the city of Wheeling, Ohio county, West Virginia, appointed by the board of commissioners of the county of Ohio, West Virginia, to serve at its will and pleasure, one of whom shall be a member of the county court of Marshall county, West Virginia, appointed by that body to serve at its will and pleasure, one of whom shall be a citizen of Marshall county, West Virginia, appointed by the county court thereof to serve at its will and pleasure, and one of whom shall be a member of the board of supervisors of the northern panhandle soil conservation district, appointed by said board of supervisors to serve at its will and pleasure: Provided, That (1) the citizen appointed by the board of commissioners of the county of Ohio, West Virginia, shall not be a member of that body; (2) the citizen appointed by the county court of Marshal county, West Virginia, shall not be a member of that body; and (3) the member appointed by the board of supervisors of the northern panhandle soil conservation district shall not be a resident of either Ohio or Marshall county, West Virginia.

Vacancies shall be filled by the appointing authority responsible for making the appointment to the position vacated.


WVC 29 - 1 F- 3 §29-1F-3. Contributions by political subdivisions.
The county court of Marshall county, West Virginia, and the board of commissioners of the county of Ohio, West Virginia, and any municipality therein, which may reasonably be expected to receive a benefit from the construction, improvement, operation or maintenance of any works of improvement, are hereby authorized and empowered to contribute moneys to the district by appropriation from their respective general funds not otherwise appropriated, and may set up in their respective budgets funds to be spent for such purposes, and such counties or municipalities may levy and collect taxes for such purposes, in the manner provided by law: Provided, That in case sufficient funds cannot be raised by ordinary levies, additional funds may be raised by the counties of Marshall and Ohio, and any such municipality, as provided by section sixteen, article eight, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended.

Such county court, board of commissioners, and municipal corporations are hereby authorized and empowered to transfer and convey to the district property of any kind heretofore acquired by said county court, board of commissioners, and municipalities, if acceptable to the district as adaptable for use for the purposes of the district, such transfers or conveyances to be without consideration or for such price and upon such terms and conditions as such county court, board of commissioners or municipalities shall determine to be proper.


WVC 29 - 1 F- 4 §29-1F-4. Ohio county board of commissioners authorized to transfer certain special levy receipts to the Wheeling Creek watershed protection and flood prevention commission.
The board of commissioners of the county of Ohio is hereby authorized and empowered to transfer to the Wheeling Creek watershed protection and flood prevention commission established by this article all tax revenue and interest thereon received pursuant to and as the result of the special levy election held in Ohio county on May 12, 1964, to raise funds for the Wheeling Creek watershed project, which election was authorized and called by the board of commissioners of the county of Ohio by order entered on March 31, 1964: Provided, That before making any such transfer the board of commissioners of the county of Ohio shall obtain from the Wheeling Creek watershed protection and flood prevention commission written assurances that all such revenue and interest thereon to be so transferred shall be expended solely for the purposes for which such special levies were authorized: Provided further, That upon the receipt of such written assurances the board of commissioners of the county of Ohio shall not be liable for any misapplication by the Wheeling Creek watershed protection and flood prevention commission of any such revenues and interest thereon so transferred.


WVC 29 - 1 F- 5 §29-1F-5. When commission authorized to dispose of real and personal property.
Subdivision (i), article VI, of the Wheeling Creek Watershed protection and flood prevention district compact shall be effective from the date of its enactment insofar as it relates to property situated in the state of West Virginia, but shall not apply to property situated in the commonwealth of Pennsylvania until and unless enacted by said commonwealth.


WVC 29 - 1 G- ARTICLE 1G. INTERSTATE COMPACT ON AIR POLLUTION.


WVC 29 - 1 G- 1 §§29-1G-1 to 29-1G-5.

Repealed.

Acts, 1979 Reg. Sess., Ch. 3.


WVC 29 - 1 H- ARTICLE 1H. APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMPACT.


WVC 29 - 1 H- 1 §29-1H-1. Appalachian states low-level radioactive waste compact approved.

The following Appalachian States Low-Level Radioactive Waste Compact, which has been negotiated by representatives of the Commonwealth of Pennsylvania, and the states of West Virginia, Delaware and Maryland, is hereby approved, ratified, adopted, enacted into law, and entered into by the state of West Virginia as a party state thereto, namely:

APPALACHIAN STATES LOW-LEVEL
RADIOACTIVE WASTE COMPACT
Preamble
WHEREAS, The United States Congress, by enacting the Low-Level Radioactive Waste Policy Act (42 U.S.C. Sections 2021b-2021d) has encouraged the use of interstate compacts to provide for the establishment and operation of facilities for regional management of low-level radioactive waste; and

WHEREAS, Under section 4 (a) (1) (A) of the Low-Level Radioactive Waste Policy Act (42 U.S.C. Sections 2021 (a) (1) (A)), each state is responsible for providing for the capacity for disposal of low-level radioactive waste generated within its borders; and

WHEREAS, To promote the health, safety and welfare of residents within the Commonwealth of Pennsylvania and the states of West Virginia, Delaware and Maryland, the aforementioned states wish to enter into a compact for the regional management of low-level radioactive waste;

Now, therefore, the Commonwealth of Pennsylvania and the states of West Virginia, Delaware and Maryland hereby agree to enter into the Appalachian States Low-Level Radioactive Waste Compact.

Article 1
Definitions
As used in this Compact, unless the context clearly indicates otherwise:

(a) "Broker" means any intermediate person who handles, treats, processes, stores, packages, ships or otherwise has responsibility for or possesses low-level waste obtained from a generator.

(b) "Carrier" means a person who transports low-level waste to a regional facility.

(c) "Commission" means the Appalachian States Low-Level Radioactive Waste Commission.

(d) "Disposal" means the isolation of low-level waste from the biosphere.

(e) "Facility" means any real or personal property, within the region, and improvements thereof or thereon, and any and all plant, structures, machinery, and equipment, acquired, constructed, operated or maintained for the management or disposal of low-level waste.

(f) "Generate" means to produce low-level waste requiring disposal.

(g) "Generator" means a person whose activity results in the production of low-level waste requiring disposal.

(h) "Hazardous life" means the time required for radioactive materials to decay to safe levels, as defined by the time period for the concentration of radioactive materials within a given container or package to decay to maximum permissible concentrations as defined by federal law or by standards to be set by a host state, whichever is more restrictive.

(i) "Host state" means Pennsylvania or any other party state so designated by the Commission in accordance with Article 3 of this Compact.

(j) "Institutional control period" means the time of the continued observation, monitoring and care of the regional facility following transfer of control from the operator to the custodial agency.

(k) "Low-level waste" means radioactive waste that:

(1) Is neither high-level waste or transuranic waste, nor spent nuclear fuel, nor by-product material as defined in Section 11 (e)(2) of the Atomic Energy Act of 1954, as amended; and

(2) Is classified by the federal government as low-levelwaste, consistent with existing law; but does not include waste generated as a result of atomic energy defense activities of the federal government, as defined in Public Law 96-573, or federal research and development activities.

(l) "Management" means the reduction, collection, consolidation, storage, packaging or treatment of low-level waste.

(m) "Operator" means a person who operates a regional facility.

(n) "Party state" means any state that has become a party in accordance with Article 5 of this Compact.

(o) "Person" means an individual, corporation, partnership or other legal entity, whether public or private.

(p) "Region" means the combined geographical area within the boundaries of the party states.

(q) "Regional facility" means a facility within any party state which has been approved by the Commission for the disposal of low-level waste.

(r) "Shallow-land burial" means the disposal of low-level radioactive waste directly in subsurface trenches without additional confinement in engineered structures or by proper packaging in containers as determined by the law of the host state.

(s) "Transuranic waste" means low-level waste containing radionuclides with an atomic number greater than 92 which are excluded from shallow-land burial by the federal government.

Article 2
The Commission
(A) Creation and Organization.

(1) Creation -- There is hereby created the Appalachian States Low-Level Radioactive Waste Commission. The Commission is hereby created as a body corporate and politic, with succession for the duration of this Compact, as an agency and instrumentality of the governments of the respective signatory parties, but separate and distinct from the respective signatory party states. The Commission shall have central offices located in Pennsylvania.

(2) Commission Membership -- The Commission shall consist of two voting members from each party state to be appointed according to the laws of each party state, and two additional voting members from each host state to be appointed according to the laws of each host state. Upon selection of the site of the regional facility, an additional voting member shall be appointed to the Commission who shall be a resident of the county or municipality where the facility is to be located. The appointing authority of each party state shall notify the Commission in writing of the identities of the members and of any alternates. An alternate may vote and act in the member's absence. No member shall have a financial interest in any industry which generates low-level radioactive waste, any low-level radioactive waste regional facility or any related industry for the duration of the member's term. No more than one half the members and alternates from any party state shall have been employed by or be employed by a low-level waste generator or related industry upon appointment to or during their tenure of office: Provided, That no member shall have been employed by or be employed by a regional facility operator. No member or alternate from any party state shall accept employment from any regional facility operator or brokers for at least three years after leaving office.

(3) Compensation -- Members of the Commission and alternates shall serve without compensation from the Commission but may be reimbursed for necessary expenses incurred in and incident to the performance of their duties.

(4) Voting Power -- Each Commission member is entitled to one vote. Unless otherwise provided in this Compact, affirmative votes by a majority of a host state's members are necessary for the Commission to take any action related to the regionalfacility and the disposal and management of low-level waste within that host state.

(5) Organization and Procedure.

(a) The Commission shall provide for its own organization and procedures, and shall adopt bylaws not inconsistent with this Compact and any rules and regulations necessary to implement this Compact. It shall meet at least once a year in the county selected to host a regional facility and shall elect a chairman and vice chairman from among its members. In the absence of the chairman, the vice chairman shall serve.

(b) All meetings of the Commission shall be open to the public with at least fourteen days advance notice, except that the chairman may convene an emergency meeting with less advance notice. Each municipality and county selected to host a regional facility shall be specifically notified in advance of all Commission meetings. All meetings of the Commission shall be conducted in a manner that substantially conforms to the federal Administrative Procedure Act. The Commission may, by a two-thirds vote, including approval of a majority of each host state's Commission members, hold an Executive Session closed to the public for the purpose of: Considering or discussing legally privileged or proprietary information; to consider dismissal, disciplining of, or hearing complaints or charges brought against an employee or other public agent unless such person requests such public hearing; or to consult with its attorney regarding information or strategy in connection with specific litigation. The reason for the Executive Session must be announced at least fourteen days prior to the Executive Session except that the chairman may convene an emergency meeting with less advance notice in which case the reason for the Executive Session must be announced at the open meeting immediately subsequent to the Executive Session. All action taken in violation of this open meeting provision shall be null and void.

(c) Detailed written minutes shall be kept of all meetings of the Commission. All decisions, files, records and data of the Commission except for information privileged against introduction in judicial proceedings, personnel records, and minutes of a properly convened Executive Session shall be open to public inspection subject to a procedure that substantially conforms to the Freedom of Information Act (Public Law 89-554, 5 U.S.C. 552) and applicable West Virginia law, and may be copied upon request and payment of fees which shall be no higher than necessary to recover copying costs.

(d) The Commission shall select an appropriate staff, including an executive director, to carry out the duties and functions assigned by the Commission. Notwithstanding any other provision of law, the Commission may hire and/or retain its own legal counsel.

(e) Any person aggrieved by a final decision of the Commission which adversely affects the legal rights, duties or privileges of such person, may petition a court of competent jurisdiction, within sixty days after the Commission's final decision, to obtain judicial review of said final decisions.

(f) Liabilities of the Commission shall not be deemed liabilities of the party states. Members of the Commission shall not be personally liable for actions taken in their official capacity.

(B) Powers and Duties.

(1) The Commission:

(a) Shall conduct research and establish regulations to promote a reasonable reduction of volume and curie content of low-level wastes generated in the region. The regulations shall be reviewed and, if necessary, revised by the Commission at least annually.

(b) Shall ensure, to the extent authorized by federal law, that low-level wastes are safely disposed of within the region, except that the Commission shall have no power or authority to license, regulate or otherwise develop a regional facility, such powers and authority being reserved for the host state(s) as permitted under the law.

(c) Shall designate as "host states" any party state which generates twenty-five percent or more of Pennsylvania's volume or total curie content of low-level waste generated based on a comparison of averages over three successive years, as determined by the Commission. This determination shall be based on volume or total curie content, whichever is greater.

(d) Shall ensure, to the extent authorized by federal law, that low-level waste packages brought into the regional facility for disposal conform to applicable state and federal regulations. Low-level waste brokers or generators who violate these regulations will be subject to a fine or other penalty imposed by the Commission, including restricted access to a regional facility. The Commission may impose such fines and/or penalties in addition to any other penalty levied by the party states pursuant to Article 4(D).

(e) Shall establish such advisory committees as it deems necessary for the purpose of advising the Commission on matters pertaining to the management and disposal of low-level waste.

(f) May contract to accomplish its duties and effectuate its powers subject to projected available resources. No contract made by the Commission shall bind a party state.

(g) Shall prepare contingency plans for management and disposal of low-level waste in the event any regional facility should be closed or otherwise unavailable.

(h) Shall examine all records of operators of regional facilities pertaining to operating costs, profits or the assessment or collection of any charge, fee or surcharge, and may make recommendations to the host state(s) which shall review the recommendations in accordance with its (their) own sovereign laws.

(i) Shall have the power to sue and be sued subject to Article 2 (A) (5) (e) and may seek to intervene in any administrative or judicial proceeding.

(j) Shall assemble and make available to the party states and to the public, information concerning low-level waste management and disposal needs, technologies and problems.

(k) Shall keep current and annual inventories of all generators by name and quantity of low-level waste generated within the region, based upon information provided by the party states. Inventory information shall include both volume in cubic feet and total curie content of the low-level waste and all available information on chemical composition and toxicity of such wastes.

(l) Shall keep an inventory of all regional facilities and specialized facilities, including, but not necessarily restricted to, information on their size, capacity, and location, as well as specific wastes capable of being managed, and the projected useful life of each regional facility.

(m) Shall make and publish an annual report to the governors of the signatory party states and to the public detailing its programs, operations and finances, including copies of the annual budget and the independent audit required by this Compact.

(n) Notwithstanding any other provision of this Compact to the contrary, may, with the unanimous approval of the Commission members of the host state(s), enter into temporary agreements with nonparty states or other regional boards for the emergency disposal of low-level waste at the regional facility, if so authorized by law(s) of the host state(s), or other disposal facilities located in states that are not parties to this agreement.

(o) Shall promulgate regulations, pursuant to host state law, to specifically govern and define exactly what would constitute an emergency situation and exactly what restrictions and limitations would be placed on temporary agreements.

(p) Shall not accept any donations, grants, equipment, supplies, materials or services, conditional or otherwise, from any source, except from any federal agency and from party states which are certified as being legal and proper under the laws of the donating party state.

(C) Budget and Operation.

(1) The Commission shall establish a fiscal year which conforms to the fiscal year of the Commonwealth of Pennsylvania.

(2) Upon legislative enactment of this Compact by two party states and each year until the regional facility becomes available, the Commission shall adopt a current expense budget for its fiscal year. The budget shall include the Commission's estimated expenses for administration. Such expenses shall be allocated to the party states according to the following formula:

Each designated initial host state will be allocated costs equal to twice the costs of the other party states, but such costs will not exceed two hundred thousand dollars.

Each remaining party state will be allocated a cost of one half the cost of the initial host state, but such costs will not exceed one hundred thousand dollars.

The party states will include the amounts allocated above in their respective budgets, subject to such review and approval as may be required by their respective budgetary processes. Such amounts shall be due and payable to the Commission in quarterly installments during the fiscal year.

(3) For continued funding of its activities, the Commission shall submit an annual budget request to each party state for funding, based upon the percentage of the region's waste generated in each state in the region, as reported in the latest available annual inventory required under Article 2 (B) (1) (k). The percentage of waste shall be based on volume of waste or total curie content as determined by the Commission.

(4) The Commission shall prepare and include in the annual report a budget showing anticipated receipts and disbursements for the ensuing year.

(5) Annual Independent Audit.

(a) As soon as practicable after the closing of the fiscal year, an audit shall be made of the financial accounts of the Commission. The audit shall be made by qualified certified public accountants selected by the Commission, who have no personal direct or indirect interest in the financial affairs of the Commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other officers as the Commission shall direct. Copies of the report shall be distributed to each Commission member and shall be made available for public distribution.

(b) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files and accounts and all other papers, things or property of the Commission. The representatives of the signatory parties shall have access to all books, documents, records, accounts, reports, files and all other papers, things or property belonging to or in use by the Commission and necessary to facilitate the audit; and, they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents and custodians.

Article 3
Rights, Responsibilities
and Obligations of Party States
(A) There shall be regional facilities sufficient to dispose of the low-level waste generated within the region. Each regional facility shall be capable of disposing of such low-level waste but in the form(s) required by regulations or license conditions. Specialized facilities for particular types of low-level waste management reduction or treatment may not be developed in any party state unless they are in accordance with the laws and regulations of such state and applicable federal laws and regulations.

(B) Each party state shall have equal access as other party states to regional facilities located within the region and accepting low-level waste: Provided, That the host state may close the regional facility located within its borders when necessary for public health and safety. However, a host state shall send notification to the Commission in writing within three(3) days of its action, and shall, within thirty (30) working days, provide in writing the reasons for the closing.

(C) Pennsylvania and party states which generated twenty-five percent or more of the volume or curies of low-level waste generated by Pennsylvania based on a comparison of averages over the three years, one thousand nine hundred eighty-two through one thousand nine hundred eighty-four, are designated as "initial host states" and are required to develop and host low-level waste sites as regional facilities. The percentage of waste from each state shall be determined by cubic foot volume or total curie content, whichever is greater.

(D) Party states which generated less than twenty-five percent of the volume or curies of low-level waste generated by Pennsylvania based on a comparison of averages over the years one thousand nine hundred eighty-two through one thousand nine hundred eighty-four shall be exempt from initial host state responsibilities. These states shall continue to be exempt as long as they generate less than the twenty-five percent threshold over successive three-year periods. Once a state generates an average of twenty-five percent or more of the volume or curies generated by Pennsylvania over a successive three-year period, it shall be designated as a "host state" for a thirty-year period by the Commission and shall immediately initiate development of a regional facility to be operational within five years. Such host state shall be prepared to accept at its regional facility low-level waste at least equal to that generated in the state. With Commission approval, any party state may volunteer to host a regional facility. The percentage of waste from each state shall be determined by either a cubic foot volume or total curie content, whichever is greater.

(E) Pennsylvania and other host states are obligated to develop regional facilities for the duration of this Compact. All regional facilities shall be designed for at least a thirty-year useful life. At the end of the facility's life, normal closure and maintenance procedures shall be initiated in accordance with the applicable requirements of the host state and the federal government. Each host state's obligation for operating regional facilities shall remain as long as the state continues to produce over a three-year period twenty-five percent or more of the volume or curies of low-level waste generated by Pennsylvania.

(F) Each host state shall:

(1) Cause a regional facility to be sited and developed on a timely basis.

(2) Ensure by law, consistent with applicable state and federal law, the protection and preservation of public health, safety and environmental quality in the siting, design, development, licensure or other regulation, operation, closure, decommissioning long-term care and the institutional control period of the regional facility within the state. To the extent authorized by federal law, a host state may adopt more stringent laws, rules or regulations than required by federal law.

(3) Ensure and maintain a manifest system which documents all waste-related activities of generators, brokers, carriers and related activities of generators, brokers, carriers and operators, and establish the chain of custody of waste from its initial generation to the end of its hazardous life. Copies of all such manifests shall be submitted to the Commission on a timely basis.

(4) Ensure that charges for disposal of low-level waste at the regional facility are sufficient to fully fund the safe disposal and perpetual care of the regional facility and that charges are assessed without discrimination as to the party state of origin.

(5) Submit an annual report to the Commission on the status of the regional facility which contains projections of the anticipated future capacity.

(6) Notify the Commission immediately if any exigency arises requiring the possible temporary or permanent closure of a regional facility within the state at a time earlier than was projected in the state's most recent annual report to the Commission.

(7) Require that the institutional control period of any disposal facility be at least as long as the hazardous life, as defined in Article 1(h), of the radioactive materials that are disposed at that facility.

(8) Prohibit the use of any shallow land burial, as defined in Article 1(r), and develop alternative means for treatment, storage and disposal of low-level waste.

(9) Establish by law, to the extent not prohibited by federal law, requirements for financial responsibility, including, but not limited to:

(a) Requirements for the purchase and maintenance of adequate insurance by generators, brokers, carriers and operators of the regional facility;

(b) Requirements for the establishment of a long-term care fund to be funded by a fee placed on generators to pay for preventive or corrective measures of low-level waste to the regional facility; and

(c) Any further financial responsibility requirements that shall be submitted by generators, brokers, carriers and operators as deemed necessary by the host state.

(G) Each party state:

(1) Shall appropriate its portion of the Commission's initial and annual budgets as set out in Article 2 (C) (2) and (3).

(2) To the extent authorized by federal law, shall develop and enforce procedures requiring low-level waste shipments originating within its borders and destined for a regional facility to conform to volume reduction, packaging and transportation requirements and regulations as well as any other requirements specified by the regional facility. Such procedures shall include but are not limited to:

(i) Periodic inspections of packaging and shipping practices;

(ii) Periodic inspections of low-level waste containers while in custody of carriers; and

(iii) Appropriate enforcement actions with respect to violations.

(3) To the extent authorized by federal law, shall after receiving notification from a host state, or other person, that a person in a party state has violated volume reduction, packaging, shipping or transportation requirements or regulations, take appropriate action to ensure that violations do not recur. Appropriate action shall include, but is not limited to, the requirement that a bond be posted by the violator to pay the cost of repackaging at the regional facility and the requirement that future shipments be inspected. Appropriate action may also include suspension of the violator's use of the regional facility. Should such suspension be imposed, the suspension shall remain in effect until such time as the violator has, to the satisfaction of the party state imposing such suspension, complied with the appropriate requirements or regulations upon which the suspension was based and has taken appropriate action to ensure that such violation or violations do not recur.

(4) Shall maintain a registry of all generators and quantities generated within the state.

(H) In the event of liability arising from the operation of any regional facility and during and after closure of that facility, each party state shall share in that liability in an amount equal to that state's share of the region's low-level waste disposed of at the facility. If such liability arises from negligence, malfeasance or neglect on the part of a host state or any party state, then any other host or party state(s) may make any claim allowable under law for that negligence, malfeasance or neglect. If such liability arises from a particular waste shipment or shipments to, or quantity of waste or condition at, the regional facility, then any host or party state may make any claim allowable under law for such liability. The percentage of waste shall be based on volume of waste or total curie content.

(I) A party state which fails to fulfill its obligations, including timely funding of the Commission may have its privileges under the Compact suspended or its membership in the Compact revoked by the Commission and be subject to any other legal and equitable remedies available to the party states.

Article 4
Prohibited Acts and Penalties
(A) It shall be unlawful for any person to dispose of low-level waste within the region except at a regional facility unless authorized by the Commission.

(B) After establishment of the regional facility or facilities, it shall be unlawful for any person to dispose of any low-level waste within the region unless the waste was generated within the region or unless authorized to do so both by the Commission and by law of the host state in which said disposal takes place. For the purposes of this Compact, waste generated within the region excludes radioactive material shipped from outside the party states to a waste management facility within the region. In determining whether to grant such authorization, the factors to be considered by the Commission shall include, but not be limited to, the following:

(1) The impact on the health, safety and environmental quality of the citizens of the party states;

(2) The impact of importing waste on the available capacity and projected life of the regional facility;

(3) The availability of a regional facility appropriate for the safe disposal of the type of low-level waste involved.

(C) Any and all low-level waste generated within the region shall be disposed of at a regional facility, except for specific cases agreed upon by the Commission, with the affirmative votes by a majority of the Commission members of the host state(s) affected by the decision.

(D) Generators, brokers and carriers of wastes, and owners and operators of sites shall be liable for their acts, omissions, conduct or relationships in accordance with all laws relating thereto. The party states shall impose a fine for any violation in an amount equal to the present and future costs associated with correcting any harm caused by the violation and shall assess punitive fines or penalties if it is deemed necessary. In addition, the host state shall bar any person who violates host state or federal regulations from using the regional facility until that person demonstrates to the satisfaction of the host state their ability and willingness to comply with the law.

(E) No commissioner, officer or employee shall:

(1) Be financially interested, either directly or indirectly, in a contract, sale, purchase, lease or transfer of real or personal property to which the Commission is a party.

(2) Solicit or accept money or any other thing of value in addition to the expenses paid to him by the Commission for services performed within the scope of his official duties.

(3) Offer money or anything of value for or in consideration of obtaining an appointment, promotion or privilege in his employment with the Commission.

(F) Any officer or employee who shall willfully violate any of the provisions of this article shall forfeit his office or employment.

(G) Any contract or agreement knowingly made in contravention of this section is void.

(H) Officers and employees of the Commission shall be subject, in addition to the provisions of this section, to such criminal and civil sanctions for misconduct in office as may be imposed by federal law and the law of the signatory state in which such misconduct occurs.

Article 5
Eligibility, Entry into Effect,
Congressional Consent, Withdrawal
(A) Only the states of Pennsylvania, West Virginia, Delaware and Maryland are eligible to become parties to this Compact.

(B) An eligible state may become a party state bylegislative enactment of this Compact or by executive order of the governor adopting this Compact: Provided, That a state becoming a party state by executive order shall cease to be a party state upon adjournment of the first general session of its legislature convened thereafter, unless the legislature shall have enacted this Compact before such adjournment.

(C) This Compact shall take effect when it has been enacted by the legislatures of Pennsylvania and one or more eligible states. However, subsections (B) and (C) of Article 4 shall not take effect until Congress has consented to this Compact. Every fifth year after such consent has been given, Congress may withdraw consent.

(D) A party state may withdraw from the Compact by repealing the enactment of this Compact, but no such withdrawal shall become effective until two years after enactment of the repealing legislation. If the withdrawing state is a host state, any regional facility in that state shall remain available to receive low-level waste generated within the fran region until five years after the effective date of the withdrawal.

Article 6
Construction and Severability
(A) The provisions of this Compact shall be broadly construed to carry out the purposes of the Compact, but the sovereign powers of a party state shall not unnecessarily be infringed.

(B) If any part or application of this Compact is held invalid, the remainder, or its application to other situations or persons, shall not be affected.


WVC 29 - 1 H- 2 §29-1H-2. Appointment of members of commission.
In pursuance of Article 2 of the Compact, the governor of the state of West Virginia, by and with the advice and consent of the Senate, shall appoint two persons as members of the Appalachian States Low-Level Radioactive Waste Commission from the state of West Virginia, each of whom shall be a resident and citizen of the state. The term of the member of the Commission first appointed shall be two years and of the other shall be four years, and their successors shall be appointed by the governor, by and with the advice and consent of the Senate, for terms of four years each. Each member of the Commission shall hold office until his successor has been appointed and qualified. Vacancies occurring in the office of any such member for any reason or cause shall be filled by appointment by the governor, by and with the advice and consent of the Senate, for the unexpired term.


WVC 29 - 1 H- 3 §29-1H-3. Powers of commission, duties of state officers, departments, etc.
There is hereby granted to the Commission and members of the Commission all of the powers provided for in the Compact and all the powers necessary or incidental to the carrying out of the Compact in every particular. All officers of this state are hereby authorized and directed to do all things falling within their respective provinces and jurisdiction necessary to or incidental to the carrying out of the Compact in every particular, it being hereby declared to be the policy of this state to perform and carry out the Compact and to accomplish the purposes thereof. The director of health shall have the primary responsibility therefor.


WVC 29 - 1 H- 4 §29-1H-4. Powers granted herein supplemental to other powers vested in Commission.
Any powers herein granted to the Commission shall be regarded as in aid of and supplemental to and in no case a limitation upon any of the powers vested in the Commission by other laws of this state, by the other party states, by Congress or the terms of the Compact.


WVC 29 - 1 H- 5 §29-1H-5. Cooperation of state agencies, boards, departments, subdivisions, etc.
The departments, boards, agencies, commissions, officers and employees of the state and its subdivisions are authorized and directed to cooperate with the director of health in the furtherance of any of his activities pursuant to the Appalachian States Low-Level Radioactive Waste Compact and the provisions of this article.


WVC 29 - 1 H- 6 §29-1H-6. Rules and regulations.
The director of health is authorized to promulgate and adopt rules and regulations as are necessary and incidental to the carrying out of the Compact and this article. Such authorization shall include, without limitation, rules and regulations necessary and incidental to carrying out subsection two, section (g), article three of the Compact. Such rules and regulations shall be promulgated only in accordance with article three, section twenty-nine-a of this code.


WVC 29 - 1 H- 7 §29-1H-7. Enforcement.
(a) Following the establishment of a regional facility pursuant to the Appalachian States Low-Level Radioactive Waste Compact, the director of health, the attorney general or the prosecuting attorney of any county in which a violation occurs may seek in the name of the state an injunction against any person in violation of any of the provisions of said Compact, this article or the rules and regulations promulgated pursuant to said Compact or this article. In seeking such an injunction it is not necessary for the state to post bond nor to allege or prove at any stage of the proceeding that irreparable harm will occur if the injunction is not issued or that the remedy of the law is inadequate. An application for injunctive relief under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for have not been exhausted or invoked against the person or persons against whom such relief is sought.

(b) The director of health is hereby authorized to remedy or to contract to remedy any condition he deems a threat to public health and safety arising from a violation of the Appalachian States Low-Level Radioactive Waste Compact, this article or the rules and regulations promulgated pursuant to the Compact or this article and to proceed pursuant to subsection (c) of this section to recover judgment for the costs thereof.

(c) Pursuant to section (d), Article 4 of the Appalachian States Low-level Radioactive Waste Compact, the director of health and the attorney general are hereby authorized to prosecute actions for judgments pursuant to subsection (b) of this section. The director of health and the attorney general are further authorized to institute actions to assess punitive fines or penalties pursuant to section (d), Article 4 of the Compact for violations of the Compact, this article or rules or regulations promulgated pursuant to the Compact or this article. Such actions may be brought at the option of the state in the circuit court of any county in which a violation occurred or may be brought as a contested case pursuant to chapter twenty-nine-a of this code. In any action brought under the provisions of chapter twenty-nine-a of this code, the director of health or the attorney general shall have the power to issue subpoenas and subpoenas duces tecum on behalf of the state or any interested party. The punitive fines and penalties may not exceed the fines provided in section eight of this article and may only be sought in lieu thereof.


WVC 29 - 1 H- 8 §29-1H-8. Penalties.
(a) Any person who after the establishment of a regional facility pursuant to the Appalachian States Low-Level Radioactive Waste Compact violates or causes to be violated the provisions of section (a) or section (b), Article 4 of the Compact or any of the provisions of or regulations regarding packaging and transportation promulgated pursuant to subsection two, section (g), Article 3 of the Compact is guilty of a felony, and upon conviction thereof, shall be fined not less than one thousand dollars nor more than twenty-five thousand dollars for each day of violation, or imprisoned in the penitentiary not less than one nor more than five years, or both fined and imprisoned. If the conviction is for a violation committed after a first conviction of such person under this subsection, the person shall be guilty of a felony, and upon conviction thereof, shall be fined not less than five thousand dollars nor more than fifty thousand dollars for each day of violation, or shall be imprisoned not less than two nor more than ten years, or both fined and imprisoned.

(b) Any person who after the establishment of a regional facility pursuant to this Compact violates or causes to be violated the provisions of any rules and regulations regarding volume reduction promulgated pursuant to subsection two, section (g), Article 3 of the Compact is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than twenty- five hundred dollars for each day of such violation, or imprisoned in the county jail not less than one nor more than five months, or both fined and imprisoned. If the conviction is for a violation committed after a first conviction of such person under this subsection, the person shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than twenty-five thousand dollars for each day of such violation, or shall be imprisoned not less than two nor more than ten years, or both fined and imprisoned.


WVC 29 - 1 H- 9 §29-1H-9. Conflicting laws.
In the event the provisions of the Appalachian States Low- Level Radioactive Waste Compact, this article or any rules and regulations lawfully promulgated thereunder shall be or become inconsistent with any other provisions of this code, the provisions of the Appalachian States Low-Level Radioactive Waste Compact and this article and the rules and regulations lawfully promulgated thereunder shall prevail to the extent of such inconsistency and the conflicting provisions shall be null and void to the extent of such inconsistency.


WVC 29 - 1 H- 10 §29-1H-10. Fiscal implementation.

The term "budgetary processes" in Article 2(C)(2) of the Compact shall be construed to include the presentation by the Commission of its proposed budget for each fiscal period to the budget office of the department of finance and administration for study and consideration, and each such budget shall include a statement of moneys required to administer, manage and support the Commission during the ensuing fiscal period. The statement shall include any request for appropriation of funds by the state of West Virginia and shall be accompanied by a tabulation of similar requests which the Commission makes or expects to make to each other signatory party, and the formula or factors upon which such respective requests are based. The governor is authorized to take such action as may be necessary and proper in his discretion to effectuate the Compact, and the initial organization and operation of the Commission, and the Legislature may appropriate such funds as it considers necessary to carry out the provisions of this article.


WVC 29 - 1 H- 11 §29-1H-11. When article effective.
This article shall take effect and become operative and the Compact be executed for and on behalf of this state only from and after the approval, ratification and adoption, and entering into thereof by the Commonwealth of Pennsylvania.


WVC 29 - 1 I- ARTICLE 1I. VOLUNTARY VETERANS MEMORIAL CHECK-OFF PROGRAM.


WVC 29 - 1 I- 1 §29-1I-1. Legislative intent.
The intent of this legislation is to authorize and provide funding for the design, construction and maintenance of a veterans memorial on the grounds of the state capitol complex in Charleston.

The funding of this memorial shall be derived from a voluntary check-off and contribution designation on state personal income tax return forms of a portion or all of a taxpayer's refund. The funding so provided shall be supplemental to any other revenues obtained for the memorial.


WVC 29 - 1 I- 2 §29-1I-2. Voluntary check-off designation.
The tax commissioner shall cause each West Virginia personal income tax return form to contain a provision whereby the taxpayer (and his spouse if a joint return) may designate a portion or all of his tax refund to the West Virginia voluntary veterans memorial check-off program. The contribution so made shall be credited to said program.


WVC 29 - 1 I- 3 §29-1I-3. Contributions credited to special fund.
The tax department shall determine by the first day of July of each year the total amount designated pursuant to this article and shall report such amount to the state treasurer who shall credit such amount to a special department of culture and history fund.


WVC 29 - 1 I- 4 §29-1I-4. Use of funds.
The funds shall be used for the purpose of designing, constructing and maintaining a veterans memorial on the grounds of the state capitol complex in Charleston under the supervision of the commissioner of culture and history with the advice of the department of veterans' affairs and the governor. The commissioner of culture and history shall on the fifteenth day of January each year furnish the Legislature with a report stating the amount of money that has been provided and how such moneys have been expended.


WVC 29 - 1 I- 5 §29-1I-5. Effective date.
This article shall apply to all personal income tax returns required to be filed on and after the first day of July, one thousand nine hundred eighty-eight, and before the first day of July, one thousand nine hundred ninety-one.


WVC 29 - 1 J- ARTICLE 1J. JENNINGS RANDOLPH LAKE PROJECT COMPACT.


WVC 29 - 1 J- 1 §29-1J-1. Jennings Randolph Lake Project Compact authorized.

The governor is hereby authorized and directed to execute a compact on behalf of the state of West Virginia with the state of Maryland, with participation through concurrence by the United States army corps of engineers legally joining in the form substantially as follows:

JENNINGS RANDOLPH LAKE PROJECT COMPACT
PREAMBLE
Whereas, The signatory parties hereto desire to provide for joint natural resource management and enforcement of laws and regulations pertaining to natural resources and boating at the Jennings Randolph Lake Project lying in Garrett County, Maryland, and Mineral County, West Virginia, for which they have a joint responsibility; and they declare as follows:

a. The Congress, under Public Law 87-874, authorized the development of the Jennings Randolph Lake Project for the North Branch of the Potomac River substantially in accordance with House Document Number 469, 87th Congress, 2nd Session for flood control, water supply, water quality and recreation; and

b. Section 4 of the Flood Control Act of 1944 (CH 665, 58 STAT.534) provides that the chief of engineers, under the supervision of the secretary of war (now secretary of the army), is authorized to construct, maintain and operate public park and recreational facilities in reservoir areas under control of such secretary for the purpose of boating, swimming, bathing, fishing and other recreational purposes, so long as the same is not inconsistent with the laws for the protection of fish and wildlife of the state(s) in which such area is situated; and

c. Pursuant to the authorities cited above, the U.S. army engineer district (Baltimore), hereinafter "District," did construct and now maintains and operates the Jennings Randolph Lake Project; and

d. The National Environmental Policy Act of 1969 (P.L. 91-190) encourages productive and enjoyable harmony between man and his environment, promotes efforts which will stimulate the health and welfare of man, and encourages cooperation with state and local governments to achieve these ends; and

e. The Fish and Wildlife Coordination Act (16 U.S.C. 661-666C) provides for the consideration and coordination with other features of water-resource development programs through the effectual and harmonious planning, development, maintenance and coordination of wildlife conservation and rehabilitation; and

f. The District has fisheries and wildlife plans as part of the District's project operational plan management; and

g. In the respective states, the Maryland department of natural resources (hereinafter referred to as Maryland DNR) and the West Virginia division of natural resources (hereinafter referred to as West Virginia DNR) are primarily responsible for providing a system of control, propagation, management, protection and regulation of natural resources and boating in Maryland and West Virginia and the enforcement of laws and regulations pertaining to those resources as provided in annotated code of Maryland natural resources article and West Virginia chapter 20, respectively, and the successors thereof; and

h. The District, the Maryland department of natural resources and the West Virginia division of natural resources are desirous of conserving, perpetuating and improving fish and wildlife resources and recreational benefits of the Jennings Randolph Lake Project; and

i. The District and the states of Maryland and West Virginia wish to implement the aforesaid acts and responsibilities through this compact and they each recognize that consistent enforcement of the natural resources and boating laws and regulations can best be achieved by entering this compact:

Now, therefore

The states of West Virginia and Maryland, with the concurrence of the United States department of the army, corps of engineers, hereby solemnly covenant and agree with each other, upon enactment of concurrent legislation by the Congress of theUnited States and by the respective state legislatures, to the Jennings Randolph Lake Project Compact, which consists of this preamble and the articles that follow:

ARTICLE I. NAME, FINDINGS AND PURPOSE.
a. This compact shall be known and may be cited as the Jennings Randolph Lake Project Compact.

b. The legislative bodies of the respective signatory parties, with the concurrence of the U.S. army corps of engineers, hereby find and declare:

1. The water resources and project lands of the Jennings Randolph Lake Project are affected with local, state, regional and national interest, and the planning, conservation, utilization, protection and management of these resources, under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatory parties; and

2. The lands and waters of the Jennings Randolph Lake Project are subject to the sovereign rights and responsibilities of the signatory parties, and it is the purpose of this compact that, notwithstanding any boundary between Maryland and West Virginia that preexisted the creation of Jennings Randolph Lake, the parties will have and exercise concurrent jurisdiction over any lands and waters of the Jennings Randolph Lake Project concerning natural resources and boating laws and regulations in the common interest of the people of the region.

ARTICLE II. DISTRICT RESPONSIBILITIES.
The District, within the Jennings Randolph Lake Project,

a. Acknowledges that the West Virginia division of natural resources and the Maryland department of natural resources have authorities and responsibilities in the establishment, administration and enforcement of the natural resources and boating laws and regulations applicable to this project: Provided, That the laws and regulations promulgated by the states support and implement, where applicable, the intent of the rules and regulations governing public use of water resources development projects administered by the chief of engineers in Title 36, Chapter III, Part 327, Code of Federal Regulations,

b. Agrees to practice those forms of resource management as determined jointly by the District, the West Virginia division of natural resources and the Maryland department of natural resources to be beneficial to natural resources and which will enhance public recreational opportunities compatible with other authorized purposes of the project,

c. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources prior to the issuance of any permits for activities or special events which would include, but not necessarily be limited to, fishing tournaments, training exercises, regattas, marine parades, placement of ski ramps, slalom water ski courses and the establishment of private markers or lighting. All such permits issued by the District will require the permittee to comply with all state laws and regulations,

d. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources regarding any recommendations for regulations affecting natural resources including, but not limited to, hunting, trapping, fishing or boating at the Jennings Randolph Lake Project which the District believes might be desirable for reasons of public safety, administration, or public use and enjoyment,

e. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources relative to the marking of the lake with buoys, aids to navigation, regulatory markers and establishing and posting of speed limits, no wake zones, restricted or other control areas and to provide, install and maintain such buoys, aids to navigation and regulatory markers as are necessary for the implementation of the District's operational management plan. All buoys, aids to navigation and regulatory markers to be used shall be marked in conformance with the uniform state waterway marking system,

f. Agrees to allow hunting, trapping, boating and fishing by the public in accordance with the laws and regulations relating to the Jennings Randolph Lake Project.

g. Agrees to provide, install and maintain public ramps, parking areas, courtesy docks, etc., as provided for by the approved Corps of Engineers master plan, and

h. Agrees to notify the West Virginia division of natural resources and the Maryland department of natural resources of each reservoir drawdown prior thereto excepting drawdown for the reestablishment of normal lake levels following flood control operations and drawdown resulting from routine water control management operations described in the reservoir regulation manual including releases requested by water supply owners and normal water quality releases. In case of emergency releases or emergency flow curtailments, telephone or oral notification will be provided. The District reserves the right, following issuance of the above notice, to make operational and other tests which may be necessary to ensure the safe and efficient operation of the dam, for inspection and maintenance purposes, and for the gathering of water quality data both within the impoundment and in the Potomac River downstream from the dam.

ARTICLE III. STATE RESPONSIBILITIES.
The state of West Virginia and the state of Maryland agree:

a. That each state will have and exercise concurrent jurisdiction with the District and the other state for the purpose of enforcing the civil and criminal laws of the respective states pertaining to natural resources and boating laws and regulations over any lands and waters of the Jennings Randolph Lake Project;

b. That existing natural resources and boating laws and regulations already in effect in each state shall remain in force on the Jennings Randolph Lake Project until either state amends, modifies or rescinds its laws and regulations;

c. That the agreement for fishing privileges dated the twenty-fourth day of June, one thousand nine hundred eighty-five, between the state of West Virginia and the state of Maryland, as amended, remains in full force and effect;

d. To enforce the natural resources and boating laws and regulations applicable to the Jennings Randolph Lake Project;

e. To supply to the District with the name, address and telephone number of the persons to be contacted when any drawdown except those resulting from normal regulation procedures occurs;

f. To inform the reservoir manager of all emergencies or unusual activities occurring on the Jennings Randolph Lake Project;

g. To provide training to District employees in order to familiarize them with natural resources and boating laws and regulations as they apply to the Jennings Randolph Lake Project; and

h. To recognize that the District and other federal agencies have the right and responsibility to enforce, within the boundaries of the Jennings Randolph Lake Project, all applicable federal laws, rules and regulations so as to provide the public with safe and healthful recreational opportunities and to provide protection to all federal property within the project.

ARTICLE IV. MUTUAL COOPERATION.
Pursuant to the aims and purposes of this compact, the state of West Virginia, the state of Maryland and the District mutually agree that representatives of their natural resource management and enforcement agencies will cooperate to further the purposes of this compact. This cooperation includes, but is not limited to, the following:

a. Meeting jointly at least once annually, and providing for other meetings as deemed necessary for discussion of matters relating to the management of natural resources and visitor use on lands and waters within the Jennings Randolph Lake Project;

b. Evaluating natural resources and boating, to develop natural resource and boating management plans and to initiate andcarry out management programs;

c. Encouraging the dissemination of joint publications, press releases or other public information and the interchange between parties of all pertinent agency policies and objectives for the use and perpetuation of natural resources of Jennings Randolph Lake Project; and

d. Entering into working arrangements as occasion demands for the use of lands, waters, construction and use of buildings and other facilities at the project.

ARTICLE V. GENERAL PROVISIONS.
a. Each and every provision of this compact is subject to the laws of the states of West Virginia and Maryland and the laws of the United States, and the delegated authority in each instance.

b. The enforcement and applicability of natural resources and boating laws and regulations referenced in this compact shall be limited to the lands and waters of the Jennings Randolph Lake Project, including, but not limited to, the prevailing reciprocal fishing laws and regulations between the states of West Virginia and Maryland.

c. Nothing in this compact shall be construed as obligating any party hereto to the expenditure of funds or the future payment of money in excess of appropriations authorized by law.

d. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of the Jennings Randolph Lake Project Compact is declared to be unconstitutional or inapplicable to any signatory party or agency of any party, the constitutionality and applicability of the compact shall not be otherwise affected as to any other provision, party or agency. It is the legislative intent that the provisions of this compact be reasonably and liberally construed to effectuate the stated purposes of the compact.

e. No member of or delegate to Congress, or signatory shall be admitted to any share or part of this compact, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this agreement if made with a corporation for its general benefit.

f. When this compact has been ratified by the Legislature of each respective state, when the governor of West Virginia and the governor of Maryland have executed this compact on behalf of their respective states and have caused a verified copy thereof to be filed with the secretary of state of each respective state, when the Baltimore district engineer of the U.S. army corps of engineers has executed its concurrence with this compact, and when this compact has been consented to by the Congress of the United States, then this compact shall become operative and effective.

g. Either state may, by legislative act, after one year's written notice to the other, withdraw from this compact, the U.S. army corps of engineers may withdraw its concurrence with this compact upon one year's written notice from the Baltimore district engineer to the governor of each state.

h. This compact may be amended from time to time.

Each proposed amendment shall be presented in resolution form to the governor of each state and the Baltimore district engineer of the U.S. army corps of engineers. An amendment to this compact shall become effective only after it has been ratified by the legislatures of both signatory states and concurred in by the U.S. army corps of engineers, Baltimore district. Amendments shall become effective thirty days after the date of the last concurrence or ratification.


WVC 29 - 1 J- 2 §29-1J-2. Date on which article becomes effective.

This article shall take effect and become operative and the compact be executed for and on behalf of this state only from and after the approval, ratification, and adoption, and entering into thereof by the state of Maryland and with the concurrence of the United States army corps of engineers, Baltimore, Maryland district.


WVC 29 - 2 - ARTICLE 2. GEODETIC AND GEOLOGICAL SURVEY.


WVC 29 - 2 - 1 §29-2-1. Entry on lands for surveying under federal acts.
It shall be lawful for any person or persons employed under and by virtue of an act of the Congress of the United States, passed February the tenth, eighteen hundred and seven, and all acts supplemental thereto, at any time hereafter to enter upon lands within this state for the purpose of exploring, surveying, triangulating or leveling, or doing any other matter or thing which may be necessary to effect the objects of said act; and to erect any works, stations, buildings or appendages requisite for that purpose, doing no unnecessary injury to private or other property.


WVC 29 - 2 - 2 §29-2-2. Condemnation of land for such purposes.
In case the person or persons employed under the act of Congress aforesaid, or acts supplemental thereto, cannot agree with the owners or possessors of the land so entered upon and used as to the amount of damages done thereto by reason of the removal of fences, cutting of trees, or injury to the crop or crops growing on the same, it shall be lawful for such parties, or either of them, to apply, in the name of the United States of America, to the circuit court of the county to have the same condemned, and such application shall be proceeded in, tried and determined, in all respects as provided in chapter fifty-four of this code.


WVC 29 - 2 - 3 §29-2-3. Unlawful interference with signal, monument or building; penalty.
If any person or persons shall wilfully injure, deface or remove any signal, monument, or building, or any appendage thereto, erected, used or constructed under and by virtue of the act of Congress aforesaid, or any act or acts supplemental thereto, such persons so offending shall severally forfeit and pay the sum of fifty dollars with the costs of suit, to be sued for and recovered by any person who shall first prosecute the same before any justice of the peace of the county where the person so offending may reside, and shall also be liable to pay the amount of damages thereby sustained, to be recovered with the cost of the suit in an action on the case, in the name and for the use of the United States of America, in any court of competent jurisdiction.


WVC 29 - 2 - 4 §29-2-4. State geological and economic survey director; qualifications for appointment; administrative powers and duties.
The governor shall appoint as director of the survey a geologist of established reputation. At the time of his or her initial appointment, the director must be at least thirty years of age and must be selected with special reference and consideration given to his or her administrative experience and ability and to his or her demonstrated interest in the effective and responsible management of the state geological and economic survey. The director must have a master's degree in geology or in a related field and at least three years of experience in a position of responsible charge in at least one discipline relating to the duties and responsibilities for which the director will be responsible upon assumption of the office. The director may not be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately forfeit and vacate his or her office as director in the event he or she becomes a candidate for or accepts appointment to any other public office or political party committee.

The director may employ such assistants and employees as he may deem necessary. He shall also determine the compensation of all persons employed by the survey and may remove them at pleasure.

The director may set such reasonable fees as may be necessary to recover additional costs incurred in performing geological and analytical analyses. These fees shall be deposited in the state treasury in a special revenue account to be known as the "Geological and Analytical Services Fund". The director is hereby authorized to expend such funds, as are appropriated by the Legislature, from this fund for the purpose of defraying said costs.


WVC 29 - 2 - 5 §29-2-5. Objects of survey.
The survey shall have for its objects:

(a) An examination of the geological formations of the state, with special reference to their economic products, namely: Building stones and other constructive materials and resources, clays, ores and other mineral substances and fuels, the prevention of their waste, and the utilization of by- products;

(b) An examination of the physical features of the state with reference to their practical bearing upon the occupations of the people, the industrial development and the material prosperity of the several portions of the state, having due regard to their varying resources, conditions and needs;

(c) The preparation of special geological and economic maps to illustrate the resources of the state;

(d) The preparation of special reports, with necessary illustrations and maps, which shall embrace both a general and detailed description of the geology and natural resources of the state;

(e) The consideration of such other scientific and economic questions as in the judgment of the director shall be deemed of value to the people of the state. The director may enter into cooperative agreements, grants and contracts and establish accounts for such purposes.


WVC 29 - 2 - 6 §29-2-6. Reports to Legislature.
The director shall cause to be prepared a report to the Legislature before each meeting of the same, showing the progress and condition of the survey, together with such other information as he may deem necessary and useful or as the Legislature may require.


WVC 29 - 2 - 7 §29-2-7. Distribution of reports.
The regular and special reports of the survey, with proper illustrations and maps, shall be printed as the director may direct, and the reports shall be distributed or sold by the director as the interests of the state, the diffusion of practical information relating to the development of the state, and the advancement of science, may demand. All moneys obtained by the sales of the reports may be used to defray the costs of publication and their distribution to the people, and any balance may be retained for that purpose.


WVC 29 - 2 - 8 §29-2-8. Distribution of surplus materials.
All materials collected, after having served the purpose of the survey, shall be distributed by the director to the educational institutions in such manner as to be of the greatest advantage to the educational interests of the state. If deemed advisable, all or part of such material may be put on permanent exhibition or otherwise disposed of in an appropriate manner.


WVC 29 - 2 - 9 §29-2-9. Right of engineers and surveyors to enter on property.
The engineers, surveyors and other persons employed by and acting for said survey, and all such persons employed by and acting for the United States geological survey, or other department of the United States government, having for their purposes the obtainment and diffusion of practical information relating to the resources and development of the state, the advancement of science, and the carrying out of the objects of the state geological and economic survey, shall have the right to enter upon all lands, either public or private, and into all mines, for the purpose of exploring, surveying, or doing any other thing which may be necessary to effect such objects, and examine any property, products or developments, relating to the objects of said survey, within the state, without molestation or arrest, and without being liable to the owners thereof, except for actual damages done to the property.


WVC 29 - 2 - 10 §29-2-10.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 2 A- ARTICLE 2A. STATE AERONAUTICS COMMISSION.


WVC 29 - 2 A- 1 §29-2A-1. Definitions.
As used in the statutes of West Virginia, unless the context otherwise requires:

(a) "Aeronautics" means the art and science of flight, including, but not limited to, transportation by aircraft; the operation, construction, repair or maintenance of aircraft, aircraft power plants and accessories, including the repair, packing and maintenance of parachutes; and the design, establishment, construction, extension, operation, improvement, repair or maintenance of airports or other air navigation facilities.

(b) "Aircraft" means any contrivance now known, or hereafter invented, used or designed for navigation of or flight in the air.

(c) "Airmen" means any individual who engages, as the person in command, or as pilot, mechanic or member of the crew, in the navigation of the aircraft while under way and any individual who is directly in charge of the inspection, maintenance, overhauling or repair of aircraft engines, propellers or appliances and any individual who serves in the capacity of aircraft dispatcher or air-traffic control-tower operator. It does not include any individual employed outside the United States, or any individual employed by a manufacturer of aircraft, aircraft engines, propellers or appliances to perform duties as inspector or mechanic in connection therewith, or any individual performing inspection or mechanical duties in connection with aircraft owned or operated by him.

(d) "Air navigation" or "navigation" means the operation or navigation of aircraft in the air space over this state, or upon any airport within this state.

(e) "Air navigation facility" means any facility other than one owned or controlled by the federal government used in, available for use in, or designed for use in aid of air navigation, including airports, and any structures, mechanisms, lights, beacons, markers, communications system or other instrumentalities or devices used or useful as an aid or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft or the safe and efficient operation or maintenance of an airport, and any combination of any or all of such facilities.

(f) "Airport" means any area of land or water which is used, or intended for use, for the landing and take off of aircraft and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon.

(g) "Airport hazard" means any structure, object of natural growth or use of land which obstructs the air space required for the flight of aircraft in landing or taking off at any airport or is otherwise hazardous to such landing or taking off.

(h) "Commission" means the West Virginia state aeronautics commission.

(i) "Director" means the director of aeronautics of this state.

(j) "Municipality" means any county, city, town, village or other political subdivision of this state. "Municipal" means pertaining to a municipality as herein defined.

(k) "Operation of aircraft" or "operate aircraft" means the use, navigation or piloting of aircraft in the airspace over this state or upon the ground within this state.

(l) "Person" means any individual, firm, copartnership, corporation, company, association, joint stock association or body politic and includes any trustee, receiver, assignee or other similar representative thereof.

(m) The singular of any of the above defined terms shall include the plural and plural the singular.


WVC 29 - 2 A- 2 §29-2A-2. Creation and membership.
There is hereby created an aeronautics commission, to be known as "The West Virginia State Aeronautics Commission", to consist of five members to be appointed by the governor, by and with the advice and consent of the Senate. One of such members shall be the secretary of transportation ex officio, whose term as such member shall continue for the period that he or she holds the office of secretary of transportation. The other four members of the commission shall be appointed by the governor, each to serve a term beginning the first day of July, one thousand nine hundred forty-seven, one to serve for a term of one year, one to serve for a term of two years, one to serve for a term of three years and one to serve for a term of four years. The successors of the members (other than the secretary of transportation) initially appointed as provided herein shall be appointed for terms of four years each in the same manner as the members originally appointed under this article, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of such term. Each member shall serve until the appointment and qualification of his or her successor. No more than three members of the commission shall be members of the same political party. All members of the commission shall be citizens and residents of this state. The members of the commission who shall be appointed by the governor as provided by this section shall be selected with due regard to their fitness by reason of their aeronautical knowledge and practical experience in the field of aeronautics. In making such appointments, the governor shall, so far as may be possible and practicable, select the several members from different geographical sections of the state.

No member shall receive any salary for his or her services, but each shall be reimbursed for actual and necessary expenses incurred by such member in the performance of his or her duties in accordance with state travel rules.


WVC 29 - 2 A- 3 §29-2A-3. Powers and duties of commission.
The commission shall assume, carry on and succeed to all the duties, rights, powers, obligations and liabilities heretofore belonging to, exercised by, or assumed by the state board of aeronautics, pursuant to statutory authority heretofore existing and as changed or modified by the provisions of this article. It may enter into any contracts necessary to the execution of the powers granted to it by this article. It is empowered and directed to encourage, foster and assist in the development of aeronautics in this state and to encourage the establishment of airports and air navigation facilities. It shall cooperate with and assist the federal government, the municipalities of this state and other persons in the development of aeronautics and shall act to coordinate the aeronautical activities of these bodies and persons. Municipalities are authorized to cooperate with the commission in the development of aeronautics and aeronautics facilities in this state. The commission is hereby given the power and authority to make such rules as it may deem necessary and advisable for the public safety, governing the designing, laying out, locating, building, equipping and operating of all airports and the conduct of all other phases of aeronautics.

The commission shall keep on file with the secretary of state, and at the principal office of the commission, a copy of all its rules and orders having general effect for public inspection. It shall provide for the publication and general distribution of all its orders, rules and procedures having general effect. Copies of any such orders or rules shall be delivered to any person interested, free of charge, upon request. The publication and distribution of any such order or rule as provided herein shall be sufficient notice to the public of the provisions, requirements and effect thereof.

Each rule of the commission shall be promulgated as a legislative rule pursuant to the provisions of chapter twenty-nine-a of this code.

Except where otherwise prohibited, the commission is authorized to permit the state board of investments to invest, as provided by this code, any funds received by the commission pursuant to the provisions of this code.


WVC 29 - 2 A- 3 A §29-2A-3a. Expenses of civil air patrol; commission may expend funds pursuant to rules.
(a) The commission, in addition to all other powers and functions authorized by law, may expend state funds: (1) For educational purposes of the civil air patrol, including, but not limited to, the purchase of civil air patrol aviation education training aid books, materials and equipment; (2) to defray maintenance, repair and replacement costs of civil air patrol aircraft; (3) to purchase and obtain supplies and equipment for the civil air patrol; and (4) to maintain the communications network for the civil air patrol.

(b) No expenditure of state funds for these purposes may be made unless the purchase order is first approved by the commission in accordance with the commission's rules relating to the expenditure. Only funds specifically appropriated by the Legislature for these purposes may be expended by the commission and funds appropriated shall be expended for no other purposes.


WVC 29 - 2 A- 4 §29-2A-4. Organization of commission; meetings; reports; offices.
The commission shall make, and may from time to time amend, rules for the administration of the powers granted to it by this article as are not inconsistent therewith and as the commission may deem expedient. The commission shall organize by electing from among its members a chairman who shall serve as such for a period of two years. Such chairman shall have the power to sign documents, execute contracts and otherwise act for and in the name of the commission in all matters within the lawful powers of the commission and duly authorized by a majority of its members.

The commission shall determine the number, date and place of its regular meetings, but at least one such meeting shall be held annually at the commission's established offices in the city of Charleston. Whenever the convenience of the public or of interested persons may be promoted, or delay or expense may be prevented, the commission may hold meetings, hearings or proceedings at any other place designated by it.

The commission shall report in writing to the governor on or before the thirty-first day of August of each year. The report shall contain a summary of the commission's proceedings during the preceding fiscal year, a detailed and itemized statement of all revenue received and all expenditures made by or on behalf of the commission, such other information as it may deem necessary or useful and any additional information which may be requested by the governor. The fiscal year of the commission shall conform to the fiscal year of the state.

An office shall be established and maintained by the commission in the city of Charleston. In addition, the commission may establish and maintain such other offices within the state as it may deem necessary and expedient.


WVC 29 - 2 A- 5 §29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; administrative and other assistants.
A director of aeronautics shall be appointed by the commission, who shall serve for an indefinite term at the pleasure of the commission. The director shall be appointed with due regard to his or her fitness, by aeronautical education and by knowledge of and recent practical experience in aeronautics, for the efficient dispatch of the powers and duties vested in and imposed upon him by this article. The director shall devote his or her time to the duties of his or her office as required and prescribed by this article and shall not have any pecuniary interest in, or any stock in, or bonds of, any civil aeronautical enterprise. The director shall receive such compensation as the commission may determine, which said compensation shall, however, conform in general to the compensation received by persons occupying positions of similar importance and responsibility with other agencies of this state. The director shall be reimbursed for all traveling and other expenses incurred by him or her in the discharge of his or her official duties in accordance with state travel rules. The director shall be the executive officer of the commission and under its supervision shall administer the provisions of this article and the rules and orders established thereunder and all other laws of the state relative to aeronautics. The director shall attend, but not vote, at all meetings of the commission. The director shall act as secretary of the commission and shall be in charge of its offices and responsible to the commission for the preparation of reports and the collection and dissemination of data and other public information relating to aeronautics. At the direction of the commission the director shall, together with the chairman of the commission, execute all contracts entered into by the commission which are legally authorized and for which funds are provided in any appropriations act. The commission may, by written order filed in its office, delegate to the director any of the powers or duties vested or imposed upon it by this article. Such delegated powers and duties may be exercised by such director in the name of the commission. The commission may also employ such administrative, engineering, technical and clerical assistance as may be required. The director and such other assistants may, under the supervision of the commission, insofar as is reasonably possible, make available the engineering and other technical services of the commission, without charge to any municipality, and with or without charge to any other person desiring them, in connection with the construction, maintenance or operation, or proposed construction, maintenance or operation of any airport.


WVC 29 - 2 A- 6 §29-2A-6. State financial assistance for county, municipal and regional airports.
The commission, out of any appropriation made to it by the Legislature or out of any funds at its disposal, may make funds available by grant or otherwise to counties, municipalities and regional airport authorities, created under the provisions of chapter eight of this code, for the planning, acquisition, construction, improvement, maintenance, or operation of airports owned or operated or to be owned or operated by such counties, municipalities or regional airport authorities. Acceptance of any moneys so made available to any such county, municipality or regional airport authority, shall constitute consent by the recipient that a reasonable use of such airport may be made, upon request of the commission, by the United States government, the state, or any of their respective agencies, including the state aeronautics commission and the national guard of West Virginia for state purposes related or incidental to aeronautics. Such financial assistance may be furnished in connection with federal or other financial aid for the same purpose.


WVC 29 - 2 A- 7 §29-2A-7. Federal aid.
(a) The commission is authorized to cooperate with the government of the United States, and any agency or department thereof, in the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation facilities in this state and is authorized to accept federal aid either outright or by way of matching the same, in whole or in part, as may be required, and when funds for matching are available to the commission, and to comply with the provisions of the laws of the United States and any regulations made thereunder for the expenditure of federal moneys upon such airports and other air navigation facilities.

(b) The commission is authorized to accept, receive and receipt for federal moneys and other moneys, either public or private, for and in behalf of this state, or any municipality thereof, for the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation facilities, whether such work is to be done by the state or by such municipality, or jointly, aided by grants of aid from the United States, upon such terms and conditions as are or may be prescribed by the laws of the United States and any rules or regulations made thereunder, and it is hereby designated as the agency of the state, and is authorized to and may act as agent of any municipality of this state upon the request of such municipality, in accepting, receiving and receipting for such moneys in its behalf for airports or other air navigation facility purposes, and in contracting for the planning, acquisition, construction, improvement, maintenance or operation of airports or other air navigation facilities, financed, either in whole or in part, by federal moneys; and any such municipality is authorized to and may enter into an agreement with the commission prescribing the terms and conditions of such agency in accordance with federal laws, rules and regulations and with this article. Such moneys as are paid over by the United States government shall be retained by the state or paid over to said municipalities under such terms and conditions as may be imposed by the United States government in making such grants.

(c) All contracts for the planning, acquisition, construction, improvement, maintenance and operation of airports, or other air navigation facilities made by the commission, either as the agent of the state or as the agent of any municipality therein, shall be made pursuant to the laws of this state governing the making of like contracts: Provided, That where the planning, acquisition, construction, improvement, maintenance and operation of any airport or other air navigation facility is financed wholly or partially with federal moneys, the commission, as agent of the state or of any municipality thereof, may let contracts in the manner prescribed by the federal authorities, acting under the laws of the United States, and any rules or regulations made thereunder, notwithstanding any other state law to the contrary.

(d) All moneys accepted for disbursement by the commission pursuant to this section shall be deposited in the state treasury, and, unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purposes for which the moneys were made available, and held by the state in trust for such purposes. All such moneys are hereby appropriated for the purposes for which the same were made available and shall be expended in accordance with federal laws and regulations and with the provisions of this article. The commission is authorized, whether acting for this state or as the agent of any municipality therein, when requested by the United States government or any agency or department thereof, or when requested by the state or municipality for which the money has been made available, to disburse such moneys for the designated purposes, but this shall not preclude any other authorized method of disbursement.

(e) The state or any municipality therein is authorized to cooperate with the government of the United States, and any agency or department thereof, in the acquisition, construction, improvement, maintenance and operation of airports and other airnavigation facilities in this state and is authorized to accept federal aid, either by way of outright grant or by matching the same, in whole or in part, as may be required, and to comply with the provisions of the laws of the United States and any regulations made thereunder for the expenditure of federal moneys upon such airports and other navigation facilities.


WVC 29 - 2 A- 8 §29-2A-8. Establishment and operation of state airports.
The commission is authorized on behalf of and in the name of the state, out of appropriations and other moneys made available for such purposes, to plan, establish, construct, maintain, and operate airports and air navigation facilities within the state. For such purposes the commission may, by purchase, gift, devise, lease, condemnation or otherwise, acquire such property, real or personal, as is necessary to permit safe and efficient operation of the airports and air navigation facilities. In like manner, the commission may acquire existing airports and air navigation facilities: Provided, however, That it shall not acquire or take over any airport or air navigation facility owned or controlled by a municipality of this or any other state without the consent of such municipality. The commission may by sale, lease, or otherwise, dispose of any such property, airport, air navigation facility, or portion thereof or interest therein. Such disposal by lease shall be made pursuant to the terms of chapter eight, article eleven, section six of the code of West Virginia. Such disposal by sale or otherwise shall be in accordance with the laws of this state governing the disposition of other property of the state, except that in the case of disposal to any municipality or state government or the United States for aeronautical purposes incident thereto the sale or other disposal may be effected in such manner and upon such terms as the commission may deem in the best interest of the state.

Nothing contained in this article shall be construed to limit any right, power or authority of the state or a municipality to regulate airport hazards by zoning.

The commission may exercise any powers granted by this section jointly with any municipalities or agencies of the state government, with other states or their municipalities, or with the United States.

In the condemnation of property authorized by this section, the commission shall proceed in the name of the state in the manner provided by chapter fifty-four, code of West Virginia, one thousand nine hundred thirty-one.


WVC 29 - 2 A- 9 §29-2A-9. State airways.
The commission may designate, design, and establish, expand, or modify a state airways system which will best serve the interest of the state. It may chart such airways system and arrange for publication and distribution of such maps, charts, notices and bulletins relating to such airways as may be required in the public interest. The system shall be supplementary to and coordinated in design and operation with the federal airways system. It may include all types of air navigation facilities, whether publicly or privately owned, provided that such facilities conform to federal safety standards.


WVC 29 - 2 A- 10 §29-2A-10. Public purpose of activities.
The acquisition of any lands or interests therein pursuant to this article, the planning, acquisition, establishment, construction, improvement, maintenance and operation of airports and air navigation facilities, whether by the state separately or jointly with any municipalities, and the exercise of any other powers herein granted to the commission are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. All lands and other property and privileges acquired and used by or on behalf of the state in the manner and for the purposes enumerated in this article shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.


WVC 29 - 2 A- 11 §29-2A-11. Operation of aircraft while under influence of alcohol, controlled substances or drugs; criminal penalties.
(a) Any person who:

(1) Operates an aircraft in this state while:

(A) He is under the influence of alcohol; or

(B) He is under the influence of any controlled substance; or

(C) He is under the influence of any other drug; or

(D) He is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight; and

(2) When so operating an aircraft does any act forbidden by law or fails to perform any duty imposed by law in the operation of such aircraft, which act or failure proximately causes bodily injury to any person other than himself, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years, or in the discretion of the court, be confined in jail not more than one year and be fined not more than five hundred dollars.

(b) Any person who:

(1) Operates an aircraft in this state while:

(A) He is under the influence of alcohol; or

(B) He is under the influence of any controlled substance; or

(C) He is under the influence of any other drug; or

(D) He is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than five hundred dollars, or both, in the discretion of the court.

(c) Any person who:

(1) Knowingly permits his or her aircraft to be operated in this state by any other person who is:

(A) Under the influence of alcohol; or

(B) Under the influence of any controlled substance; or

(C) Under the influence of any other drug; or

(D) Under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than five hundred dollars, or both, in the discretion of the court.

(d) A person violating any provision of subsection (a) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years.

(e) A person violating any provision of subsection (b) or (c) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than three years.

(f) For purposes of subsections (d) and (e) of this section relating to second and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:

(1) Any conviction under the provisions of the prior enactment of this section;

(2) Any conviction under a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b) or (c) of this section.

(g) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding thefact that there has not been a final adjudication of the charges for the alleged previous offense. In such case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.

(h) The fact that any person charged with a violation of subsection (a) or (b) of this section, or any person permitted to operate an aircraft as described under subsection (c) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b) or (c) of this section.

(i) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.

(j) When any person is convicted of violating any provision of this section, the clerk of the court in which such conviction is had shall, within seventy-two hours after such conviction is had, transmit to the commission a certified abstract of the judgment of conviction. The commission shall, within seventy-two hours after receipt thereof, transmit a true copy thereof to the federal aviation administration.


WVC 29 - 2 A- 11 A §29-2A-11a. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.
Any person who operates an aircraft in this state is considered to have given his or her consent by the operation thereof to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood. A preliminary breath analysis may be administered in accordance with the provisions of section eleven-b of this article whenever a law-enforcement officer has reasonable cause to believe a person to have committed an offense prohibited by section eleven of this article. A secondary test of blood, breath or urine shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense prohibited by said section. The law-enforcement agency by which the law-enforcement officer is employed shall designate which one of the aforesaid secondary tests shall be administered: Provided, That if the test so designated is a blood test and the person so arrested refuses to submit to the blood test, then the law-enforcement officer making the arrest shall designate in lieu thereof either a breath or urine test to be administered.

For the purpose of this article, the term "law-enforcement officer" means and is limited to: (1) Any member of the State Police; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; and (4) any natural resources police officer of the Division of Natural Resources. If any municipality or the Division of Natural Resources does not have available to its law-enforcement officers the testing equipment or facilities necessary to conduct any secondary test which a law-enforcement officer may administer under this article, any member of the West Virginia State Police, the sheriff of the county wherein the arrest is made or any deputy of the sheriff or any municipal law-enforcement officer of another municipality within the county wherein the arrest is made may, upon the request of the arresting law-enforcement officer and in his or her presence, conduct a secondary test and the results of the test may be used in evidence to the same extent and in the same manner as if the test had been conducted by the arresting law-enforcement officer. Only the person actually administering or conducting the test is competent to testify as to the results and the veracity of the test.


WVC 29 - 2 A- 11 B §29-2A-11b. Preliminary analysis of breath to determine alcoholic content of blood.
When a law-enforcement officer has reason to believe a person has committed an offense prohibited by section eleven of this article, the law-enforcement officer may require such person to submit to a preliminary breath analysis for the purpose of determining such person's blood alcohol content. Such breath analysis must be administered as soon as possible after the law-enforcement officer has a reasonable belief that the person has been operating an aircraft while under the influence of alcohol, controlled substances or drugs. Any preliminary breath analysis required under this section must be administered with a device and in a manner approved by the bureau of public health for that purpose. The results of a preliminary breath analysis shall be used solely for the purpose of guiding the officer in deciding whether an arrest should be made. When an operator is arrested following a preliminary breath analysis, the tests as hereinafter provided in this article shall be administered in accordance with the provisions thereof.


WVC 29 - 2 A- 11 C §29-2A-11c. How blood test administered; additional test at option of person tested; use of test results; certain immunity from liability incident to administering test.
Only a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his or her employment, acting at the request and direction of the law-enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof. These limitations shall not apply to the taking of a breath test or a urine specimen. In withdrawing blood for the purpose of determining the alcoholic content thereof, only a previously unused and sterile needle and sterile vessel may be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices. A nonalcoholic antiseptic shall be used for cleansing the skin prior to venepuncture. The person tested may, at his or her own expense, have a doctor of medicine or osteopathy, registered nurse or trained medical technician at the place of his or her employment, of his or her own choosing, administer a chemical test in addition to the test administered at the direction of the law-enforcement officer. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law-enforcement officer shall be made available to him or her. No person who administers any such test upon the request of a law-enforcement officer as herein defined, no hospital in or with which such person is employed or is otherwise associated or in which such test is administered and no other person, firm or corporation by whom or with which such person is employed or is in any way associated, may be in anyway criminally liable for the administration of such test or civilly liable in damages to the person tested unless for gross negligence or willful or wanton injury.


WVC 29 - 2 A- 11 D §29-2A-11d. Interpretation and use of chemical test.
(a) (1) Upon trial for the offense of operating an aircraft in this state while under the influence of alcohol, controlled substances or drugs, or upon the trial of any civil or criminal action arising out of acts alleged to have been committed by any person operating an aircraft while under the influence of alcohol, controlled substances or drugs, evidence of the amount of alcohol in the person's blood at the time of the arrest or of the acts alleged, as shown by a chemical analysis of his or her blood, breath or urine, is admissible, if the sample or specimen was taken within two hours from and after the time of arrest or of the acts alleged, and shall give rise to the following presumption or have the following effect: Evidence that there was, at that time, four hundredths of one percent or more, by weight, of alcohol in his or her blood, shall be prima facie evidence that the person was under the influence of alcohol.

(2) Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred cubic centimeters of blood.

(b) A chemical analysis of a person's blood, breath or urine, in order to give rise to the presumption or to have the effect provided for in subsection (a) of this section, must be performed in accordance with methods and standards approved by the state bureau of public health. A chemical analysis of blood or urine to determine the alcoholic content of blood shall be conducted by a qualified laboratory or by the state police scientific laboratory of the criminal identification bureau of the West Virginia state police.

(c) The provisions of this article shall not limit the introduction in any administrative or judicial proceeding of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, controlled substances or drugs.


WVC 29 - 2 A- 11 E §29-2A-11e. Right to demand test.
Any person lawfully arrested for operating an aircraft in this state while under the influence of alcohol, controlled substances or drugs shall have the right to demand that a sample or specimen of his or her blood, breath or urine be taken within two hours from and after the time of arrest and that a chemical test thereof be made. The analysis disclosed by such chemical test shall be made available to such arrested person forthwith upon demand.


WVC 29 - 2 A- 11 F §29-2A-11f. Fee for withdrawing blood sample and making urine test; payment of fees.

A reasonable fee shall be allowed to the person withdrawing a blood sample or administering a urine test at the request and direction of a law-enforcement officer in accordance with the provisions of this article. If the person whose blood sample was withdrawn or whose urine was tested was arrested and charged with a violation of section eleven of this article, the county having venue of such charge shall pay said fee and if said person is subsequently convicted of such charge, such fee shall be taxed as a part of the costs of the criminal proceeding and shall be paid, notwithstanding any other provision of this code to the contrary, into the general fund of said county.


WVC 29 - 2 A- 12 §29-2A-12. Operation of aircraft at low altitude or in careless and reckless manner; penalty.
No person shall operate an aircraft at an altitude of less than one thousand feet over any city, town, or village, or public gathering elsewhere, except at a duly established airport or when necessary to make a safe and proper landing or take off in an emergency or at a duly established airport.

No person shall operate an aircraft in the air over, or on the ground or water within this state in a careless and reckless manner in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and in a manner so as to endanger or be likely to endanger any person or property.

A person violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars or by confinement in jail for not more than one year, or both.


WVC 29 - 2 A- 13 §29-2A-13. Unauthorized taking or operation of aircraft; penalty.
No person, other than the duly authorized agent, servant or employee of the owner thereof, shall take, without the knowledge and consent of the owner, and operate within this state any aircraft owned by another. Any person who, wilfully and without the knowledge or consent of the owner or person in lawful charge thereof, and with the intent to deprive such owner or person in lawful charge of the possession or use thereof, either temporarily or permanently, shall take possession of, enter and operate, or otherwise take and use, any aircraft belonging to another or in his lawful possession; and any person who shall assist, aid and abet, or be present for the purpose and with the intent to assist, aid or abet, another person in such taking possession of, entering and operating, or otherwise taking and using any such aircraft; and any person who shall receive, buy, conceal, or otherwise dispose of any such aircraft knowing the same to have been stolen or taken without the knowledge or consent of the owner or person in lawful charge thereof, shall be deemed guilty of a felony, and upon conviction thereof, shall be fined not less than two hundred nor more than five thousand dollars and confined in the penitentiary for not less than two nor more than ten years.


WVC 29 - 2 A- 14 §29-2A-14. Federal license required for operation of aircraft.
No person shall operate or cause or authorize to be operated any aircraft within this state unless such aircraft has an appropriate effective certificate, permit or license issued by the United States, if such certificate, permit or license is required by the United States; nor shall any person engage in aeronautics as an airman in this state unless he has an appropriate effective airman certificate, permit, rating or license issued by the United States authorizing him to engage in the particular class of aeronautics in which he is engaged, if such certificate, permit, rating or license is required by the United States.

Where a certificate, permit, rating or license is required for an airman by the United States, it shall be kept in his personal possession when he is operating within this state and shall be presented for inspection upon the demand of any peace officer or any other officer of the state or of a municipality or member, official, or employee of the commission authorized under this article to enforce the aeronautics law of this state, or any official, manager or person in charge of any airport upon which the airman shall land, or upon the reasonable request of any other person. Where a certificate, permit or license is required by the United States for an aircraft, it shall be carried in the aircraft at all times while the aircraft is operating in the state, shall be conspicuously posted in the aircraft where it may readily be seen by passengers or inspectors, and shall be presented for inspection upon the demand of any peace officer, or any other officer of the state or of a municipality or member, official or employee of the commission authorized under this article to enforce the aeronautics laws of this state, or any official, manager or person in charge of any airport upon which the aircraft shall land, or upon the reasonable request of any person.


WVC 29 - 2 A- 15 §29-2A-15.
Repealed.

Acts, 1995 Reg. Sess., Ch. 3.


WVC 29 - 2 A- 16 §29-2A-16.
Repealed.

Acts, 1995 Reg. Sess., Ch. 3.


WVC 29 - 2 A- 17 §29-2A-17. Investigations; hearings; power to subpoena witnesses; self-incrimination.
The commission, any member thereof, the director or any officer or employee of the commission designated by it, shall have the power to hold investigations, inquiries and hearings concerning matters covered by the provisions of this article and the rules, regulations and orders of the commission, and concerning accidents in aeronautics within this state. Hearings shall be open to the public and, except as provided in section twenty-two, shall be held upon such call or notice as the commission shall deem advisable. Each member of the commission, the director and every officer or employee of the commission designated by it to hold any inquiry, investigation or hearing shall have the power to administer oaths and affirmations, certify to all official acts, issue subpoenas, and order the attendance and testimony of witnesses and the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the commission or its authorized representative may invoke the aid of any circuit court of this state. The court shall thereupon order such person to comply with the requirements of the subpoena order or to give evidence touching the matter in question. Failure to obey the order of the court may be punished by the court as a contempt thereof. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse witness from testifying, but such witness shall not be prosecuted for any offense concerning which he is compelled hereunder to testify.

Subject to the foregoing provision, the commission may in its discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigations and hearings.


WVC 29 - 2 A- 18 §29-2A-18. Disposition of fees.
All fees or other moneys collected by said commission under the provisions of this article shall be paid into the state treasury in the manner provided in article two, chapter twelve of the code of West Virginia, and shall be carried in a separate account and be used and expended only for the purpose of carrying out the provisions of this article. The fees or other moneys so paid into the state treasury shall constitute and be treated as an excepted fund, and all of the provisions of section two of said article two, chapter twelve of the said code, applicable to the funds therein excepted from the general provisions for the deposit and payment of state funds, shall be applicable to the fund derived from collections made pursuant to the provisions of this article.


WVC 29 - 2 A- 19 §29-2A-19. Federal-state joint hearings; reciprocal services; accident reporting.
The commission is authorized to confer with or to hold joint hearings with any agency of this state or the United States in connection with any matter arising under this article, or relating to the sound development of aeronautics.

The commission is authorized to avail itself of the cooperation, services, records and facilities of the agencies of the United States as fully as may be practicable in the administration and enforcement of this article. The commission shall furnish to the agencies of the United States its cooperation, services, records and facilities, insofar as may be practicable.

The commission shall report to the appropriate agency of the United States all accidents in aeronautics in this state of which it is informed, and shall insofar as is practicable preserve, protect and prevent the removal of the component parts of any aircraft involved in an accident being investigated by it for such reasonable time as may be necessary to give the federal agency adequate opportunity to institute an investigation.


WVC 29 - 2 A- 20 §29-2A-20. Enforcement of aeronautics laws.
It shall be the duty of the commission, its members, the director, officers and such employees of the commission as may be designated by it, and every state and municipal officer charged with the enforcement of state and municipal laws, to enforce and assist in the enforcement of this article and of all rules and orders issued pursuant thereto and of all other laws of this state relating to aeronautics; and in that connection each of the aforesaid persons is authorized to inspect and examine at reasonable hours any aircraft, the credentials of any airman or other person engaged in aeronautics required by the laws of this state or of the United States to have in his or her possession credentials evidencing his or her authority or permission to engage in aeronautics, any premises and the buildings and other structures thereon, where airports, air navigation facilities or other aeronautical activities are operated or conducted.

The commission is authorized in the name of the state to enforce the provisions of this article and the rules and orders issued pursuant thereto by injunction or other legal process in the courts of this state.


WVC 29 - 2 A- 21 §29-2A-21. Use of state and municipal facilities and services.
In carrying out the provisions of this article the commission may use the facilities and services of other agencies of the state and of the municipalities of the state to the utmost extent possible, and such agencies and municipalities are authorized and directed to make available their facilities and services.


WVC 29 - 2 A- 22 §29-2A-22. Commission orders, notices and opportunity for hearings.
Every order of the commission requiring performance of certain acts or compliance with certain requirements and any denial or revocation of an approval shall set forth the reasons and shall state the acts to be done or requirements to be met before approval by the commission will be given or the approval granted or restored or the order modified or changed. Orders issued by the commission pursuant to the provisions of this article shall be served upon the persons affected either by certified mail or in the manner provided by section one, article two, chapter fifty-six of this code. In every case where notice and opportunity for hearing are required under the provisions of this article, the order of the commission shall, on not less than ten days' notice, specify a time when and place where the person affected may be heard, or the time within which he may request a hearing, and such order shall become effective upon the expiration of the time for exercising such opportunity for hearing unless a hearing is held or requested within the time provided, in which case the order shall be suspended until the commission shall affirm, disaffirm or modify such order after hearing held or default by the person affected.


WVC 29 - 2 A- 23 §29-2A-23. Judicial review of commission's action.
Any person aggrieved by any final order of the commission shall have the right to a judicial review of the action of the commission, upon certiorari by the circuit court of Kanawha county, West Virginia. The granting of such review, upon certiorari, shall be within the sound discretion of the judge of the said circuit court. A petition for such review must be filed with the said court, or with the judge thereof in vacation, within a period of thirty days from the date of entry of the final order complained of. An appeal from any final order entered by the said circuit court upon granting such writ of certiorari may be had by application to the supreme court of appeals of West Virginia for a writ of error and supersedeas. Such application to the supreme court of appeals shall be made within thirty days of the entry of the order appealed from by the said circuit court: Provided, however, That when either the circuit court or the supreme court of appeals has taken jurisdiction of any such case, such court may, in its sound discretion, refuse a stay of execution or supersedeas to the order of the commission or any portion thereof during the time that the case is pending before the said court, if the court is of the opinion that the order of the commission or a part of such order is reasonable and has been issued for the protection of the public safety.


WVC 29 - 2 A- 24 §29-2A-24. Penalties for violation of provisions of article.
Any person violating any of the provisions of this article, for which the penalty is not otherwise provided, or any of the rules, regulations or orders issued pursuant thereto, shall be punishable by a fine of not more than five hundred dollars or by imprisonment for not more than thirty days, or both.

For any violation of sections eleven and twelve of this article, in addition to the penalties provided by the said sections, or as a condition to the suspension of a sentence which may be imposed pursuant thereto, the court in its discretion may prohibit the violator from operating aircraft within the state for such period as it may determine, but not to exceed one year. Violation of the duly imposed prohibition of the court may be treated as a separate offense under this section or as a contempt of court. In no event shall this section be construed as a warrant for the court or any other agency or person to take away, impound, hold or mark any federal airman or aircraft certificate, permit, rating or license.


WVC 29 - 2 A- 25 §29-2A-25. Exchange of information as to violations.
The commission is authorized to report to the appropriate federal agencies and agencies of other states all proceedings instituted charging violations of sections eleven, twelve and fourteen of this article and all penalties, of which it has knowledge, imposed upon airmen or the owners or operators of aircraft for violations of the law of this state relating to aeronautics or for violations of the rules, regulations or orders of the commission. The commission is authorized to receive reports of penalties and other data from agencies of the federal government and other states and, when necessary, to enter into agreements with federal agencies and the agencies of other states governing the delivery, receipt, exchange and use of reports and data. The commission may make the reports and data of the federal agencies, the agencies of other states, and the courts of this state available with or without request therefor, to any and all courts of this state, and to any officer of the state or of a municipality authorized to enforce the aeronautics laws of this state.


WVC 29 - 2 A- 26 §29-2A-26. Severability.
If any provision of this article or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or applications of this article which can be given effect without the invalid provisions or application, and to this end the provisions of this article are declared to be severable.


WVC 29 - 2 A- 27 §29-2A-27. Repeal.
All acts or parts of acts inconsistent with the provisions of this article are hereby repealed.


WVC 29 - 2 A- 28 §29-2A-28. Short title.
This article may be cited as the "State Aeronautics Commission Act."


WVC 29 - 2 B- ARTICLE 2B. WEATHER MODIFICATION.


WVC 29 - 2 B- 1 §§29-2B-1 to 29-2B-15.
Repealed.

Acts, 1995 Reg. Sess., Ch. 3.


WVC 29 - 3 - ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.


WVC 29 - 3 - 1 §29-3-1. Short title.
This article shall be known and may be cited as the "Fire Prevention and Control Act."


WVC 29 - 3 - 2 §29-3-2. Legislative findings and declaration of policy.
The Legislature hereby finds and declares that:

(a) A significant part of the population of this state needs improved fire prevention and control;

(b) The establishment and maintenance of a coordination program for fire prevention and control for the entire state is necessary to promulgate the safety and well-being of the citizens and residents of this state;

(c) Adequate fire prevention and control are not likely to become a reality unless certain administrative functions and procedures are enacted by law; and

(d) Fire prevention and control are a public purpose and a responsibility of government for which public money may be spent.


WVC 29 - 3 - 3 §29-3-3. State fire commission created; composition; qualifications; appointment; terms of office; removal; vacancies; compensation and expenses.

(a) There is hereby created a state fire commission, which shall consist of thirteen members, qualified by experience and training to deal with the matters which are the responsibilities of the commission. The officers of the West Virginia fire chiefs association, the West Virginia firemen's association, the West Virginia professional fire fighters association, the West Virginia professional fire chiefs association, the West Virginia manufacturers association, the professional independent insurance agents of West Virginia, and the West Virginia society of architects shall submit a list of names of persons recommended by each of these associations to the governor for consideration in appointing the state fire commission. The West Virginia professional fire fighters association and the West Virginia professional fire chiefs association shall recommend the names of two persons from full-time paid fire departments. The West Virginia fire chiefs association and the West Virginia firemen's association shall each recommend the names of three persons from volunteer fire departments. The West Virginia manufacturers association shall recommend the names of three persons to represent business and industry. The professional independent insurance agents of West Virginia shall recommend the names of two persons to represent the fire insurance industry. The West Virginia society of architects shall recommend the names of two persons to represent registered architects. Appointments to the commission shall be made by the governor, by and with the advice and consent of the Senate, from the lists of qualified persons recommended by the organizations. Three members shall be appointed to represent full-time paid fire departments, one member shall be appointed to represent the full-time paid fire chiefs, three members shall be appointed to represent volunteer fire departments and two members shall be appointed to represent the volunteer fire chiefs. Two members shall be appointed to represent business and industry and one member shall be appointed to represent the fire insurance industry. One member shall be appointed to represent registered architects. The term of office of the members shall be staggered five-year terms. The terms of members first appointed shall expire as designated by the governor at the time of appointment, two at the end of one year, two at the end of two years, three at the end of three years, two at the end of four years and two at the end of five years. Vacancies shall be filled in the same manner as the original appointment but only for the remainder of a term. Any member is subject to removal by the governor at any time for neglect of his duties or other conduct unbecoming his office. The governor shall make the appointments within ninety days after this section takes effect.

(b) The members of the state fire commission shall serve without compensation but shall be reimbursed for their reasonable and necessary expenses actually incurred in the performance of their duties.


WVC 29 - 3 - 4 §29-3-4. Chairman; vice chairman; meetings; quorum.
(a) The state fire commission shall select a chairman and vice chairman from among its members and shall hold regular meetings at least once every two months and special meetings when called by its chairman. In the absence of the chairman, the vice chairman shall exercise the powers and duties of the chairman.

(b) No business shall be transacted by the state fire commission in the absence of a quorum which shall be six members, one of whom must be the chairman or vice chairman.


WVC 29 - 3 - 5 §29-3-5. Promulgation of rules and State Fire Code.
(a) The State Fire Commission may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the safeguarding of life and property from the hazards of fire and explosion. The rules, amendments or repeals thereof shall be in accordance with standard safe practice as embodied in widely recognized standards of good practice for fire prevention and fire protection and have the force and effect of law in the several counties, municipalities and political subdivisions of the state.

(b) Pursuant to the provisions of chapter twenty-nine-a of this code, the State Fire Commission shall propose and promulgate comprehensive rules for the safeguarding of life and property from the hazards of fire and explosion to be known as the State Fire Code. Rules embodied in the State Fire Code shall be in accordance with standard safe practice as embodied in widely recognized standards of good practice for fire prevention and fire protection and have the force and effect of law in the several counties, municipalities and political subdivisions of the state. Whenever any new or revised code or standard is adopted by the fire codes published by the National Fire Protection Association, the State Fire Commission may propose and promulgate revised rules reflecting such updated codes and standards: Provided, That the rules shall be effective as emergency rules when so promulgated until acted upon by the Legislature: Provided, however, That the State Fire Marshal shall provide compliance alternatives for historic structures as provided for in section five, article one of this chapter, which compliance alternatives shall take into account the historic integrity of the historic structures; and shall coordinate with the Director of the Archives and History Division the application of the rules of that division.

(c) In interpretation and application, the State Fire Code shall be held to be the minimum requirements for the safeguarding of life and property from the hazards of fire and explosion: Provided, That the State Fire Marshal shall provide compliance alternatives for historic structures and sites as provided in section five, article one of this chapter, which compliance alternatives shall take into account the historic integrity of the historic structures and sites. Whenever any other state law, county or municipal ordinance or regulation of any agency thereof is more stringent or imposes a higher standard than is required by the State Fire Code, the provisions of the state law, county or municipal ordinance or regulation of any agency thereof governs, if they are not inconsistent with the laws of West Virginia and are not contrary to recognized standards and good engineering practices: Provided, That, on and after July 1, 2010, if a municipal or county fire ordinance or regulation of any agency thereof is more stringent or imposes a higher standard than is required by the State Fire Code, it must be presented for review and approval and sanctioned for use by the West Virginia State Fire Commission. In any question, the decision of the State Fire Commission determines the relative priority of any such state law, county or municipal ordinance or regulation of any agency thereof and determines compliance with state fire rules by officials of the state, counties, municipalities and political subdivisions of the state.


WVC 29 - 3 - 5 A §29-3-5a. Hazardous substance emergency response training programs.

(a) Within one hundred twenty days of the effective date of this section, the state fire commission shall promulgate rules pursuant to chapter twenty-nine-a of this code establishing criteria for qualified training programs in hazardous substance emergency response activities and procedures for such qualified training programs to be certified by the state fire marshal.

(b) For the purposes of this section, "hazardous substance" means any hazardous substance as defined in chapter eighty-eight, Acts of the Legislature, regular session, one thousand nine hundred eighty-five any "chemical substances and materials" listed in the rules promulgated by the commissioner of labor pursuant to section eighteen, article three, chapter twenty-one of this code, and any "hazardous waste" as defined in section three, article eighteen, chapter twenty-two of this code.


WVC 29 - 3 - 5 B §29-3-5b. Promulgation of rules and statewide building code.

     (a) The State Fire Commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to safeguard life and property and to ensure the quality of construction of all structures erected or renovated throughout this state through the adoption of a State Building Code. The rules shall be in accordance with standard safe practices so embodied in widely recognized standards of good practice for building construction and all aspects related thereto and have force and effect in those counties and municipalities adopting the State Building Code: Provided, That each county or municipality may adopt the code to the extent that it is only prospective and not retroactive in its application.

     (b) The State Fire Commission has authority to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, regarding building construction, renovation and all other aspects as related to the construction and mechanical operations of a structure. The rules shall be known as the State Building Code.

     (c) The State Fire Commission shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to include the following building energy codes in the State Building Code:

     (1) The 2009 edition of the International Energy Conservation Code for residential buildings or other building energy code or codes for residential buildings that meets or exceeds equivalent energy savings; and

     (2) The ANSI/ASHRAE/IESNA Standard 90.1-2007 building energy code for commercial buildings or other building energy code or codes for commercial buildings that meets or exceeds equivalent energy savings.

     (d) (1) The State Fire Commission has authority to propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing state standards and fee schedules for the licensing, registration, certification, regulation and continuing education of persons which will conduct inspections relating to the State Building Code, which include, but are not limited to, building code officials, inspectors, plans examiners and home inspectors.

     (2) The State Fire Commission shall propose rules for legislative approval requiring applicants for home inspector licensing, registration or certification to submit to a state and national criminal history record check as set forth in this section and may deny licensing, registration or certification based upon the results of the criminal history record check.

     (e) The State Fire Commission has authority to establish advisory boards as it deems appropriate to encourage representative participation in subsequent rulemaking from groups or individuals with an interest in any aspect of the State Building Code or related construction or renovation practices.

     (f) For the purpose of this section, the term "building code" is intended to include all aspects of safe building construction and mechanical operations and all safety aspects related thereto. Whenever any other state law, county or municipal ordinance or regulation of any agency thereof is more stringent or imposes a higher standard than is required by the State Building Code, the provisions of the state law, county or municipal ordinance or regulation of any agency thereof governs if they are not inconsistent with the laws of West Virginia and are not contrary to recognized standards and good engineering practices. In any question, the decision of the State Fire Commission determines the relative priority of any such state law, county or municipal ordinance or regulation of any agency thereof and determines compliance with State Building Code by officials of the state, counties, municipalities and political subdivisions of the state.

     (g) Enforcement of the provisions of the State Building Code is the responsibility of the respective local jurisdiction. Also, any county or municipality may enter into an agreement with any other county or municipality to provide inspection and enforcement services: Provided, That any county or municipality may adopt the State Building Code with or without adopting the BOCA National Property Maintenance Code.

     (h) After the State Fire Commission has promulgated rules as provided in this section, each county or municipality intending to adopt the State Building Code shall notify the State Fire Commission of its intent.

     (i) The State Fire Commission may conduct public meetings in each county or municipality adopting the State Building Code to explain the provisions of the rules.

     (j) The provisions of the State Building Code relating to the construction, repair, alteration, restoration and movement of structures are not mandatory for existing buildings and structures identified and classified by the State Register of Historic Places under the provisions of section eight, article one of this chapter or the National Register of Historic Places, pursuant to 16 U. S. C. §470a. Prior to renovations regarding the application of the State Building Code, in relation to historical preservation of structures identified as such, the authority having jurisdiction shall consult with the Division of Culture and History, State Historic Preservation Office. The final decision is vested in the State Fire Commission. Additions constructed on a historic building are not excluded from complying with the State Building Code.
WVC 29 - 3 - 5 C §29-3-5c. Liquified petroleum gas systems.
(a) The State Fire Commission shall, on or before July 1, 2009, propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide:

(1) Standard safe practices for the design, construction, location, installation, maintenance and operation of liquefied petroleum gas systems, as established by the National Fire Protection Association Standard 58; and

(2) Training standards and qualifications for persons who install or maintain liquefied petroleum gas systems as established by the National Propane Gas Association's Certified Employee Training Program.

(b) The State Fire Commission may establish work groups and seek input in the rulemaking process from groups or individuals with an interest in any aspect of the operation or use of liquefied petroleum gas systems.


WVC 29 - 3 - 5 D §29-3-5d. Volunteer firefighters' training.

     (a) On or before July 30, 2012, the State Fire Commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish training requirements for firefighters which:

     (1) Provide for:

     (A) Minimum training levels for rescue and fire fighting;

     (B) Minimum levels of equipment needed to protect life and property within fire service areas;

     (C) Minimum performance standards the departments must meet in response times, communications, levels of water flow and pressure; and

     (D) Other performance measures as considered necessary to meet the overall goals of improved fire prevention and control.

     (2) Allow the training to be offered in segments, blocks or modules: Provided, That no firefighter may engage in fire fighting activities, except in response to wildland fires, until he or she has completed all firefighter one training: Provided, however, That support members may provide ancillary assistance to firefighters as defined by the rule;

     (3) Provide for online training;

     (4) Allow testing to be done in person or online; and

     (5) Establish the testing requirements which include:

     (A) If the individual is required to test in person, then the tests must be given regionally at various times throughout the year; or

     (B) If the individual is authorized to test online, then the requirements for online testing must be established.

     (b) The State Fire Commission may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.

     (c) The training policies in effect as of the effective date of the enactment of this section during the Regular Session of 2012 will remain in effect until superceded by the emergency rule or legislative rule promulgated pursuant to this section.
WVC 29 - 3 - 6 §29-3-6. Public hearings and notice.
(a) Prior to the promulgation of a state fire code as provided in section five of this article, the state fire commission shall hold at least one public hearing on the proposed regulations contained therein, notice of which shall be the same as the notice for a hearing as provided in the administrative procedure act, chapter twenty-nine-a of this code.

(b) After the adoption of a state fire code, prior to the promulgation of any additional regulation, amendment to or repeal of a current regulation, the state fire commission shall hold at least one hearing on each new regulation, each amendment to and each repeal of a current regulation to be separately submitted, notice of which shall be the same as the notice for a hearing as provided in the administrative procedure act, chapter twenty-nine- a of this code.


WVC 29 - 3 - 7 §29-3-7. Commission's powers in conduct of public hearing.
For the purposes of any public hearing under this article, the state fire commission is empowered and authorized to issue subpoenas and subpoenas duces tecum, to take testimony and to administer oaths to any witness in any proceeding or examination instituted before it or conducted by it with reference to any matter within its jurisdiction. In all hearings or proceedings before the state fire commission the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing; and in case of disobedience to a subpoena or other process the state fire commission or any party to the proceedings before the commission may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents. And such court, in case of refusal to obey the subpoena issued to any person subject to the provisions of this chapter, shall issue an order requiring such person to appear before the state fire commission and produce all books and papers, if so ordered, and give evidence touching the matter in question.


WVC 29 - 3 - 8 §29-3-8.

Repealed.

Acts, 1992 Reg. Sess., Ch. 194.


WVC 29 - 3 - 9 §29-3-9. Powers, duties and authority of State Fire Commission and State Fire Marshal.

     (a) The State Fire Commission may employ personnel, fix their compensation and, within funds available to do so, incur expenses as necessary in the performance of the duties of its office.

     (b) The State Fire Commission is responsible for fire programs within this state, including the State Fire Marshal's office, training, uniform standards and certification, finance and planning and fire prevention.

     (c) All state and area training and education in fire service shall be coordinated by the State Fire Commission. The State Fire Marshal shall ensure that these programs are operated throughout the state at a level consistent with needs identified by the commission.

     (d) The State Fire Commission may make recommendations to the State Insurance Commissioner regarding town classifications for fire insurance rates.

     (e) The formation of any new fire department, including volunteer fire departments, requires the concurrence of the State Fire Commission. The State Fire Commission shall develop a method of certification which can be applied to all fire departments and volunteer fire departments.

     (f) The State Fire Commission shall develop a plan for fire prevention and control which shall include, but not be limited to, the following areas: Manpower needs; location of training centers; location of fire prevention and control units; communications; fire fighting facilities; water sources; vehicular needs; public education and information; public participation; standardization in record keeping; evaluation of personnel; reporting of fire hazards; programs on mutual aid; location of public safety agencies; outline of fire prevention programs; and accessibility of fire prevention information.

     (g) The State Fire Commission shall establish fire protection areas and at such times as funds are available shall establish field offices for inspection, planning and certification.

     (h) The State Fire Marshal may accept, on behalf of the State Fire Commission, gifts, grants, court ordered civil forfeiture proceedings and bequests of funds or property from individuals, foundations, corporations, the federal government, governmental agencies and other organizations or institutions. The State Fire Marshal, acting on behalf of the State Fire Commission, may enter into, sign and execute any agreements and do and perform any acts that may be necessary, useful, desirable or convenient to effectuate the purposes of this article. Moneys from gifts, grants, civil forfeiture proceedings and bequests received by the State Fire Marshal shall be deposited into the special account set forth in subsection (c), section twelve-b of this article, and the State Fire Marshal, with the approval of the State Fire Commission, has the authority to make expenditures of, or use of any tangible property, in order to effectuate the purposes of this article.

     (i) The State Fire Commission shall establish standards and procedures by policy to implement the provisions of this section with regard to the following:

     (1) Fire prevention and control;

     (2) Uniform standards of performance, equipment and training;

     (3) Certification;

     (4) Training and education in fire service, subject to the rule-making requirements set forth in section five-d of this article; and

     (5) The creation, operation and responsibilities of fire departments throughout the state.
WVC 29 - 3 - 10 §29-3-10. State fire marshal's office transferred to state fire commission; powers and duties of state insurance commissioner with respect to fire marshal terminated; operation of commission prior to adoption of code.
The state fire marshal and the state fire marshal's office, heretofore existing in this code, are hereby continued in all respects except that all powers and duties exercised by the state insurance commissioner with respect to the state fire marshal and the state fire marshal's office are terminated and all such powers and duties are hereby transferred to and vested in the state fire commission except as provided otherwise in this article. Until the adoption of a state fire code by the state fire commission, the state fire marshal shall operate under the authority of this article and the authority of the rules and regulations heretofore promulgated by the state fire marshal.


WVC 29 - 3 - 11 §29-3-11. Appointment of state fire marshal; term of office; removal; salary; qualifications; responsibilities; employees; equipment.

(a) The state fire commission shall appoint a state fire marshal in accordance with the qualifications approved by the state civil service commission as provided in article six, chapter twenty-nine of this code. He can be removed by the commission at any time for neglect of duty or other conduct unbecoming his office as provided in article six, chapter twenty-nine of this code.

(b) The state fire marshal, within policy established by the state fire commission, shall have all responsibility for the implementation of fire safety programs in this state designated to minimize fire hazards and disaster and loss of life and property from these causes. These responsibilities include, but are not limited to, the establishment and enforcement of fire safety practices throughout the state, preventive inspection and correction activities, coordination of fire safety programs with volunteer and paid fire departments and critical analysis and evaluation of West Virginia's fire loss statistics for determination of problems and solutions.

(c) The state fire marshal may employ such technical, clerical, stenographic and other personnel and fix their compensation and may incur such expenses as may be necessary in the performance of the duties of his office within the appropriation therefor. Employees of the fire marshal's office shall be members of the state civil service system, and all appointments of the office shall be a part of the classified service under the civil service system.

Further, any individual who is employed to conduct criminal investigations or who may become actively involved in matters of a criminal nature shall first be required to pass a civil service examination testing his or her competency and proficiency in the law of arrest, search and seizure and other criminal procedures relating to the powers granted to the state fire marshal pursuant to the provisions of this article.

(d) The state fire marshal and other personnel of the state fire marshal's office shall be provided with appropriate office space, furniture, equipment, supplies, stationery and printing in the same manner as provided for other state agencies.


WVC 29 - 3 - 12 §29-3-12. Powers and duties of State Fire Marshal.
(a) Enforcement of laws. -- The State Fire Marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the State Fire Marshal has the authority to enforce all laws of the state having to do with:

(1) Prevention of fire;

(2) The storage, sale and use of any explosive, combustible or other dangerous article or articles in solid, flammable liquid or gas form;

(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;

(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;

(5) The suppression of arson; and

(6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the State Fire Code.

(b) Assistance upon request. -- Upon request, the State Fire Marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, natural resources police officer or any county or municipal law-enforcement officer, the State Fire Marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the State Fire Marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.

(c) Enforcement of rules. -- The State Fire Marshal shall enforce the rules promulgated by the State Fire Commission as authorized by this article.

(d) Inspections generally. -- The State Fire Marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the State Fire Code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the State Fire Code.

(e) Right of entry. -- The State Fire Marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The State Fire Marshal and any deputy state fire marshal or assistant state fire marshal approved by the State Fire Marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the State Fire Marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.

(f) Investigations. -- The State Fire Marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The State Fire Marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of the investigation, the state Fire Marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the State Fire Marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.

(g) Testimony. -- The State Fire Marshal, in making an inspection or investigation when in his or her judgment the proceedings are necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of the statements or testimony so taken to the prosecuting attorney for the county wherein the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give any statement under this subsection.

(h) Arrests; warrants. -- The State Fire Marshal, any full-time deputy fire marshal or any full-time assistant fire marshal employed by the State Fire Marshal pursuant to section eleven of this article is hereby authorized and empowered and any person deputized pursuant to subsection (j) of this section may be authorized and empowered by the State Fire Marshal:

(1) To arrest any person anywhere within the confines of the State of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.

(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over the violation.

(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over the violation.

(i) Witnesses and oaths. -- The State Fire Marshal is empowered and authorized to issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state Fire Marshal and cause to be produced before him or her such papers as he or she may require in making the examination. The State Fire Marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in any matter or proceeding aforesaid is considered perjury and is punishable as perjury.

(j) Deputizing members of fire departments in this state. -- The State Fire Marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and the investigations as may be directed by the State Fire Marshal, and the carrying out of orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the State Fire Commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief thereof or his or her single designated assistant may be so deputized.

(k) Written report of examinations. -- The State Fire Marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.

(l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds $1,500, to report to the State Fire Marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any information required by the State Insurance Commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the State Fire Marshal shall report in writing to the owner or insurer the result of the examination regarding the property.

(m) Issuance of permits and licenses. -- The State Fire Marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The State Fire Marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the State Fire Marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia State Police and a national criminal history check through the Federal Bureau of Investigation. The results of any criminal records or criminal history check shall be sent to the State Fire Marshal.

(n) Issuance of citations for fire and life safety violations. -- The State Fire Marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are hereby authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the State Fire Marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the State Fire Code and as provided for by the rules promulgated by the State Fire Commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the State Fire Marshal in the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The State Fire Marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the State Fire Marshal, the exercise of authority by the person is inappropriate.

Violations for which citations may be issued include, but are not limited to:

(1) Overcrowding places of public assembly;

(2) Locked or blocked exits in public areas;

(3) Failure to abate a fire hazard;

(4) Blocking of fire lanes or fire department connections; and

(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise firefighting equipment, fire detection equipment and fire alarm systems.

(o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the Law-enforcement Training Subcommittee of the Governor's Committee on Criminal Justice and Highway Safety and the State Fire Commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of the person has been provided, in the case of a paid municipal fire department by the municipality wherein the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the State Fire Marshal.

(p) Penalties for violations. -- Any person who violates any fire and life safety rule of the State Fire Code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in jail not more than ninety days, or both fined and confined.

Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.


WVC 29 - 3 - 12 A §29-3-12a. Responsibilities of insurance companies in fire loss investigation.

(a) The fire marshal, any assistant fire marshal or any investigator under the authority of the fire marshal may request any insurance company investigating a fire loss of real or personal property to release any information in its possession relative to that loss. The company shall release the information and cooperate with any official authorized to request such information pursuant to this section. The information shall include, but is not limited to:

(1) Any policy in force;

(2) Any application for a policy;

(3) Premium payment records;

(4) History of previous claims;

(5) Material relating to the investigation of the loss, including statements of any person, proof of loss and any other relevant evidence.

(b) Any insurance company shall notify the fire marshal, if it has reason to believe, based on its investigation of a fire loss to real or personal property, that the fire was caused by other than accidental means. The company shall furnish the fire marshal with pertinent information acquired during its investigation and cooperate with the courts and administrative agencies of the state, and any official mentioned, or referred to, in subsection (a) of this section.

(c) In the absence of fraud, no insurance company or person who furnishes information on its behalf, shall be liable for any oral or written statement or any other action necessary to supply information required pursuant to this section.

(d) Any information furnished pursuant to this section shall be held in confidence until such time as its release may be required pursuant to a criminal proceeding.

(e) Any official mentioned, or referred to, in subsection (a) of this section may be required to testify as to any information in his possession regarding the fire loss of real or personal property in any civil action in which any person seeks recovery under a policy against an insurance company for the fire loss.


WVC 29 - 3 - 12 B §29-3-12b. Fees.
(a) The state fire marshal may establish fees in accordance with the following:

(1) For blasting. -- Any person storing, selling or using explosives shall first obtain a permit from the state fire marshal. The permit shall be valid for one year. The state fire marshal may charge a fee for the permit.

(2) For inspections of schools or day-care facilities. -- The state fire marshal may charge a fee of up to twenty-five dollars per annual inspection for inspection of schools or day-care facilities: Provided, That only one such fee may be charged per year for any building in which a school and a day-care facility are colocated: Provided, however, That any school or day-care facility may not be charged for an inspection more than one time per twelve-month period.

(3) For inspections of hospitals or nursing homes. -- The state fire marshal may charge an inspection fee of up to one hundred dollars per annual inspection of hospitals or nursing homes: Provided, That any hospital or nursing home may not be charged for an inspection more than one time per twelve-month period.

(4) For inspections of personal care homes or board and care facilities. -- The state fire marshal may charge an inspection fee of up to fifty dollars per annual inspection for inspections of personal care homes or board and care facilities: Provided, That any personal care home or board and care facility may not be charged for an inspection more than one time per twelve-month period.

(5) For inspections of residential occupancies. -- The state fire marshal may charge an inspection fee of up to one hundred dollars for each inspection of a residential occupancy. For purposes of this subdivision, "residential occupancies" are those buildings in which sleeping accommodations are provided for normal residential purposes.

(6) For inspections of mercantile occupancies. -- The state fire marshal may charge an inspection fee of up to one hundred dollars for inspections of mercantile occupancies: Provided, That if the inspection is in response to a complaint made by a member of the public, the state fire marshal shall obtain from the complainant an advance inspection fee of twenty-five dollars. This fee shall be returned to the complainant if, after the state fire marshal has made the inspection, he or she finds that the complaint was accurate and justified, and he or she shall thereafter collect an inspection fee of up to one hundred dollars from the mercantile occupancy. If, after the inspection has been performed, it appears to the state fire marshal that the complaint was not accurate or justified, the state fire marshal shall keep the twenty-five dollar advance inspection fee obtained from the complainant and may not collect any fees from the mercantile occupant. For purposes of this section, "mercantile occupancy" includes stores, markets and other rooms, buildings or structures for the display and sale of merchandise.

(7) For business occupancies. -- The state fire marshal may charge an inspection fee of up to one hundred dollars for inspections of business occupancies: Provided, That the provisions in subdivision (6) of this section shall apply regarding complaints by members of the public. For purposes of this section, "business occupancies" are those buildings used for the transaction of business, other than mercantile occupancies, for the keeping of accounts and records and similar purposes.

(8) For inspections of assembly occupancies. -- The state fire marshal may charge an inspection fee not more than one time per twelve-month period for the inspection of assembly occupancies. The inspection fee shall be assessed as follows: For Class C assembly facilities, an inspection fee not to exceed fifty dollars; for Class B assembly facilities, an inspection fee not to exceed seventy-five dollars; and for Class A facilities, an inspection fee not to exceed one hundred dollars.

For purposes of this subdivision, an "assembly occupancy" includes, but is not limited to, all buildings or portions of buildings used for gathering together fifty or more persons for such purposes as deliberation, worship, entertainment, eating, drinking, amusement or awaiting transportation. For purposes of this section, a "Class C assembly facility" is one that accommodates fifty to three hundred persons; a "Class B facility" is one which accommodates more than three hundred persons but less than one thousand persons; and a "Class A facility" is one which accommodates more than one thousand persons.

(b) The state fire marshal may collect fees for the fire safety review of plans and specifications for new and existing construction. Fees shall be paid by the party or parties receiving the review.

(1) Structural barriers and fire safety plans review. -- The fee is one dollar for each one thousand dollars of construction cost up to the first one million dollars. Thereafter, the fee is forty cents for each one thousand dollars of construction cost.

(2) Sprinkler system review. -- The fee charged for the review of an individual sprinkler system is as follows: Number of heads: One to two hundred -- eighty-five dollars; two hundred one to three hundred -- one hundred dollars; three hundred one to seven hundred fifty -- one hundred twenty dollars; over seven hundred fifty -- one hundred twenty dollars plus ten cents per head over seven hundred fifty.

(3) Fire alarm systems review. -- The fee charged for the review of a fire alarm system is fifty dollars for each ten thousand square feet of space with a fifty dollar minimum charge.

(4) Range hood extinguishment system review. -- The fee is twenty-five dollars per individual system reviewed.

(5) Carpet specifications. -- The fee for carpet review and approval is twenty dollars per installation.

(c) All fees authorized and collected pursuant to this article and article three-b of this chapter shall be paid to the state fire commission and thereafter deposited into the special account in the state treasury known as the "fire marshal fees fund". Expenditures from the fund shall be for the purposes set forth in this article and articles three-b and three-c of this chapter and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code. Any balance remaining in the special account at the end of any fiscal year shall be reappropriated to the next fiscal year.

(d) If the owner or occupant of any occupancy arranges a time and place for an inspection with the state fire marshal and is not ready for the occupancy to be inspected at the appointed time and place, the owner or occupant thereof shall be charged the inspection fee provided in this section unless at least forty-eight hours prior to the scheduled inspection the owner or occupant requests the state fire marshal to reschedule the inspection. In the event a second inspection is required by the state fire marshal as a result of the owner or occupant failing to be ready for the inspection when the state fire marshal arrives, the state fire marshal shall charge the owner or occupant of the occupancy the inspection fees set forth above for each inspection trip required.

(e) The fees provided for in this section shall remain in effect until such time as the Legislature has approved rules promulgated by the state fire marshal, in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing a schedule of fees for services.


WVC 29 - 3 - 13 §29-3-13. Annual reports.
The state fire commission shall transmit annually to the governor by October thirty-first of each year, an annual report of its activities for the preceding fiscal year. The annual reports shall include documents pertaining to the function and operation of the state fire administrator's office and the state fire marshal's office for the preceding fiscal year.


WVC 29 - 3 - 14 §29-3-14. Maintenance of fire hazard; order for repair or demolition; order to contain notice to comply and right to appeal.
(a) No person shall erect, construct, reconstruct, alter, maintain or use any building, structure or equipment or use any land in such a way to endanger life or property from the hazards of fire or explosion, or in violation of any regulation, or any provision or any change thereof promulgated by the state fire commission under the authority of this article.

(b) Whenever the state fire marshal determines that any building or structure has been constructed, altered or repaired in a manner violating any regulation lawfully promulgated by the state fire commission prior to the commencement of such construction, alteration or repairs; or whenever he may determine that any building or structure constitutes a fire hazard by reason of want of repair, age or dilapidated or abandoned condition, or otherwise, and is so situated as to endanger other buildings and property; or whenever he may find in any building or upon any premises any combustible, flammable or explosive substance or material, or other conditions dangerous to the safety of persons occupying the building or premises and adjacent premises or property, he may make reasonable orders in writing, directed to the owner of such building, structure or premises, for the repair or demolition of such building or structure, or the removal of the combustible, flammable or explosive substance or material, as the case may be, and the remedying of any conditions found to be in violation of a regulation promulgated as aforesaid or to be dangerous to the safety of persons or property.

A true copy of every order of the state fire marshal as provided for in this section shall be filed in the county where the premises are totally or partially located, with the county clerk who shall index and record the order in the general lien book. Upon filing, the order constitutes notice of such proceedings to all persons or parties thereafter having dealings involving said property.

A statement of the expenses and administrative charges shall also be filed with the county clerk, recorded and indexed in the general lien book and upon filing, shall become a lien against the property. Thereafter a court supervised sale of the property to enforce the collection of the expenses and administrative charges may be prosecuted at the request of the state fire marshal, state fire commission or the attorney general.

Every order provided for in this section shall contain a notice that compliance therewith shall be required within a period of thirty days from the date of issuance thereof and also that any person desiring to contest the validity of any such order may enter an appeal from such order to the state fire commission and then to the circuit court in the county where the premises are totally or partially located as provided in section eighteen of this article.


WVC 29 - 3 - 15 §29-3-15. Service of repair or demolition order.
The written order of the state fire marshal made pursuant to section fourteen of this article shall be served by delivering a true copy thereof to such owner, or, if the owner is absent from the state or his whereabouts be unknown to the state fire marshal, by mailing a true copy thereof by certified mail to the said owner's last known post-office address, or if no such address be known, then by certified mail to said owner in care of general delivery at the post office serving the community in which said premises lie; the delivering or mailing of such order to be accomplished within five days from the date of the issuance of such order. And in the event it is necessary to mail a copy of such order as aforesaid, the officer mailing the same shall also, within five days from the date of issuance of such order, post a true copy thereof in a conspicuous place on the door or other prominent entrance to said premises.


WVC 29 - 3 - 16 §29-3-16. Work to be done at expense of owner or occupant upon failure to comply with repair or demolition order; action to recover.
In the event any owner of any building or premises served with a copy of an order as provided in sections fourteen and fifteen of this article shall fail substantially to comply with such order within thirty days from the date of issuance thereof, or within thirty days after any appeal from such order has been affirmed by the state fire commission or by the court, the state fire marshal may enter into and upon the premises affected by such order and cause the building, structure or premises to be repaired, torn down, materials removed and all dangerous conditions to be remedied, as the case may be, at the expense of the owner and with any administrative charges as established by the commission also being borne by the owner, and if such person shall fail or neglect to repay the state fire marshal the expense and administrative charge thereby incurred by him, within thirty days after written demand shall have been delivered or mailed to the said owner as provided in section fifteen of this article, the state fire marshal is hereby authorized to bring an action in the name of the state to recover such expenses, with interest, and any administrative charge as established by the commission, in any court of competent jurisdiction.

Upon a determination by the state fire marshal that the provisions of sections fourteen and fifteen of this article havenot been met, and that such property constitutes a hazard to health or public safety, in lieu of initiating an order as therein provided, the state fire marshal may notify the county commission or the county health officer in order that they may perform their duties pursuant to section three-ff, article one, chapter seven of this code. The fire marshal may also, in lieu thereof, notify the municipality where the property is located so that the municipality may perform its duties pursuant to section fourteen, article twelve, chapter eight of this code.


WVC 29 - 3 - 16 A §29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

          (a) An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one and two family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the current edition of the National Fire Protection Association Standard 72, "Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment" and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.

          (b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by the owner thereof, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.

          (c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing-impaired individual of the danger of fire.

          (d) An automatic fire sprinkler system installed in accordance with the current edition of the National Fire Protection Association Standard 13D, "Standard for the Installation of Sprinkler Systems in Residential Occupancies" may be provided in lieu of smoke detectors.

          (e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.

          (f) An operational single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector, which shall be alternating current (AC) powered, either plugged directly in to an electrical outlet that is not controlled by a switch or hardwired into an alternating current (AC) electrical source, with battery back up, and be installed, maintained, tested, repaired or replaced, if necessary, in accordance with the manufacturer's direction:

          (1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove;

          (2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or barn, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove;

          (3) Effective September 1, 2012, in either a common area where the general public has access or all rooms in which a person will be sleeping that are adjoining to and being directly below and above all areas or rooms that contain permanently installed fuel- burning appliances and equipment that emit carbon monoxide as a byproduct of combustion located within all apartment buildings, boarding houses, dormitories, long-term care facilities, adult or child care facilities, assisted living facilities, one- and two- family dwellings intended to be rented or leased, hotels and motels.

          (g) Effective January 1, 2013, all single station carbon monoxide detectors with a suitable alarm or a combination smoke detector and carbon monoxide detectors shall be hardwired into an alternating current (AC) electrical source, with battery backup, when installed in all newly constructed apartment buildings, boarding houses, dormitories, hospitals, long-term care facilities, adult or child care facilities, assisted living facilities, one- and two-family dwellings intended to be rented or leased, hotels and motels.

          (h) In any long-term care facility that is staffed on a twenty-four hour, seven day a week basis, the single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector shall only be required to be installed in an area of the facility that permits the detector to be audible to the staff on duty.

          (i) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.

          (j) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.

          (k) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be fined $250. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined $750. For a third and subsequent offenses, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined $2000.

          (l) A violation of this section may not be considered by virtue of the violation to constitute evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.

          (m) A violation of this section may not constitute a defense in any civil action or proceeding involving any insurance policy.

          (n) Nothing in this section shall be construed to limit the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.
WVC 29 - 3 - 16 B §29-3-16b. Use of live trees in public buildings; exceptions.

Notwithstanding any other provision of law to the contrary, live trees may be displayed in public buildings if the trees are not decorated with electrical lights or are decorated with U.L. approved miniature lights. The provisions of this section do not apply to public buildings used for education, health care, nursing homes or correctional facilities.


WVC 29 - 3 - 16 C §29-3-16c. Safety standards for bed and breakfast establishments; findings.
(a) Findings. -- Bed and breakfast establishments provide a unique and important contribution to the state, allowing visitors the opportunity to enjoy many of the aspects of our communities and state not available at hotels and motels and often provide vacationers access to overnight accommodation in areas of this state that would not otherwise be available. These operations continue to grow in number and importance in our state's economy and must be promoted and encouraged by state and local government. Most of these facilities are older residences being converted to this use, and in many cases have architectural and historical significance, and, as with most small businesses, are begun with limited capital available for investment. Any fire safety code standards applicable to these facilities must be sensitive to this distinction and avoid placing a large financial burden on persons operating or planning to operate these facilities. Further, the personal safety of those who live in and visit these facilities is of paramount importance and requires that consideration be made to assure that adequate safety requirements are placed on these facilities to provide for the safety of visitors, residents and, in an emergency, responding firefighters and rescue workers.

(b) Definition. -- For the purposes of this section, the term "bed and breakfast establishment" means a building occupied as a one-family dwelling unit that provides sleeping accommodations and breakfast to transient guests for a single fee and does not offer more than six guest rooms to no more than twelve guests.

(c) Fire code standards. -- Notwithstanding any provision of this code to the contrary, every bed and breakfast establishment shall be exempt from provisions of fire safety code requirements which are contrary to the following standards:

(1) Each bed and breakfast shall have operational smoke alarms in all common areas, guest rooms and hallways and heat detectors as otherwise required by this code or rule of the Fire Commission. Battery-powered smoke alarms shall be permitted where the establishment has demonstrated that the testing, maintenance and battery replacement procedures will ensure reliable power to the smoke alarms. Notwithstanding any provision of this code to the contrary, no smoking will be allowed inside a bed and breakfast establishment.

(2) Each bed and breakfast shall have operational hard-wired, battery-powered or plug-in emergency lighting that indicate available means of egress. Battery-powered or plug-in emergency lighting devices shall be permitted where the establishment has demonstrated that the testing, maintenance and battery replacement procedures will ensure reliable power to the emergency lighting devices.

(3) Each guest floor shall have a primary and a secondary means of egress. A door leading directly from a guestroom outside the building with access to grade, or a stairway which is covered or enclosed, or a covered balcony or deck with a stairway to grade are acceptable secondary means of egress. A bed and breakfast with third-floor guest rooms must have an accessible second stairway leading from the third floor to grade. Any bed and breakfast establishment with a sprinkler system which otherwise meets the requirements of this section and the state fire safety and building codes is exempt from the requirement of a secondary means of egress. A bed and breakfast establishment which offers three or fewer guest rooms on the first or second floor only, and accommodates no more than six guest occupants at one time, is exempted from the secondary means of egress requirement;

(4) The state Fire Commission shall permit bed and breakfast establishments that cannot readily comply with the requirements of a legislative rule, which may mandate the installation of a secondary means of escape or a sprinkler system, one year per floor of the establishment to comply with the requirements.

(5) All other provisions of the state fire safety code not inconsistent with this section and rules promulgated pursuant to subsection (d) of this section are applicable to bed and breakfast establishments.

(d) Legislative rules. -- The state Fire Commission shall promulgate or amend an existing legislative rule, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to effectuate the provisions of this section. The rule shall include a mechanism for the Fire Commission to grant individual variances to bed and breakfast establishments which cannot otherwise meet provisions of the state fire safety code due to the historic and architectural significance of the establishment with due consideration of the economic limitations inherent in the operation of this type of small business.

(e) Historic preservation review. -- The owner of a bed and breakfast may request the historical preservation section of the Division of Culture and History, pursuant to section eight, article one of this chapter, to consult with the owner and provide a recommendation to the Fire Commission regarding the historic character of the structures used or proposed to be used as a bed and breakfast and any objections or concerns regarding any renovations or other changes required by the Fire Commission or Fire Marshal. If an appeal regarding a decision made by the Fire Marshal is made to the Commission as provided by section eighteen of this article, the Commission shall consider the recommendation of the historical preservation section when making a determination regarding the variance as provided for in subsection (d) of this section.


WVC 29 - 3 - 16 D §29-3-16d. Performance of installation of propane gas systems.
(a) Notwithstanding any statutory or regulatory provisions to the contrary, any person who installs, fuels, maintains or services any fuel gas system to a one or two family dwelling shall comply with this article and the rules promulgated under this article relating to fuel gas systems.

(b) This section does not apply to any person who performs this work on a single family dwelling owned or leased, and occupied by that person. The personal exemption provided in this subsection is the same as the personal exemption provided in the Supervision of Fire Protection Work Act, §29-3D-1, et seq.


WVC 29 - 3 - 17 §29-3-17. Additional remedies to abate, etc., fire hazards.
In case any building, structure or equipment is or is proposed to be erected, constructed, reconstructed, altered, maintained or used, or any land is or is proposed to be used in such a way to endanger life or property from the hazards of fire or explosion or in violation of this article or of any regulation or provision of any regulation, or change thereof promulgated by the state fire commission under the authority granted by this article, the state fire commission, the state fire marshal or the attorney general may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or actions, proceedings to prevent, enjoin, abate or remove such unlawful erection, construction, reconstruction, alteration, maintenance or use.


WVC 29 - 3 - 18 §29-3-18. Appellate procedure generally.
(a) Appeals to the state fire commission may be taken by any person aggrieved by an order or decision of the state fire marshal based upon or made in the course of the administration or enforcement of the provisions of this article. Appeals to the state fire commission may be taken by any officer, department, board or agency of the state and political subdivisions thereof adversely affected by an order or decision of the state fire marshal in the course of the administration or enforcement of the provisions of this article.

(b) The time within which such appeal must be made, and the effect, form or other procedure relating thereto, including the appointment and function of a hearing examiner, shall be as specified in regulations promulgated by the state fire commission in accordance with provisions of the administrative procedure act, chapter twenty-nine-a of this code.

(c) Any party aggrieved by a final decision of the state fire commission is entitled to judicial review as provided in the administrative procedure act, chapter twenty-nine-a of this code. The state fire marshal is hereby determined to be a party aggrieved as to any decision of the state fire commission reversing or altering the prior order of the state fire marshal and the state fire marshal shall be a necessary party to any judicial review involving a state fire marshal order.


WVC 29 - 3 - 19 §29-3-19. Establishment of demonstration buildings and equipment for educational instruction in fire prevention and protection; payment therefor.
The state fire marshal is authorized to establish for educational purposes in public and private schools and state educational institutions demonstration buildings and equipment for fire prevention and protection, and such expenditures therefor shall be made from the funds appropriated therefor to the office of the state fire marshal.


WVC 29 - 3 - 20 §29-3-20.
Repealed.

Acts, 2001 Reg. Sess., Ch. 131.
WVC 29 - 3 - 21 §29-3-21. False alarm of fire; penalties.
No person shall make, turn in or telephone, or by use of any means or methods of communication aid or abet in the making or turning in of, any alarm of fire which he knows to be false at the time of making or turning in the alarm.


WVC 29 - 3 - 22 §29-3-22. Tax on insurance companies.
Every insurance company doing business in this state, except farmers' mutual fire insurance companies, shall pay to the state insurance commissioner annually on or before the first day of March, in addition to the taxes now required by law to be paid by the companies, one half of one percent of the taxable premiums of the companies on insurance against the hazard of fire and on that portion of all other taxable premiums reasonably applicable to insurance against the hazard of fire which are included in other coverages, and received by it for insurance on property or risks in this state during the calendar year next preceding as shown by their annual statement under oath to the insurance department. The money so received by the state insurance commissioner is paid by him or her into the treasury and credited to the special revenue fund created in section twelve-b of this article.


WVC 29 - 3 - 23 §29-3-23. "Fireworks" defined; labels required.
The term "fireworks" means and includes any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation and shall include blank cartridges, toy pistols, toy cannons, toy canes or toy guns in which explosives are used, the type of unmanned balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, roman candles, daygo bombs or other fireworks of like construction and any fireworks containing any explosive or flammable compound or any tablets or other device containing any explosive substance, except that the term "fireworks" shall not include:

Model rockets and model rocket engines, designed, sold and used for the purpose of propelling recoverable acro models and shall not include toy pistols, toy canes, toy guns or other devices in which paper or plastic caps manufactured in accordance with the United States department of transportation regulations for packing and shipping of toy paper or plastic caps are used and toy paper or plastic caps manufactured as provided therein, the sale and use of which shall be permitted at all times. Each package containing toy paper or plastic caps offered for retail sale shall be labeled to indicate the maximum explosive content per cap.

The following sparklers and novelties shall not be considered fireworks and require a business registration fee be paid to be authorized to sell, as provided for in section eighty-six, article twelve, chapter eleven of this code:

(1) Explosive caps designed to be fired in toy pistols, provided that the explosive mixture of the caps shall not exceed twenty-five hundredths of a grain for each cap.

(2) Snake and glow worms composed of pressed pellets of a pyrotechnic mixture that produce a large snake-like ash when burning.

(3) Smoke devices consisting of a tube or sphere containing a pyrotechnic mixture that produces white or colored smoke.

(4) Trick noisemakers which produce a small report designed to surprise the user and which include:

(a) A party popper, which is a small plastic or paper item containing not in excess of twenty-five hundredths of a grain of explosive mixture. A string protruding from the device is pulled to activate the device, expelling paper streamers and producing a small report.

(b) A string popper which is a small tube containing not in excess of twenty-five hundredths of a grain of explosive mixture with string protruding from both ends. The strings are pulled to activate the friction-sensitive mixture, producing a small report.

(c) A snapper or drop pop, which is a small paper wrapped item containing no more than twenty-five hundredths of a grain of explosive mixture coated on small bits of sand. When dropped, the device produces a small report.

(5) Wire sparklers consisting of wire or stick coated with nonexplosive pyrotechnic mixture that produces a shower of sparks upon ignition. These items must not exceed one hundred grams of mixture per item.

(6) Other sparkling devices which emit showers of sparks and sometimes a whistling or crackling effect when burning, do not detonate or explode, are hand-held or ground-based, cannot propel themselves through the air and contain not more than seventy-five grams of chemical compound per tube or not more than a total of two hundred grams if multiple tubes are used: Provided, That sparklers and sparkler devices as provided for herein shall not be sold to anyone below the age of sixteen years old.


WVC 29 - 3 - 24 §29-3-24. Unlawful sale, possession or use of fireworks; permit for public display.

Except as hereinafter provided, no person, firm, co-partnership or corporation shall offer for sale, possess, expose for sale, sell at retail, keep with intent to sell at retail, or use or explode any fireworks: Provided, That the state fire marshal may adopt reasonable rules and regulations for the granting of permits for the supervised displays of fireworks by municipalities, fair associations, amusement parks, and other organizations or groups of individuals. The state fire marshal shall have the authority to charge a fee of ten dollars to each applicant requesting a license to be a pyrotechnic operator as set forth in this article. The state fire marshal shall charge a scaled fee for all applications requesting permits to establish a pyrotechnics display as provided in this section. All fees required to be paid by the provisions of this section shall be paid to the state fire marshal and thereafter deposited by him into a special account for the operation of the state fire commission. Such permits may be granted upon application to said state fire marshal and after approval of the local police and fire authorities of the community wherein the display is proposed to be held as provided herein and the filing of a bond by the applicant as provided hereinafter. Every such display shall be handled by a competent operator licensed or certified as to competency by the state fire marshal and shall be of such composition, character, and so located, discharged or fired as in the opinion of the chief of the fire department, after proper inspection, and of the chief of police as to not be hazardous to property or endanger any person or persons. After such privilege shall have been granted, the sale, possession, use and distribution of fireworks for such display shall be lawful for that purpose only. No permit granted hereunder shall be transferable.

The governing body or chief executive authority of the municipality shall require a bond from the licensee in a sum not less than one thousand dollars conditioned on compliance with the provisions of this article and the regulations of the state fire commission: Provided, That no municipality shall be required to file such bond.

Before any permit for a pyrotechnic display shall be issued, the person, firm or corporation making application therefor shall furnish proof of financial responsibility to satisfy claims for damages to property or personal injuries arising out of any act or omission on the part of such person, firm or corporation or any agent or employee thereof, in such amount, character and form as the state fire marshal determines to be necessary for the protection of the public.


WVC 29 - 3 - 25 §29-3-25. Interstate sale and shipment; permitted uses.
No permit shall be issued under the provisions of this article to a nonresident person, firm or corporation for conduct of a pyrotechnic display in this state until such person, firm or corporation shall have appointed in writing a member of the bar of this state and residing therein to be his attorney upon whom all process in any action or proceeding against him may be served.

Nothing in this article shall be construed to prohibit any resident wholesaler, dealer or jobber to sell at wholesale such fireworks as are not herein prohibited or the sale of any kind of fireworks provided the same are to be shipped directly out of state in accordance with regulations of the United States department of transportation covering the transportation of explosives and other dangerous articles by motor, rail and water, or the use of fireworks by railroads or other transportation agencies for signal purposes or illumination, or the sale or use of blank cartridges for a show or theater, or for signal or ceremonial purposes in athletics or sports, or for use by military organizations, or the use of fireworks for agricultural purposes under conditions approved by the local authority.


WVC 29 - 3 - 26 §29-3-26. Seizures by fire marshal; enforcement of law.
The state fire marshal shall seize, take, remove and destroy, or cause to be seized, taken or removed and destroyed, at the expense of the owner, all stocks of fireworks or combustibles offered or exposed for sale, stored or held in violation of this article. It shall be the duty of the department of public safety, sheriffs, municipal policemen and other law-enforcement officers to assist in the enforcement of this article.


WVC 29 - 3 - 27 §29-3-27. Penalties.
(a) Any person who violates any regulations promulgated by the state fire commission as provided in section five of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars or confined in the county or regional jail not more than ninety days, or both.

Each day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that it is illegal is a separate offense.

(b) Except as provided by the provisions of subsection (c) of this section, any person who violates the provisions of section twenty-one of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not more than one hundred dollars or confined in the county or regional jail for not more than thirty days or both fined and confined and for a second and each subsequent offense fined not less than one hundred dollars nor more than five hundred dollars or confined in the county or regional jail for not less than ninety days nor more than one year, or both.

(c) Any person who violates the provisions of section twenty-one of this article with the intent to cause injury to the person of another, to cause destruction of the property of another or to divert the attention of law enforcement or fire personnel to help effectuate the commission of another crime shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than three years, or fined not more than five thousand dollars, or both.

(d) Any officer who fails to perform any duty required of him or her by this article or who violates any of its provisions is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than fifty dollars for each failure or violation.

(e) Any person who violates any other provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars or confined in the county or regional jail not more than ninety days, or both.


WVC 29 - 3 - 28 §29-3-28. Transfer of certain state employees; perpetuation of rules, regulations and orders.
(a) All employees, agents or officers of any state agency, department or commission, the functions of which are transferred to the state fire commission by the provisions of this article, and whose employment is covered and protected by the provisions of article six, chapter twenty-nine of this code and the rules and regulations promulgated by the civil service commission, and whose service is classified by such provisions, rules and regulations, shall continue in their employment in all respects and in the same classification, coverage and protection upon the transfer of such functions from the agency, department or commission by which they were employed to the state fire commission.

(b) All rules and regulations promulgated and all orders in effect and all proceedings pending on the effective date of this chapter, which were promulgated or effected or brought under any authority transferred to the state fire commission herein created and, as herein provided, shall remain in full effect unless otherwise provided in this article or until amended, revoked, suspended, modified, repealed or superseded, as the case may be.


WVC 29 - 3 - 29 §29-3-29. Construction.
Being in the interest of public safety, the provisions of this article shall be liberally construed.


WVC 29 - 3 - 30 §29-3-30. Severability.
If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such invalidation 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.


WVC 29 - 3 - 31 §29-3-31.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 3 - 32 §29-3-32. Awarding service weapon upon retirement of fire marshal or service weapon.
(a) Upon the retirement of a state fire marshal, any full-time deputy fire marshal or any full-time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article, the State Fire Commission shall award to the retiring member his or her service weapon, without charge, upon determining:

(1) That the retiring member is retiring honorably with at least twenty years of service; or

(2) The retiring member is retiring with less than twenty years of service based upon a determination that the member is totally physically disabled as a result of his or her service with the state fire marshal.

(b) Notwithstanding the provisions of subsection (a) of this section, the State Fire Commission may not award a service weapon to any member whom the State Fire Commissioner finds to be mentally incapacitated or who constitutes a danger to any person or the community.

(c) If a service weapon is taken out of service due to routine wear, the fire marshal may offer the service weapon for sale to any active or retired state fire marshal, assistant state fire marshal or deputy state fire marshal, at fair market value, with the proceeds from any sales used to offset the cost of new service weapons. The disposal of service weapons pursuant to this subsection does not fall within the jurisdiction of the Purchasing Division of the Department of Administration.


WVC 29 - 3 A- ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.


WVC 29 - 3 A- 1 §29-3A-1. Authority of fire officers in charge of fire, service call or other emergency; definition.
(a) While any fire department recognized or approved by the West Virginia State Fire Commission is responding to, operating at or returning from a fire, fire hazard, service call or other emergency, the fire chief, any other elected or appointed fire line officer or any member serving in the capacity of appointed fire line officer in charge, except on industrial property where trained industrial fire-fighting personnel are present, shall have the authority:

(1) To control and direct firefighting and fire control activities at such scene;

(2) To order any person or persons to leave any building or place in the vicinity of such scene for the purpose of protecting such persons from injury;

(3) To blockade any public highway, street or private right-of-way temporarily while at such scene in accordance with the following provisions:

(A) If the emergency incident occurs on a public highway and it is reasonably expected that the highway may be closed for a period of at least two hours or upon the request of the incident commander acting in accordance with the provisions of the National Incident Management System in effect as of December 31, 2008, the Secretary of Transportation or his or her designee(s) shall be notified of the incident as soon as possible;

(B) The Secretary of Transportation or his or her designee(s) shall respond to the notification of the incident in order to assist with the restoration of traffic flow or with the development and implementation of a traffic diversion plan;

(C) All authorized persons who respond to the scene of the emergency incident and all of their available resources will become part of the incident command system;

(D) All of those persons are to collaborate and cooperate with the incident commander and appropriate law-enforcement personnel at the emergency incident scene in order to restore traffic flow as soon as possible after the scene is deemed safe by the incident commander; and

(E) Once the incident commander has declared the emergency incident scene to be safe, the control of the traffic at the emergency incident scene will be transferred to the Department of Transportation or the appropriate law-enforcement agency;

(4) To enter the building, structure, enclosure or other property of any person or persons at any time of the day or night, without liability, while operating at such scene;

(5) To enter any building, including private dwellings, or upon any premises where an emergency exists, or where there is reasonable cause to believe an emergency exists, for the purpose of eliminating the emergency;

(6) To enter any building, including private dwellings, or premises near the scene of the emergency for the purpose of protecting the building or premises or for the purpose of eliminating the emergency which is in progress in another building or premises;

(7) To inspect for preplanning all buildings, structures or other places in their fire district, excepting, however, the interior of a private dwelling, with the consent of the owner or occupant, where any combustible materials, including waste paper, rags, shavings, waste, leather, rubber, crates, boxes, barrels, rubbish or other combustible material that is or may become dangerous as a fire menace to such building or buildings, structure or other places has been allowed to accumulate or where such chief or his or her designated representative has reason to believe that such material of a combustible nature has accumulated or is liable to be accumulated;

(8) To direct the removal, use or destruction of any fence, house, motor vehicle or other thing which may reasonably be determined to be necessary to be pulled down, destroyed or removed to prevent the further spread of the fire or hazardous condition;

(9) To request and be supplied with additional materials such as sand, treatments, chemicals, etc., and special equipment when dealing with an accident on a public highway or railroad right-of-way when it is deemed a necessity to prevent the further spread of the fire or hazardous condition, the cost of which to be borne by the owner of the instrumentality which caused the fire or hazardous condition; and

(10) To order disengagement or discouplement of any convoy, caravan or train of vehicles, craft or railway cars if deemed a necessity in the interest of safety of persons or property.

(b) As used in this article, the term "emergency" means a situation in which the fire officer in charge knows or in which a reasonable person would believe that there exists an imminent threat of serious bodily harm or death to a person or significant damage to property.


WVC 29 - 3 A- 2 §29-3A-2. Person in command at fire scene may take and preserve certain property; restitution.
The chief of any fire department or company or any other elected or appointed fire line officer, the fire chief or any member serving in the capacity of appointed fire line officer in charge of fire fighters at the scene of any fire is authorized and empowered to take and preserve any property which indicates that the fire was intentionally set. Any person whose property is so held may petition the circuit court of the county within which the property was taken for return of the property, and the court may order restitution upon such conditions as are appropriate for the preservation of evidence, including requiring the posting of bond.


WVC 29 - 3 A- 3 §29-3A-3. Conducting investigation to determine cause of fire.
To determine the cause of any fire, the chief of any fire department or company or other authorized fire fighter may enter the scene of such fire within a forty-eight hour period after such fire has been extinguished.

If there is evidence that a fire was of incendiary origin, the fire chief or other authorized fire fighter may control who may enter the scene of such fire by posting no trespassing signs at such scene for a period of forty-eight hours after such fire has been extinguished.

During the period that the scene of a fire is posted against trespassing, no person shall enter such scene, except that an owner, lessee or any other person having personal property at such scene may enter at any time after such scene has been declared safe by authorized fire department or company officials to recover or salvage personal property if said owner, lessee or person is accompanied by or is granted permission to enter such scene by an authorized fire department or company official.


WVC 29 - 3 A- 4 §29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.
(a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:

(1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or

(2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not more than five hundred dollars, or both.

(c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars.

(d) Nothing in this article shall be construed to prevent law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.

(e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not more than one hundred dollars; (2) for a second offense occurring within one year of a previous conviction shall be fined not more than two hundred dollars; and (3) for a third and subsequent offense shall be fined not more than five hundred dollars.


WVC 29 - 3 B- ARTICLE 3B. SUPERVISION OF ELECTRICIANS.


WVC 29 - 3 B- 1 §29-3B-1. Declaration of purpose.

This article is enacted to protect the health, safety and welfare of the public as well as public and private property by assuring the competence of those who perform electrical work through licensure by the state fire marshal of the state fire commission.


WVC 29 - 3 B- 2 §29-3B-2. Necessity of license; definitions.
After the effective date of this article, no electrical work may be performed, offered or engaged in for compensation or hire within the state of West Virginia by any person, firm or corporation unless such person, firm or corporation possesses a license and a certificate issued by the state fire marshal in accordance with this article, and a copy of the license is posted on any job in which electrical work is being performed for hire.

As used in this article:

(a) "Apprentice electrician" means a person with interest in and an aptitude for performing electrical work but who alone is not capable of performing electrical work unless directly supervised by a higher license classification.

(b) "Electrical contractor" means a person, firm or corporation who engages in the business of electrical work and employs master electricians, journeyman electricians, apprentice electricians or other related workers for the construction, alteration or repair of any electrical wiring, equipment or systems as defined in the scope of the national electric code.

(c) "Electrical work" means the installation of wires, conduits, apparatus, fixtures, other appliances, equipment or systems for transmitting, carrying, controlling or using electricity as defined in the scope of the national electric code.

(d) "Journeyman electrician" means a person qualified by at least four years of electrical work experience to do any work installing wires, conduits, apparatus, equipment, fixtures and other appliances, provided that this classification is not authorized to design electrical systems.

(e) "License" means a valid and current certificate of competency issued by the state fire marshal.

(f) "Master electrician" means a person with at least five years of electrical work experience, including experience in all phases of electrical wiring and installation, who is competent to design electrical systems, and to instruct and supervise the electrical work of journeyman electricians, apprentice electricians, and other related workers.

(g) "Specialty electrician" means a person qualified to perform electrical work in a limited or specialized area.


WVC 29 - 3 B- 3 §29-3B-3. Exemptions; nonapplicability of license requirements; legislative rules for limited reciprocity.
(a) This article does not apply to and no license may be required for: (1) A person who performs electrical work with respect to any property owned or leased by that person; (2) a person who performs electrical work at any manufacturing plant or other industrial establishment as an employee of the person, firm or corporation operating the plant or establishment; (3) a person who performs electrical work while employed by an employer who engages in the business of selling appliances at retail, so long as such electrical work is performed incident to the installation or repair of appliances sold by the employer; (4) a person who, while employed by a public utility or its affiliate, performs electrical work in connection with the furnishing of public utility service; or (5) any government employee performing electrical work on government property.

(b)(1) Notwithstanding any other provision of this article to the contrary, a journeyman or master electrician license may be issued for a person who is a former resident of this state, who formerly held an electrician's license issued by this state, who has obtained an equivalent electrician license from another state, and who returns to this state as a permanent resident, without requiring the person to meet the application or examination requirements that would otherwise be imposed on the person by the requirements of this article when the issuance of the license is permitted by legislative rules promulgated pursuant to the provisions of this subsection.

(2) The state fire marshal shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for the licensing of electricians with equivalent qualifications described in subdivision (1) of this subsection. Notwithstanding any other provision of this code to the contrary, the legislative rules described in this subsection may not be filed as emergency rules.


WVC 29 - 3 B- 4 §29-3B-4. Licenses; classes of licenses; issuance of licenses by commissioner; qualifications required for license; nontransferability and nonassignability of licenses; expiration of license; renewal; reciprocity.
(a) The following classes of license may be issued by the state fire marshal: "Master electrician license," "journeyman electrician license," "apprentice electrician license" and "temporary electrician license." Additional classes of specialty electrician license may be issued by the state fire marshal.

(b) The state fire marshal shall issue the appropriate class of license upon a finding that the applicant possesses the qualifications for the class of license to be issued.

(c) The state fire marshal shall propose rules for legislative approval regarding qualifications for testing, issuance of licenses, and renewal in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(d) To the extent that other jurisdictions provide for the licensing of electricians, the state fire marshal may grant the same or equivalent classification of license without written examination upon satisfactory proof furnished to the state fire marshal that the qualifications of the applicant are equal to the qualifications required by this article and upon payment of the required fee: Provided, That as a condition to reciprocity, the other jurisdictions must extend to licensed electricians of this state, the same or equivalent classification.

(e) In addition to any other information required, the applicant's social security number shall be recorded on any application for a license submitted pursuant to the provisions of this section.


WVC 29 - 3 B- 5 §29-3B-5. Rules; applications and examinations; fees.
(a) The state fire marshal shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article. Rules adopted by the state fire marshal and presently in effect will remain in effect until and unless the state fire marshal adopts new rules, and the state fire marshal may adopt any or all of the rules presently in effect.

(b) The state fire marshal shall prepare and arrange for the receipt of applications from those who intend to perform electrical work in the state of West Virginia. Such application shall be sufficiently detailed to enable the state fire marshal to determine the presence or absence of an applicant's qualifications for a license of a particular class. The state fire marshal may require applicants to supply affidavits or other documents attesting to the applicant's qualifications from past employers, other electricians, engineers and others with knowledge of the applicant's qualifications. The state fire marshal may make such other inquiries as he or she considers necessary to determine the qualifications of the applicant. An applicant expressly consents to such inquiries by the state fire marshal by his or her application.


WVC 29 - 3 B- 6 §29-3B-6.
Repealed.

Acts, 2001 Reg. Sess., Ch. 223.
WVC 29 - 3 B- 7 §29-3B-7. Denial of license; suspension and revocation of license.
(a) The state fire marshal may deny a license to any applicant who fails to comply with the rules established by the state fire marshal, or who lacks the necessary qualifications.

(b) The state fire marshal may upon complaint or upon his or her own inquiry and, after notice to the licensee, suspend or revoke a licensee's license if:

(1) The license was granted upon an application or documents supporting such application which materially misstated the terms of the applicant's qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatement by an applicant;

(3) The licensee incompetently or unsafely performs electrical work;

(4) The licensee violated any statute of the state of West Virginia, any rule lawfully promulgated by an agency of the state of West Virginia or any ordinance of any municipality or county of the state of West Virginia which protects the consumer or public against unfair, unsafe, unlawful or improper business practices; or

(5) The licensee fails to comply with any rule of the state fire marshal promulgated to fulfill his responsibilities under this article.

(c) Any person aggrieved by an order or decision of the state fire marshal under this article is entitled to judicial review as provided by section eighteen, article three of this chapter and by chapter twenty-nine-a of this code.


WVC 29 - 3 B- 8 §29-3B-8. Effect of noncompliance with article; failure to obtain license.
Any person, firm, corporation or employee thereof, or any representative, member or officer of such firm or corporation, individually, entering upon or engaging in the business of performing any electrical work as defined in this article, without obtaining the required license or otherwise complying with this article, is for the first offense guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars, nor more than five hundred dollars. For a second and each subsequent offense, the penalty and punishment is a fine of not less than five hundred dollars nor more than one thousand dollars.

Each day during which such electrical work is performed without the required license or while in noncompliance with any of the provisions of this article, after official notice that such work is unlawful, is a separate offense.

Any electrical work performed by a person, firm or corporation which is determined by the state fire marshal to constitute a safety or health hazard to members of the public or any electrical work of an extensive nature being performed by any person without the required license or otherwise in noncompliance with the requirements of this article or contrary to an order or rule promulgated lawfully by the state fire marshal, is subject to being issued a citation or a civil action in the name of the state in the circuit court of the county where such work is being performed for an injunction against such person, firm or corporation, enjoining such work or violation. A circuit court by mandatory or prohibitory injunction may compel compliance with the provisions of this article, with the lawful orders of the state fire marshal and with any final decision of the state fire marshal or state fire commission. The state fire marshal shall be represented in all such proceedings by the attorney general or his assistants.


WVC 29 - 3 B- 9 §29-3B-9. Nonapplicability of local ordinances; exclusive license.

After the effective date of this article no municipality, local government or county may require any license or other evidence of competence as an electrician from any person, firm or corporation who or which holds a valid and current license issued pursuant to this article, as a condition precedent to permission for the performance of electrical work in such municipality, local government jurisdiction or county.


WVC 29 - 3 B- 10 §29-3B-10. Disposition of fees, fines and other receipts.
All fees shall be paid to the state fire marshal. All fines shall be paid into the general revenue of the state. Such receipts shall be deposited by him in a special account with the state treasurer for the use of the state fire marshal as provided in subsection(c), section twelve-b, article three of this chapter.


WVC 29 - 3 C- ARTICLE 3C. CERTIFICATION OF ELECTRICAL INSPECTORS.


WVC 29 - 3 C- 1 §29-3C-1. Purpose.
This article is intended to protect the health, safety and welfare of the public and to protect public and private property by assuring the competence of persons who perform electrical inspections of dwellings and other structures through certification by the state fire marshal.


WVC 29 - 3 C- 2 §29-3C-2. Definitions.
(a) As used in this article, the terms:

(1) "Certified electrical inspector" means a person who is certified by the state fire marshal as qualified to perform electrical inspections. "Electrical inspector" does not include an inspector employed by the office of miners' health, safety and training pursuant to the provisions of section eleven, article one, chapter twenty-two-a of this code.

(2) "Electrical inspection" means any inspection required by this code and any inspection of a building to which electrical service is connected, wherein the inspector certifies that the electrical system in the building is in compliance with the national electrical code, state fire code and the state building code.


WVC 29 - 3 C- 3 §29-3C-3. Certification of electrical inspectors required.
After the first day of January, two thousand three, no electrical inspections may be performed, offered or engaged in for compensation or hire within the state of West Virginia by any person who is not certified pursuant to this article: Provided, That any person who is employed by this state or any subdivision of this state and who in the normal course of his or her business conducts electrical inspections may perform electrical inspections as within the scope of his or her employment without certification pursuant to this article.


WVC 29 - 3 C- 4 §29-3C-4. Certification program; duties of the state fire marshal; rulemaking.
(a) The state fire marshal shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish a program for the certification of electrical inspectors. Proposed rules shall provide: Standards and procedures for certification, including applications, examinations, fees, qualifications, procedures for investigating complaints, revoking or suspending certifications and for renewing licenses. The state fire marshal is also authorized to propose emergency rules to implement the provisions of this article: Provided, That the emergency rules specify an initial certification fee of fifty dollars.

(b) The state fire marshal shall certify an electrical inspector upon a finding that the applicant possesses the requisite qualifications.


WVC 29 - 3 C- 5 §29-3C-5. Denial of license; suspension and revocation of license.
The state fire marshal shall deny certification to any applicant who:

(1) Fails to establish that he or she holds any other required qualifications for certification established pursuant to rules promulgated pursuant to section four of this article; or

(2) Is not a licensed master electrician in accordance with rules promulgated pursuant to section four of this article.


WVC 29 - 3 C- 6 §29-3C-6. Suspension or revocation of certification.
The state fire marshal may, upon complaint, upon a request or referral, or upon his or her own inquiry suspend or revoke the certification of any person upon a finding that:

(1) The certification was granted upon an application, or upon documents supporting the application, that materially misstated the applicant's qualifications or experience;

(2) The certified electrical inspector knowingly subscribed to or vouched for a misstatement by an applicant for certification;

(3) The certified electrical inspector incompetently performed an electrical inspection;

(4) The certified electrical inspector failed to comply with a provision of this article, or any rule promulgated pursuant to section four of this article; or

(5) The certified electrical inspector failed to comply with the reporting requirements of section eight of this article.


WVC 29 - 3 C- 7 §29-3C-7. Prohibited acts.
A certified electrical inspector may not:

(1) Approve nor disapprove work of which he or she does not have personal knowledge;

(2) Misrepresent his or her authority or responsibility; (3) Use his or her certification as an electrical inspector to secure special favors or treatment;

(4) Inspect any electrical installation for which he or she has performed any part of the work; or

(5) Perform an electrical inspection of any work furnished by a private contractor that employs him or her on a full-time, part-time or incidental basis: Provided, That an employee of a contractor performing electrical installation may inspect electrical work performed by other employees of the same employer, as long as the inspection is not intended to be relied on by any person other than the employer, and the electrical inspector does not certify to an electric utility or to any person that the work is in compliance with applicable building codes, electrical codes or other standards.


WVC 29 - 3 C- 8 §29-3C-8. Required reporting of violations.
Any certified electrical inspector having knowledge of violations of this code or rules promulgated pursuant to this code by the fire marshal or the fire commission shall submit the information, together with available evidence, to the state fire marshal.


WVC 29 - 3 C- 9 §29-3C-9. Noncompliance with article; failure to obtain certification; penalty.
(a) Any person performing electrical inspections without being certified pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred fifty nor more than five hundred dollars, or confined in the county or regional jail for not more than ninety days, or both; and upon conviction of a second or subsequent offense, shall be fined not less than five hundred dollars nor more than one thousand dollars, or confined in the county or regional jail for not more than ninety days, or both.

(b) Any person who conducts an electrical inspection without the required certification is subject to being issued a citation or a civil action in the name of the state in the circuit court of the county where the inspection was or is being performed for an injunction. A circuit court by mandatory or prohibitory injunction may compel compliance with the provisions of this article, with the lawful orders of the state fire marshal and with any final decision of the state fire marshal or state fire commission. The state fire marshal shall be represented in all proceedings instituted pursuant to this subsection by the attorney general or his or her assistants.


WVC 29 - 3 C- 10 §29-3C-10. Disposition of fees and other receipts.
All fees or moneys received as a result of actions under this article shall be deposited in the special account created pursuant to section twelve-b, article three of this chapter. Expenditures from the fund shall be for the purposes set forth in this article and article three of this chapter.


WVC 29 - 3 D- ARTICLE 3D. SUPERVISION OF FIRE PROTECTION WORK.


WVC 29 - 3 D- 1 §29-3D-1. Declaration of purpose.
The provisions of this article are intended to protect the health, safety and welfare of the public as well as public and private property by assuring the competence of those who perform fire protection work through licensure by the State Fire Marshal.


WVC 29 - 3 D- 2 §29-3D-2. Definitions.
As used in this article:

(a) "Fire protection layout technician" is an individual who has achieved National Institute for Certification in Engineering Technologies (NICET) Level III or higher certification, and who has the knowledge, experience and skills necessary to layout fire protection systems based on engineering design documents.

(b) "Fire protection system" means any fire protection suppression device or system designed, installed and maintained in accordance with the applicable National Fire Protection Association (NFPA) codes and standards, but does not include public or private mobile fire vehicles.

(c) "Fire protection work" means the installation, alteration, extension, maintenance, or testing of all piping, materials and equipment inside a building, including the use of shop drawings prepared by a fire protection layout technician, in connection with the discharge of water, other special fluids, chemicals or gases and backflow preventers for fire protection for the express purpose of extinguishing or controlling fire.

(d) "Journeyman sprinkler fitter" means a person qualified by at least ten thousand hours of work experience installing, adjusting, repairing and dismantling fire protection systems and who is competent to instruct and supervise the fire protection work of a sprinkler fitter in training.

(e) "License" means a valid and current license issued by the State Fire Marshal in accordance with the provisions of this article.

(f) "Sprinkler fitter in training" means a person with interest in and an aptitude for performing fire protection work but who alone is not capable of performing such work, and who has fewer than ten thousand hours of experience installing, adjusting, repairing and dismantling fire protection systems.


WVC 29 - 3 D- 3 §29-3D-3. License required; exemptions.
(a) On and after the first day of January, two thousand nine, a person performing or offering to perform fire protection work in this state shall have a license issued by the State Fire Marshal, in accordance with the provisions of this article.

(b) A person licensed under this article must carry a copy of the license on any job in which fire protection work is being performed.

(c) This article does not apply to:

(1) A person who personally performs fire protection work on a single family dwelling owned or leased, and occupied by that person;

(2) A person who performs fire protection work at any manufacturing plant or other industrial establishment as an employee of the person, firm or corporation operating the plant or establishment;

(3) A person who, while employed by a public utility or its affiliate, performs fire protection work in connection with the furnishing of public utility service.

(4) A person who performs fire protection work while engaging in the business of installing, altering or repairing water distribution or drainage lines outside the foundation walls of a building, public or private sewage treatment or water treatment systems including all associated structures or buildings, sewers or underground utility services;

(5) A person who performs fire protection work while engaged in the installation, extension, dismantling, adjustment, repair or alteration of a heating ventilation and air conditioning (HVAC) system, air-veyor system, air exhaust system or air handling system; or

(6) A person who performs fire protection work at a coal mine that is being actively mined or where coal is being processed.


WVC 29 - 3 D- 4 §29-3D-4. Rule-making authority.
The State Fire Marshal shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the implementation and enforcement of the provisions of this article, which shall provide:

(1) Standards and procedures for issuing and renewing licenses, including classifications of licenses as defined in this article, applications, examinations and qualifications;

(2) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform work at the level of the classifications defined in this article and who apply for licensure on or before the first day of July, two thousand nine: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(3) Reciprocity provisions;

(4) Procedures for investigating complaints and revoking or suspending licenses, including appeal procedures;

(5) Fees for testing, issuance and renewal of licenses, and other costs necessary to administer the provisions of this article;

(6) Enforcement procedures; and

(7) Any other rules necessary to effectuate the purposes of this article.


WVC 29 - 3 D- 5 §29-3D-5. Enforcement.
The State Fire Marshal and his or her deputy fire marshal, assistant fire marshal or assistant fire marshal-in-training, is authorized to enforce the provisions of this article, and may, at reasonable hours, enter any building or premises where fire protection work is performed and issue citations for noncompliance.


WVC 29 - 3 D- 6 §29-3D-6. Denial, suspension and revocation of license.
(a) The State Fire Marshal may deny a license to any applicant who fails to comply with the rules established by the State Fire Marshal, or who lacks the necessary qualifications.

(b) The State Fire Marshal may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend or revoke a licensee?s license if:

(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant?s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure;

(3) The licensee incompetently or unsafely performs plumbing or fire protection work; or

(4) The licensee violated any statute of this state, any legislative rule or any ordinance of any municipality or county of this state which protects the consumer or public against unfair, unsafe, unlawful or improper business practices.


WVC 29 - 3 D- 7 §29-3D-7. Penalties.
(a) On and after the first day of January, two thousand nine, a person performing or offering to perform fire protection work without a license issued by the State Fire Marshal, is subject to a citation.

(b) Any person continuing to engage in fire protection work after the issuance of a citation is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:

(1) For the first offense, a fine of not less than two hundred dollars nor more than one thousand dollars;

(2) For the second offense, a fine of not less than five hundred dollars nor more than two thousand dollars, or confinement in jail for not more than six months, or both;

(3) For the third and subsequent offenses, a fine of not less than one thousand dollars nor more than five thousand dollars, and confinement in jail for not less than thirty days nor more than one year.

(c) A separate offense means each day, after official notice is given, that a person performs fire protection work that is unlawful or is not in compliance with the provisions of this article.

(d) The State Fire Marshal may institute proceedings in the circuit court of the county where the alleged violation of the provisions of this article occurred or are now occurring to enjoin any violation of any provision of this article. A circuit court by injunction may compel compliance with the provisions of this article, with the lawful orders of the State Fire Marshal and with any final decision of the State Fire Marshal. The State Fire Marshal shall be represented in all such proceedings by the Attorney General or his or her assistants.

(e) Any person adversely affected by an action of the State Fire Marshal may appeal the action pursuant to the provisions of chapter twenty-nine-a of this code.


WVC 29 - 3 D- 8 §29-3D-8. Inapplicability of local ordinances.
On and after the first day of January, two thousand nine, a political subdivision of this state may not require, as a condition precedent to the performance of fire protection work in the political subdivision, a person who holds a valid and current license issued under the provisions of this article, to have any other license or other evidence of competence as a fire protection worker.


WVC 29 - 3 D- 9 §29-3D-9. Disposition of fees.
All fees paid pursuant to the provisions of this article, shall be paid to the State Fire Marshal and deposited in a special revenue account with the State Treasurer for the use of the State Fire Marshal as provided in subsection (c), section twelve-b, article three of this chapter.


WVC 29 - 4 - ARTICLE 4. NOTARIES PUBLIC AND COMMISSIONERS.


WVC 29 - 4 - 1 §29-4-1.
Repealed.

Acts, 1996 Reg. Sess., Ch. 89.


WVC 29 - 4 - 2 §29-4-2.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 2 A §29-4-2a.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 2 B §29-4-2b.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 3 §29-4-3. Power as to oaths, affidavits and depositions.

When any oath may lawfully be administered, or affidavit or deposition taken, within any county, it may be done by a notary thereof, unless otherwise expressly provided by law.


WVC 29 - 4 - 4 §29-4-4. Power to take acknowledgments and as conservator of peace.

A notary, under the regulations prescribed by law, may take, within his county, and the county or counties to which his commission has been extended, acknowledgments of deeds and other writings. He shall be a conservator of the peace within the county of his residence, and as such conservator shall exercise all the powers conferred by law upon justices of the peace.


WVC 29 - 4 - 5 §29-4-5. Necessity for seal.

The certificate of a notary of this state, in cases specified in the two preceding sections, may be under his signature, without his notarial seal being affixed thereto: Provided, That a notary public who affixes his seal to any instrument or other writings shall affix his seal for the county in which the acknowledgment is taken and the certificate is made.


WVC 29 - 4 - 6 §29-4-6. Powers as to protests and other matters.

Notaries shall have authority to demand acceptance of foreign and inland bills of exchange, including checks, and to demand payment thereof, and of negotiable promissory notes, and protest the same for nonacceptance or nonpayment, as the case may require; and perform such other duties as by the law of nations or commercial usage may be performed by notaries public.


WVC 29 - 4 - 7 §29-4-7. Powers of notaries connected with banks or other corporations.

It shall be lawful for any notary who is a stockholder, director, officer or employee of a banking institution, including national banking associations, or other corporation, to take the acknowledgment of any party to any written instrument executed to or by such corporation, or to administer an oath to any other stockholder, director, officer, employee or agent of such corporation, or to protest, for nonacceptance or nonpayment, bills of exchange, drafts, checks, notes and other negotiable instruments which may be owned or held for collection by such corporation: Provided, That it shall be unlawful for any notary public to take the acknowledgment of an instrument by or to a banking institution, including national banking associations, or other corporation, of which he is a stockholder, director, officer, or employee, when such notary is a party to such instrument, either personally or as a representative of such corporation; or to protest any negotiable instrument owned or held for collection by such corporation, when such notary is personally a party to such instrument.


WVC 29 - 4 - 8 §29-4-8. Signature of notary to state date of expiration of commission.

The official signature of any notary shall state the date of expiration of his commission, but a misstatement of such date shall not invalidate any official act of such notary, if his commission be at the time thereof in force.


WVC 29 - 4 - 9 §29-4-9.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 10 §29-4-10.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 11 §29-4-11.

Repealed.

Acts, 1984 Reg. Sess., Ch. 136.


WVC 29 - 4 - 12 §29-4-12. Commissioners out of state; qualifications; fee.
The governor, if he or she considers it proper, may appoint any persons residing within or without this state and within the United States, its territories or possessions as commissioners to acknowledge signatures performed in or out of state by persons residing in or out of the state of West Virginia covering deeds, leases and other writings pertaining to West Virginia property for recordation in the state of West Virginia. The commissioners shall hold office for ten years, unless sooner removed by the governor. Before performing any duties as a commissioner, the commissioner shall enter into a bond in the penalty sum of one thousand dollars with corporate surety to be approved by the secretary of state and filed in his or her office. A fee of one hundred dollars for each commission issued shall be paid to the secretary of state. All fees and moneys collected by the secretary of state pursuant to the provisions of this article shall be deposited by the secretary of state as follows: One-half shall be deposited in the state general revenue fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the secretary of state. The secretary of state shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.


WVC 29 - 4 - 13 §29-4-13. Power of commissioner appointed under §29-4-12 as to oaths, affidavits and depositions.

When any oath may lawfully be administered, or affidavit or deposition taken, within the state, territory or district for which any such commissioner is appointed, to be used in this state, it may be done by such commissioner.


WVC 29 - 4 - 14 §29-4-14. Power of such commissioner to take acknowledgments.

Such commissioners, under regulations prescribed by law, may take, within or any place out of the state of West Virginia, the acknowledgments of deeds and other writings to be admitted to record in the state of West Virginia, but each such acknowledgment shall reflect where the acknowledgment was taken, as, for example, the state and county, the territory, etc.


WVC 29 - 4 - 15 §29-4-15. Seal of such commissioner.
Every such commissioner shall provide an official seal on which shall be inscribed his or her name and residence and the words "Commissioner for West Virginia". An impression or stamped imprint of such seal, together with his or her signature, shall be forthwith transmitted to and filed in the office of the Secretary of State.


WVC 29 - 4 - 16 §29-4-16. Authentication of such commissioner's certificate.

Every certificate of such commissioner shall be authenticated by his signature and official seal.


WVC 29 - 4 A- ARTICLE 4A. DEPARTMENT OF PUBLIC WELFARE.


WVC 29 - 4 A- 1 §§29-4A-1 to 29-4A-8.

Repealed.

Acts, 1936, 1st Ex. Sess. Ch. 1.


WVC 29 - 5 - ARTICLE 5. BUREAU OF NEGRO WELFARE AND STATISTICS.


WVC 29 - 5 - 1 §§29-5-1 to 29-5-4.

Repealed.

Acts, 1981 Reg. Sess., Ch. 173.


WVC 29 - 5 A- ARTICLE 5A. STATE ATHLETIC COMMISSION.


WVC 29 - 5 A- 1 §29-5A-1. Creation of commission; members; officers; seal and rules.
The state boxing commission, heretofore created, is hereby continued and renamed the state athletic commission. The commission shall consist of five persons appointed by the governor, by and with the consent of the Senate, no more than three of whom shall belong to the same political party and no two of whom shall be residents of the same county at the same time. The members shall serve without pay. The present members and terms of the members of the state boxing commission shall continue as the state athletic commission. At the expiration of the term of each member, his or her successor shall be appointed by the governor for a term of four years. In the event of a vacancy in said board, said vacancy shall likewise be filled by appointment by the governor and the governor shall likewise have the power to remove any commissioner at his or her pleasure. Any three members of the commission shall constitute a quorum for the exercise of the power or authority conferred upon it. The members of the commission shall at the first meeting after their appointment elect one of their number chairman of the commission, and another of their number secretary of the commission, shall adopt a seal for the commission, and shall make such rules for the administration of their office, not inconsistent herewith, as they may deem expedient; and they may hereafter amend or abrogate such rules. The concurrence of at least three commissioners shall be necessary to render a choice or decision of the commission.


WVC 29 - 5 A- 2 §29-5A-2. Powers and duties of secretary; penalty for false swearing, etc.; biennial reports of commission.
The office of the commission may be changed at pleasure by the said commission. The commission may designate as its official headquarters the residence or place of business of any one of its members. It shall be the duty of the secretary to keep a full and true record of all proceedings of said commission, to preserve all its books, documents and papers, to prepare for service such notices and other papers as may be required of him by the commission, and to perform such other duties as the commission may prescribe; and he may at the direction of the commission issue subpoenas for the attendance of witnesses before the commission with the same effect as if they were issued in an action in any circuit court of the state, and may administer oaths in all matters pertaining to the duties of his office or connected with the administration of the affairs of the commission. The subpoenas shall be on forms prescribed by the commission and served by the sheriff's department of the county in which the individual being subpoenaed resides. Such subpoenas shall be signed by at least two members. Disobedience of such subpoena and false swearing before such secretary shall be attended by the same consequences and be subject to the same penalties as if such disobedience or false swearing occurred in an action in any circuit court of the state. The commission shall make to the Legislature biennial reports of their proceedings for the two years ending with the last day of the preceding December, and may submit with such report, such recommendations pertaining to its affairs, as to it shall seem advisable.


WVC 29 - 5 A- 3 §29-5A-3. Commission to have sole control of boxing, etc., matches; licenses; municipality not to tax boxing, etc., club.
(a) The commission has sole direction, management and control of the jurisdiction over all amateur, professional and semiprofessional boxing, sparring matches and exhibitions, or any form thereof, to be conducted, held or given within the state by any club, individual, corporation or association. As used in this article, the term "boxing" includes any fighting event that includes or permits the striking of an opponent with a closed fist, even if wrestling moves, elements of martial arts, or striking an opponent with the feet are also permitted. No boxing, sparring or exhibition may be conducted, held or given within the state except pursuant to the commission's authority and held in accordance with this article. The commission may, in its discretion, issue and, at its pleasure, revoke the license to conduct, hold or give boxing or sparring matches or exhibitions to any club, corporation, association or individual. Every license is subject to rules the commission may prescribe. Every application for a license shall be on a blank form provided by the commission. No promoter's license may be granted to any club, corporation, association or individual, unless the signer of the application is a bona fide resident of the state of West Virginia. Upon application of the promoter's license, the promoter shall pay a state license fee of one hundred twenty-five dollars for one year. The fee shall be in the form of a certified check or money order and shall be issued to the treasurer of the state of West Virginia to be deposited in the general fund. If the license is not granted, the treasurer shall refund the full amount. Nonprofit chartered and charitable organizations are exempt from this license fee for all amateur events. No municipal corporation may impose any license tax on boxing, sparring or exhibition clubs, notwithstanding the provisions of any section of the code respecting municipal taxes and licenses. The granting of a license to a club by the commission, or the holding of a license by a club, individual, corporation or association, does not prevent the commission from canceling or revoking the license to conduct an event, as provided in this section.

(b) In exercising its jurisdiction over professional, semiprofessional and amateur boxing, sparring matches and exhibitions, the commission shall follow the current United States boxing authority rules and requirements to enable the proper sanctioning of all participants, referees, judges and matches or exhibitions conducted under the rules described in subdivision (1), subsection (c), section twenty-four of this article and shall cooperate fully with the boxing authority in order that the sanctioning be extended to state boxers. For full contact boxing events and other boxing events that follow nontraditional rules, the commission may impose any limitations or restrictions reasonably necessary to guarantee the safety of the participants and the fair and honest conducting of the matches or exhibitions and may refuse to license any event that poses an unreasonable degree of risk to the participants.


WVC 29 - 5 A- 3 A §29-5A-3a. Power to regulate mixed martial arts.
     (a) The commission has sole power, direction, management and control over all professional mixed martial arts contests, matches and exhibitions, or any form thereof, to be promoted, conducted, held or given within the state.

     (b) As used in this article, the term "mixed martial arts" means a combative sporting contest, the rules of which allow two competitors to attempt to achieve dominance over one another by utilizing a variety of techniques including, but not limited to, striking, grappling and the application of submission holds.

     (c) A mixed martial arts contest, match or exhibition promoted, conducted, held or given within the state shall be under the commission's authority and be in accordance with the provision of this section. The provisions of this article that apply to boxing shall also apply to mixed martial arts as appropriate.

     (d) In exercising its jurisdiction over professional mixed martial arts contests matches and exhibitions, the commission shall follow the current unified rules of mixed martial arts as adopted by the Association of Boxing Commissions, to enable the proper licensing of all participants, referees and judges, and the approval of contests, matches or exhibitions conducted under the provisions of this section.

     (e) The commission may issue and revoke a license to promote, conduct, hold or give mixed martial arts contests, matches or exhibitions and may issue and revoke a license to be a contestant. Each license is subject to the provisions of this section and article, and the rules of the commission.

     (f) The commission shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this section, including:

     (1) Procedures and requirements for the issuance and renewal of licenses: Provided, That the procedures and requirements shall not:

     (A) Limit or prohibit mixed martial arts contests, matches or exhibitions; nor

     (B) Include a provision that a licensee be a West Virginia resident;

     (2) Exemptions from licensure;

     (3) Procedures for revoking licenses;

     (4) Adopting the unified rules of mixed martial arts;

     (5) A fee schedule;

     (6) Limitations or restrictions necessary to guarantee the safety of the participants;

     (7) The requirements for fair and honest conducting of the contests, matches or exhibitions; and

     (8) Any other rules necessary to effectuate the provisions of this section.

     (g) Notwithstanding the provisions of this code to the contrary, a municipality may not impose a municipal license tax under section four, article thirteen, chapter eight of this code on mixed martial arts clubs. The granting of a license to a club by the commission, or the holding of a license by a club, individual, corporation or association, does not prevent the commission from revoking the license to conduct an event, as provided in this section: Provided, That nothing in this subsection limits the authority of a municipality to impose any other taxes or fees on mixed martial arts contests, matches or exhibitions, pursuant to article thirteen, chapter eight of this code.
WVC 29 - 5 A- 4 §29-5A-4. Licenses to be in lieu of all other licenses.
The licenses herein imposed shall be in lieu of all other licenses or license taxes of the state of West Virginia, and no county, city, town or other municipality or other political subdivision of the state of West Virginia shall be empowered to levy or impose any license or license tax on any such person engaged in the business of conducting boxing or sparring matches and exhibitions under the jurisdiction of and being licensed by the commission.


WVC 29 - 5 A- 5 §29-5A-5. Expense of commission.
On or before December thirty-one of each year, the secretary of the commission shall present to the governor projected expenses for the following year. Such projections shall include all expenses of the commission and its official headquarters. Necessary expenses incurred by the commission shall be submitted on a standard expense form to the treasurer of the state of West Virginia to be paid from the general fund. Such expenses shall not exceed five thousand five hundred dollars per year.


WVC 29 - 5 A- 6 §29-5A-6. Payment of official in charge.
The deputy, inspector or other officials designated by the commission to be in charge of a boxing event shall be paid by the promoter at a rate of seventy-five dollars for each weigh-in ceremony and seventy-five dollars for each day of bouts. If a weigh-in occurs within three hours before the boxing bouts are scheduled to begin, the deputy, inspector or other officials will be paid only seventy-five dollars once for that particular night or day's events. Judges, timekeepers and inspectors shall be paid by the promoter at a rate of fifty dollars per day. Referees shall be paid by the promoter at a rate of seventy-five dollars per day.


WVC 29 - 5 A- 7 §29-5A-7. Interference with or restraining of professional boxing or exhibitions.
No person or persons, club, organization or corporation shall, except in accordance with law, interfere with or restrain, or attempt to interfere with or restrain, by any act, threat or otherwise, either within or without this state, the putting on or the conducting of any professional boxing match or exhibition of this state.


WVC 29 - 5 A- 8 §29-5A-8. Issuance of license; qualification for licenses; application of other provisions of chapter; hearings.
The commission, at its discretion, may issue a license to promote, conduct or hold professional boxing, sparring matches and exhibitions to any person, corporation, association, club or organization eligible for a license under this chapter.

Before being granted a license, or the renewal of such license, the applicant must establish to the satisfaction of the commission that he:

(a) Is skilled, or has knowledge, in the profession of boxing;

(b) Is of good moral character;

(c) Is physically fit and mentally sound;

(d) Will conduct his business in the best interest and welfare of the public, preserving the safety and health of participants and the best interests of professional boxing generally;

(e) Will adhere to and comply with all the rules and regulations of the commission pertaining to such license.

In the case of a corporate applicant, these factors shall pertain to its officers, directors, principal stockholders and employees.

Every license and licensee shall be subject to such rules and regulations, and amendments thereof, as the commission may prescribe.


WVC 29 - 5 A- 9 §29-5A-9. Sanction or permit from commission.
No boxing, sparring matches or exhibitions shall be conducted by any individual, club, organization or corporation having a license to conduct any such exhibitions in this state except by a sanction or permit from the commission.


WVC 29 - 5 A- 10 §29-5A-10. Sanction of commission and reports, etc., for showing of telecasts of boxing, sparring, etc.
Every club, corporation or association holding, showing or exhibiting a simultaneous telecast of any live, current or spontaneous boxing, sparring or exhibition or performance on a closed circuit telecast or subscription television viewed within this state, whether originating in this state or another state, and for which an admission charge is made shall obtain a permit from the commission, and shall within twenty-four hours after the termination of such showing, furnish the commission a written report, duly verified by one of its officers, showing the number of tickets sold for such showing and the amount of the gross proceeds thereof, and such other matters as the commission may prescribe.


WVC 29 - 5 A- 11 §29-5A-11.
Repealed.

Acts, 2004 Reg. Sess., Ch. 58.
WVC 29 - 5 A- 12 §29-5A-12. Length of rounds; weight of gloves.
No boxing or sparring match or exhibition shall be more than fifteen rounds of three minutes each in length with intermission of one minute each between rounds; and the contestants shall wear, during such contests, gloves weighing at least ten ounces, unless the commission finds that for limited categories or classes of fights a lesser weight is sufficient for the protection of the participants and authorizes the lesser weight by legislative rule.


WVC 29 - 5 A- 13 §29-5A-13. Cancellation of license for fake boxing, etc., exhibition; penalty for participating in such exhibition.
Any club, corporation, association or individual which may conduct, hold or give or participate in any sham or fake boxing, sparring or exhibition shall thereby forfeit its license issued in accordance with the provisions of this article, which shall thereupon be, by the commission, canceled and declared void; and it shall not be entitled to receive another such license or any license pursuant to the provisions of this article, nor shall any license thereafter be granted to any club, corporation, association or individual, including among its members, directors, partners or stockholders, any member, director, partner or stockholder of the club, corporation, association or individual whose license has been so forfeited. Any contestant who shall participate in any sham or fake boxing, sparring or exhibition, and any other person whatsoever who shall in any manner be connected with the arranging, planning, holding, conducting or giving of any such sham or fake boxing, sparring or exhibition shall be guilty of a misdemeanor, and, shall upon conviction thereof, be fined not less than five hundred dollars, nor more than one thousand dollars, or be confined in jail for a period of not less than six months, nor more than one year or both; and any contestant so participating shall be further totally disqualified from further admission or participation in any boxing or sparring held or given by any club, corporation, association or individual duly licensed for said purpose.


WVC 29 - 5 A- 14 §29-5A-14. Suspension, revocation, etc., of license.
The commission shall have the additional authority and power to suspend, revoke or place on probation the license of any licensee licensed under this chapter, who in the discretion of the commission:

(a) Is guilty of failure to obey any lawful order of the commission, the secretary or any inspector thereof;

(b) Is guilty of gross immorality;

(c) Is unfit or incompetent by reason of negligence;

(d) Is guilty of violating any provision of this chapter or rules and regulations of the commission;

(e) Has committed fraud or deceit in securing a license for himself or another;

(f) Has been convicted of a felony or misdemeanor involving moral turpitude in any jurisdiction within one year preceding the suspension or revocation and such conviction not previously reported to the commission by said licensee;

(g) Is an habitual drunkard or addicted to the use of narcotics;

(h) Is or has become mentally incompetent;

(i) Is or has been guilty of unprofessional or unethical conduct, or such conduct as to require a suspension or revocation of license in the interest of the public;

(j) Has failed to furnish the proper party a copy of any contract or statement required by this chapter or the rules and regulations promulgated hereunder, or has breached such a contract;

(k) Has loaned or permitted another person to use his license, or has borrowed or used the license of another;

(l) Has failed to maintain in force the bond required by this chapter;

(m) Has by act or omission conducted himself in a manner which would tend to be detrimental to the best interests of boxing generally, or to the public interest and general welfare;

(n) Has been disciplined in any manner by the boxing commission or similar agency or body of any jurisdiction;

(o) Has failed to pay a fine or forfeiture imposed by this chapter;

(p) Has, either within or without this state, by any act, threat, statement or otherwise, restrained, hindered, interfered with or prevented another promoter, club, association or booking agent, or has attempted, either within or without this state, in any such manner to restrain, hinder, interfere with or prevent another promoter, club, association or booking agent from presenting any boxing match or exhibition within or without the state of West Virginia;

(q) Has, either within or without this state, engaged, directly or indirectly, in restraints or monopolies or taken any action tending to create or establish restraints or monopolies or conspired with others to restrain any person or persons from participating or competing in any boxing match or exhibition for any promoter, club, association or booking agent.


WVC 29 - 5 A- 15 §29-5A-15. Reports by clubs to commission; bonds of applicants for license.
Every club, corporation, association or individual which may hold or exercise any of the privileges conferred by this article, shall within twenty-four hours after the determination of any contest, furnish to the commission a written report, duly verified by one of its officers, showing the number of tickets sold for such contest and the amount of the gross proceeds thereof, and such other matters as the commission may prescribe. Before any license shall be granted to any club, corporation, association or individual to conduct, hold or give any boxing, sparring or exhibition, such applicant therefor shall execute and file with the commission a surety bond in the sum of which shall be at the discretion of said commission, to be approved as to form and the sufficiency of the security thereon by the said commission. Such bond shall cover all purses, awards and payments to be paid by the promoter.


WVC 29 - 5 A- 16 §29-5A-16. Presence of members of commission or inspector at exhibitions and matches.
Each member of the commission shall have the privilege of being present at all exhibitions and matches without charge therefor, and shall, when present, see that the rules are strictly observed, and may be present at the counting of the gross receipts; and in the event that no member of the commission can be present, the commission may appoint an inspector to be present representing said commission, which inspector shall have the same privilege hereby conferred upon a member of the commission; and said inspector shall immediately mail to the commission the official box office statement received by him from the officers of the club.


WVC 29 - 5 A- 17 §29-5A-17. Referee and judges; appointment by commission; powers, payment.
The chief official of the boxing match or exhibition shall be the referee. The referee and judges shall be appointed by the commission, and shall receive from the commission a card authorizing them to act as such, and no club shall employ or permit anyone to act as referee except one holding such card of authorization from the commission. The referee shall have general supervision and control over the match or exhibition and shall be paid by the promoter twenty-five dollars for each day or night's services. The referee shall be limited to refereeing a maximum of thirty rounds per day or night unless special consent is given by the commission.


WVC 29 - 5 A- 18 §29-5A-18. Examination of contestants by physician; presence at contest; report to commission.
In any boxing or exhibition match, each contestant must be examined by a qualified physician prior to entering the ring. The physician shall certify in writing over his signature, as to contestant's physical condition to engage in such contest. Qualified technicians may assist the physician in the examinations, and a physician shall be in attendance during any boxing bouts prepared to deal with any emergency which may arise. But in the event that said physician is convinced of the unfitness of either of the contestants to enter the contest, he shall at once certify such opinion to the club, corporation, association or individual under whose management the contest is conducted, and it shall thereupon be unlawful for said club, corporation, association or individual to proceed with such. Whenever a participant, in the opinion of the physician, is unable to continue in a boxing match, the physician may stop the bout.


WVC 29 - 5 A- 19 §29-5A-19. Weight of boxers.
No boxer shall be permitted to contest against an opponent ten pounds heavier than himself when the weight of either contestant is less than one hundred fifty pounds.


WVC 29 - 5 A- 20 §29-5A-20. Licenses for contestants, referees and managers.
No professional contestant, trainer, inspector, referee or professional manager is permitted to take part in any boxing contest or exhibition unless holding a license from the state, said license to be issued by the commission upon payment of ten dollars a year. Such fees shall accompany the application and shall be in the form of a certified check or money order and shall be issued to the treasurer of the state of West Virginia to be deposited in the general fund. Should such license not be granted, the treasurer shall refund the full amount.


WVC 29 - 5 A- 21 §29-5A-21. Penalty for engaging in unlawful contest.
Any person who shall engage in a boxing contest with another person for money or other such things of value, or for any championship, when an admission fee is charged, either directly or indirectly in this state, except when such contest is held in compliance with this article, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars, and not more than five hundred dollars.


WVC 29 - 5 A- 22 §29-5A-22. Penalty for violation not expressly provided for.
If any person shall violate any provision of this article, for which violation a penalty is not here expressly provided, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars, nor more than five hundred dollars.


WVC 29 - 5 A- 23 §29-5A-23. Injunctive relief for violation of chapter.
In the event of violation of any provision of this chapter, in addition to any other remedy, the commission may apply to any court of record in the state of West Virginia for relief without being compelled to allege or prove that any adequate remedy at law does not exist.


WVC 29 - 5 A- 24 §29-5A-24. Rules and regulations governing contestants and matches.
(a) The commission shall promulgate its rules in compliance with the provisions of article three of chapter twenty-nine-a of this code.

(b) The commission shall promulgate such rules as it determines to be necessary to regulate professional and semiprofessional boxers, and professional and semiprofessional boxing matches and exhibitions. For full contact boxing and other boxing events that follow nontraditional rules, rules guaranteeing the safety of the participants and the fair and honest conducting of the matches or exhibitions are authorized.

(c) The commission shall promulgate separate rules for amateur boxers and amateur boxing, sparring matches and exhibitions as follows:

(1) Rules which comply with the requirements of the rules of the current United States amateur boxing authority to the extent that any boxer complying with them will be eligible to participate in any state, national or international boxing match sanctioned by the current United States amateur boxing authority or the international amateur boxing association.

(2) Rules which may differ from the rules of the current United States amateur boxing authority but which adequately guarantee the safety of the participants and the fair and honest conducting of the matches or exhibitions. As a part of these rules, the commission shall include a requirement that all boxers participating in matches or exhibitions conducted under these rules be informed prior to such participation that such participation will disqualify them from participating in state, national or international matches and exhibitions sanctioned by the current United States amateur boxing authority or the international amateur boxing association.


WVC 29 - 5 A- 25 §29-5A-25. Special permits to American Legion and other organizations.
Nothing in this article contained shall be construed to render unlawful boxing, sparring or exhibition contests for any charitable purpose, the American Legion, National Guard, Veterans of Foreign Wars, or other charitable organizations, but a permit shall be obtained from the commission. No charge shall be made for such permit.


WVC 29 - 5 A- 25 A §29-5A-25a. Certain amateur matches exempt.

The provisions of this article do not apply to amateur wrestling, amateur boxing, or amateur sparring matches or exhibitions conducted by any university, college or high school.


WVC 29 - 5 A- 26 §29-5A-26. Severability.
If any section, clause, provision or portion of this article shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause or provision of this article which is not in and of itself unconstitutional.


WVC 29 - 6 - ARTICLE 6. CIVIL SERVICE SYSTEM.


WVC 29 - 6 - 1 §29-6-1. General purpose.
The general purpose of this article is to attract to the service of this state personnel of the highest ability and integrity by the establishment of a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, removal, discipline, classification, compensation and welfare of its civil employees, and other incidents of state employment. All appointments and promotions to positions in the classified service shall be made solely on the basis of merit and fitness, except as hereinafter specified. All employment positions not in the classified service, with the exception of the board of regents, are included in a classification plan known as classified-exempt service.


WVC 29 - 6 - 2 §29-6-2. Definition of terms.
As used in this article, unless the context indicates otherwise, the term:

(a) "Administrator" means any person who fills a statutorily created position within or related to an agency or board (other than a board member) and who is designated by statute as commissioner, deputy commissioner, assistant commissioner, director, chancellor, chief, executive director, executive secretary, superintendent, deputy superintendent or other administrative title, however designated;

(b) "Agency" means any administrative unit of state government, including any authority, board, bureau, commission, committee, council, division, section or office;

(c) "Appointing authority" means a person or group of persons authorized by an agency to make appointments to positions in the classified or classified-exempt service;

(d) "Board" means the State Personnel Board created by section six of this article;

(e) "Class" or "class of positions" means a group of positions sufficiently similar in duties, training, experience and responsibilities, as determined by specifications, that the same qualifications, the same title and the same schedule of compensation and benefits may be equitably applied to each position in the group;

(f) "Classification plan" means the plan by which positions in the classified service and classified-exempt service have been allocated by class;

(g) "Classified-exempt service" means an employee whose position satisfies the definitions for "class" and "classify" but who is not covered under the civil service system or employed by the higher education governing boards;

(h) "Classified service" means an employee whose job satisfies the definitions for "class" and "classify" and who is covered under the civil service system;

(i) "Classify" means to group all positions in classes and to allocate every position to the appropriate class in the classification plan;

(j) "Director" means the head of the Division of Personnel as appointed by section seven of this article;

(k) "Division" means the Division of Personnel herein created;

(l) "Policy-making position" means a position in which the person occupying it: (1) Acts as an advisor to or formulates plans for the implementation of broad goals for an administrator or the Governor; (2) is in charge of a major administrative component of the agency; and (3) reports directly and is directly accountable to an administrator or the Governor;

(m) "Position" means a particular job which has been classified based on specifications;

(n) "Secretary" means the Secretary of the Department of Administration created in section two, article one, chapter five-f of this code;

(o) "Specification" means a description of a class of position which defines the class, provides examples of work performed and the minimum qualifications required for employment;

(p) "Veteran" means any person who has served in the armed forces of the United States of America during World War I (April 6, 1917--November 11, 1918), World War II (December 7, 1941--December 31, 1946), the Korean Conflict (June 27, 1950--January 31, 1955), the Vietnam Conflict (August 5, 1964--May 7, 1975) or in a campaign, expedition or conflict for which a campaign badge has been authorized and received by such person and who has received a discharge under honorable conditions from such service.


WVC 29 - 6 - 3 §29-6-3. Classified service.

The classified service includes all positions covered by the civil service system as of the effective date of this article, except as otherwise provided in this article. Positions may be added to the classified service as provided in section four of this article.


WVC 29 - 6 - 4 §29-6-4. Classified-exempt service; additions to classified   service; exemptions.

     (a) The classified-exempt service includes all positions included in the classified-exempt service on the effective date of this article.

     (b) Except for the period commencing on July 1, 1992, and ending on the first Monday after the second Wednesday of the following January and except for the same periods commencing in the year 1996, and in each fourth year thereafter, the Governor may, by executive order, with the written consent of the State Personnel Board and the appointing authority concerned, add to the list of positions in the classified service, but the additions may not include any positions specifically exempted from coverage as provided in this section.

     (c) The following offices and positions are exempt from coverage under the classified service:

     (1) All judges, officers and employees of the judiciary;

     (2) All members, officers and employees of the Legislature;

     (3) All officers elected by popular vote and employees of the officer;

     (4) All secretaries of departments and employees within the office of a secretary;

     (5) Members of boards and commissions and heads of departments appointed by the Governor or heads of departments selected by commissions or boards when expressly exempt by law or board order;

     (6) Excluding the policy-making positions in an agency, one principal assistant or deputy and one private secretary for each board or commission or head of a department elected or appointed by the Governor or Legislature;

     (7) All policy-making positions;

     (8) Patients or inmates employed in state institutions;

     (9) Persons employed in a professional or scientific capacity to make or conduct a temporary and special inquiry, investigation or examination on behalf of the Legislature or a committee thereof, an executive department or by authority of the Governor;

     (10) All employees of the office of the Governor, including all employees assigned to the executive mansion;

     (11) Part-time professional personnel engaged in professional services without administrative duties and personnel employed for one thousand hours or less during a working year;

     (12) Members and employees of the board of trustees and board of directors or their successor agencies;

     (13) Uniformed personnel of the State Police; and

     (14) Seasonal employees in the state forests, parks, and recreational areas working less than 1,733 hours per calendar year. Notwithstanding any provision of law to the contrary, seasonal employees are not considered full-time employees.

     (d) The Legislature finds that the holding of political beliefs and party commitments consistent or compatible with those of the Governor contributes in an essential way to the effective performance of and is an appropriate requirement for occupying certain offices or positions in state government, such as the secretaries of departments and the employees within their offices, the heads of agencies appointed by the Governor and, for each such head of agency, a private secretary and one principal assistant or deputy, all employees of the office of the Governor including all employees assigned to the executive mansion, as well as any persons appointed by the Governor to fill policy-making positions, in that those offices or positions are confidential in character and require their holders to act as advisors to the Governor or the Governor's appointees, to formulate and implement the policies and goals of the Governor or the Governor's appointees, or to help the Governor or the Governor's appointees communicate with and explain their policies and views to the public, the Legislature and the press.

     (e) All county road supervisor positions are covered under the classified service effective July 1, 1999. A person employed as a county road supervisor on the effective date of this section, is not required to take or pass a qualifying or competitive examination upon or as a condition of becoming a classified service employee. All county road supervisors who become classified service employees pursuant to this subsection who are severed, removed or terminated in his or her employment must be severed, removed or terminated as if the person was a classified service employee.
WVC 29 - 6 - 4 A §29-6-4a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29.


WVC 29 - 6 - 5 §29-6-5. Division of Personnel continued; functions.
(a) The Division of Personnel is continued within the Department of Administration.

(b) The Division of Personnel shall perform the following functions:

(1) Evaluating applicants for appointment or promotion to positions in the classified service;

(2) Establishing and applying a system of classification for positions in the classified and classified-exempt service;

(3) Establishing and applying a system of compensation for positions in the classified service;

(4) Establishing and maintaining records of employment for classified employees;

(5) Advising appointing authorities and supervisory personnel regarding disciplinary matters, the provisions of this article, rules implementing the provisions of this article, and laws and rules affecting human resource management;

(6) Providing training in human resource management and the operation of the state personnel system;

(7) Assuring compliance with this article and rules implementing the provisions of this article; and

(8) Other functions necessary to the establishment of a system of personnel administration as provided in this article.


WVC 29 - 6 - 5 A §29-6-5a.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 6 - 6 §29-6-6. State Personnel Board continued; members; term; quorum; vacancies; powers and duties.
(a) There is continued within the Division a State Personnel Board consisting of the Secretary of the Department of Administration or his or her designee who serves as an ex officio nonvoting member and five members appointed by the Governor, with the advice and consent of the Senate, for terms of four years and until the appointment of their successors. No more than four members may be of the same political party. Four members of the Board constitute a quorum.

(b) A member of the Board may not be removed from office except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only in the manner prescribed in article six, chapter six of this code for the removal by the Governor of state elected officers.

(c) Citizen members of the Board shall each be compensated for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties, as recommended by the Citizens Legislative Compensation Commission as authorized by law, and may be reimbursed actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.

(d) The Secretary of the Department of Administration or his or her designee serves as Chair of the Board. The Board shall meet at the time and place specified by the call of the Chair. At least one meeting shall be held in each month. All meetings shall be open to the public. Notice of each meeting shall be given in writing to each member by the Director at least three days in advance of the meeting period.

(e) In addition to other powers and duties invested in it by this article or by any other law, the Board shall:

(1) Propose rules for legislative approval, in accordance with chapter twenty-nine-a of this code, to implement the provisions of this article;

(2) Interpret the application of this article to any public body or entity; and

(3) Authorize and conduct any studies, inquiries, investigations or hearings in the operation of this article it considers necessary.

(f) The Director or the Board may subpoena and require the attendance of witnesses in the production of evidence or documents relevant to any proceeding under this article.


WVC 29 - 6 - 7 §29-6-7. Director of personnel; appointment; qualifications; powers and duties.
(a) The Secretary of the Department of Administration shall appoint the director. The director shall be a person knowledgeable of the application of the merit principles in public employment as evidenced by the obtainment of a degree in business administration, personnel administration, public administration or the equivalent or at least five years of administrative experience. The salary for the director shall be that which is set out in section two-a, article seven, chapter six of this code.

(b) The director shall:

(1) Consistent with the provisions of this article, administer the operations of the division, allocating the functions and activities of the division among sections as the director may establish;

(2) Maintain a personnel management information system necessary to carry out the provisions of this article;

(3) Supervise payrolls and audit payrolls, reports or transactions for conformity with the provisions of this article;

(4) Plan, evaluate, administer and implement personnel programs and policies in state government and to political subdivisions after agreement by the parties;

(5) Supervise the employee selection process and employ performance evaluation procedures;

(6) Develop programs to improve efficiency and effectiveness of the public service, including, but not limited to, employee training, development, assistance and incentives, which, notwithstanding any provision of this code to the contrary, may include a one-time monetary incentive for recruitment and retention of employees in critically understaffed classifications. The director, in consultation with the board, shall determine which classifications are critically understaffed. The one-time monetary incentive program shall continue until June 30, 2009. The director shall report annually on or before December 31, commencing in the year 2007, to the Joint Committee on Government and Finance. The annual report shall provide all relevant information on the one-time monetary incentive program and the understaffed classifications in state agencies;

(7) Establish pilot programs and other projects for a maximum of one year outside of the provisions of this article, subject to approval by the board, to be included in the annual report;

(8) Establish and provide for a public employee interchange program and may provide for a voluntary employee interchange program between public and private sector employees;

(9) Establish an internship program;

(10) Assist the Governor and Secretary of the Department of Administration in general workforce planning and other personnel matters;

(11) Make an annual report to the Governor and Legislature and all other special or periodic reports as may be required;

(12) Assess cost for special or other services;

(13) Recommend rules to the board for implementation of this article; and

(14) Conduct schools, seminars or classes for supervisory employees of the state regarding handling of complaints and disciplinary matters and the operation of the state personnel system.


WVC 29 - 6 - 7 A §29-6-7a. Report on a centralized personnel system.
Before the thirtieth day of September, two thousand seven, the director of the Division of Personnel shall report to the Joint Committee on Government Organization on the following:

(1) A centralized personnel/human relations system for the state;

(2) The benefits, cost effect and drawbacks of a centralized system;

(3) The structure for the system, including a recommendation on the number of satellite offices; and

(4) Any other recommendations the director finds beneficial to satisfy the personnel/human relations needs of the state.


WVC 29 - 6 - 8 §29-6-8. Duties of board generally.
In addition to the duties expressly set forth elsewhere in this article, the board shall:

(1) Represent the public interest in the improvement of personnel administration in the classified service.

(2) Advise the governor, the secretary, and the director on problems concerning personnel administration.

(3) Foster the interest of institutions of learning and of industrial, civic, professional and employee organizations in the improvement of personnel standards in the classified service.

(4) Make any investigation which it may consider desirable concerning the administration of personnel in the classified service and make recommendations to the director with respect thereto.

(5) Approve the budget as prepared by the director for administration of this article before submission to the division of finance and administration.


WVC 29 - 6 - 9 §29-6-9. Civil service commission abolished; transfer of duties and responsibilities; rule of construction; transfer of employees, equipment, and records; continuation of programs, protections and rules.

(a) The civil service commission is hereby abolished. All duties and responsibilities heretofore imposed upon the civil service commission are hereby imposed upon the state personnel board, and all duties and responsibilities heretofore imposed upon the director of the civil service system are hereby imposed upon the director of the division of personnel. Except as used in this section, the words "civil service commission" or "commission," when used in this article, shall refer to and mean the state personnel board. Whenever reference is made to the director of the civil service commission, the power or duty prescribed shall apply to the director of the division of personnel.

(b) Persons employed on the effective date of this article by the civil service commission, the duties and functions of which have been transferred to the division of personnel, are hereby assigned and transferred to the division of personnel. It is the intent of this article to consolidate into the division of personnel those agencies and employees performing personnel functions which will be facilitated by their consolidation, except as excluded in section four of this article. On the effective date of this article, all personnel payroll positions and employees occupying those positions necessary to effectuate the purposes of this article shall be transferred to the division of personnel: Provided, That in order to provide for a smooth transition, the governor may, by executive order, determine those positions and employees that shall be transferred and provide that the transfers provided for in this subsection take effect no later than the last day of September, one thousand nine hundred eighty-nine.

(c) Upon the transfer, if any, of any personnel payroll positions as provided in subsection (b) of this section from the division of highways, the division of motor vehicles, the workers' compensation fund, the public service commission, or any other department or division operating from special revenue funds or federal funds, such department or division shall pay to the division of personnel the costs of personnel services, as determined by the secretary of the department of administration, provided to their respective divisions. When no specific appropriation is made for this purpose, such payments shall be made from personal services, annual increment, and employee benefit appropriations to the department or division. Upon the transfer of any personnel payroll positions to the division of personnel from any department or division funded from general revenues of the state, the governor is authorized and empowered to order the transfer of funds for those positions.

(d) The abolishment of the civil service commission and the creation of the division of personnel shall in no way hinder any ongoing programs, benefits, litigation, or grievance procedures. Employees in the classified service who have gained permanent status as of the effective date of this article will not be subject to further qualifying examination by reason of any transfer required by the provisions of this section, except when they wish to qualify for promotion. Nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state to the procedures and protections set forth in sections ten and ten-a of this article, except as provided in subsection (d), section two, article two, chapter five-f of this code.

(e) On the effective date of this article, all equipment and records necessary to effectuate the purposes of this article shall be transferred to the division of personnel: Provided, That in order to provide for a smooth transition, the governor may, by executive order, determine the equipment and records to be transferred and provide that the transfers provided for in this subsection take effect no later than the last day ofSeptember, one thousand nine hundred eighty-nine.

(f) The rules of the civil service commission shall remain in force and effect until promulgation of new or additional rules by the state personnel board.

(g) Nothing contained in this article shall be construed to preclude the reclassification or reallocation of positions in accordance with procedures set forth in section ten of this article.


WVC 29 - 6 - 9 A §29-6-9a.
Repealed.

Acts, 2009 Reg. Sess., Ch. 202.


WVC 29-6-10 §29-6-10. Rules of division.
The board shall have the authority to promulgate, amend or repeal rules, according to chapter twenty-nine-a of this code, to implement the provisions of this article:

(1) For the preparation, maintenance and revision of a position classification plan for all positions in the classified service and a position classification plan for all positions in the classified-exempt service, based upon similarity of duties performed and responsibilities assumed, so that the same qualifications may reasonably be required for and the same schedule of pay may be equitably applied to all positions in the same class. Except for persons employed by the governing boards of higher education, all persons receiving compensation as a wage or salary, funded either in part or in whole by the state, are included in either the position classification plan for classified service or classified-exempt service. After each such classification plan has been approved by the board, the director shall allocate the position of every employee in the classified service to one of the classes in the classified plan and the position of every employee in the classified-exempt service to one of the positions in the classified-exempt plan. Any employee affected by the allocation of a position to a class shall, after filing with the director of personnel a written request for reconsideration thereof in such manner and form as the director may prescribe, be given a reasonable opportunity to be heard thereon by the director. The interested appointing authority shall be given like opportunity to be heard.

(2) For a pay plan for all employees in the classified service, after consultation with appointing authorities and the state fiscal officers, and after a public hearing held by the board. Such pay plan shall become effective only after it has been approved by the governor after submission to him by the board. Amendments to the pay plan may be made in the same manner. Each employee shall be paid at one of the rates set forth in the pay plan for the class of position in which he is employed. The principle of equal pay for equal work in the several agencies of the state government shall be followed in the pay plan as established hereby.

(3) For open competitive examinations to test the relative fitness of applicants for the respective positions in the classified service. Such examinations need not be held until after the rules have been adopted, the service classified and a pay plan established, but shall be held not later than one year after this article takes effect. Such examinations shall be announced publicly at least fifteen days in advance of the date fixed for the filing of applications therefor, and may be advertised through the press, radio and other media. The director may, however, in his or her discretion, continue to receive applications and examine candidates long enough to assure a sufficient number of eligibles to meet the needs of the service and may add the names of successful candidates to existing eligible lists in accordance with their respective ratings.

An additional five points shall be awarded to the score of any examination successfully completed by a veteran. A disabled veteran shall be entitled to an additional ten points, rather than five points as aforesaid, upon successful completion of any examination.

(4) For promotions within the classified service which shall give appropriate consideration to the applicant's qualifications, record of performance, seniority and his or her score on a written examination, when such examination is practicable. An advancement in rank or grade or an increase in salary beyond the maximum fixed for the class shall constitute a promotion. When any benefit such as a promotion, wage increase or transfer is to be awarded, or when a withdrawal of a benefit such as a reduction in pay, a layoff or job termination is to be made, and a choice is required between two or more employees in the classified service as to who will receive the benefit or have the benefit withdrawn, and if some or all of the eligible employees have substantially equal or similar qualifications, consideration shall be given to the level of seniority of each of the respective employees as a factor in determining which of the employees will receive the benefit or have the benefit withdrawn, as the case may be. When an employee classified in a secretarial or clerical position has, irrespective of job classification, actual job experience related to the qualifications for a managerial or supervisory position, the division shall consider the experience as qualifying experience for the position. The division in its classification plan may, for designated classifications, permit substitution of qualifying experience for specific educational or training requirements at a rate determined by the division.

(5) For layoffs by classification for reason of lack of funds or work, or abolition of a position, or material changes in duties or organization, or any loss of position because of the provisions of this subdivision and for recall of employees so laid off, consideration shall be given to an employee's seniority as measured by permanent employment in the classified service or a state agency. In the event that the agency wishes to lay off a more senior employee, the agency must demonstrate that the senior employee cannot perform any other job duties held by less senior employees within that agency in the job class or any other equivalent or lower job class for which the senior employee is qualified: Provided, That if an employee refuses to accept a position in a lower job class, such employee shall retain all rights of recall as hereinafter provided.

(6) For recall of employees, recall shall be by reverse order of layoff to any job class that the employee has previously held or a lower class in the series within the agency as that job class becomes vacant. An employee will retain his or her place on the recall list for the same period of time as his or her seniority on the date of his or her layoff or for a period of two years, whichever is less. No new employees shall be hired for any vacancy in his or her job class or in a lower job class in the series until all eligible employees on layoff are given the opportunity to refuse that job class. An employee shall be recalled onto jobs within the county wherein his or her last place of employment is located or within a county contiguous thereto. Any laid-off employee who is eligible for a vacant position shall be notified by certified mail of the vacancy. It shall be the responsibility of the employee to notify the agency of any change in his or her address.

Notwithstanding any other provision of the code to the contrary, except for the provisions of section seven, article two, chapter five-b of this code, when filling vacancies at state agencies the directors of state agencies shall, for a period of twelve months after the layoff of a permanent classified employee in another agency, give preference to qualified permanent classified employees based on seniority and fitness over all but existing employees of the agency or its facilities: Provided, That employment of these persons who are qualified and who were permanently employed immediately prior to their layoff shall not supersede the recall rights of employees who have been laid off in such agency or facility.

(7) For the establishment of eligible lists for appointment and promotion within the classified service, upon which lists shall be placed the names of successful candidates in the order of their relative excellence in the respective examinations. Eligibility for appointment from any such list shall continue not longer than three years. An appointing authority shall make his selection from the top ten names on the appropriate lists of eligibles, or may choose any person scoring at or above the ninetieth percentile on the examination.

For the establishment of eligible lists for preference as provided in subdivision (6) of this section, a list shall be provided according to seniority. An appointed authority shall make the selection of the most senior qualified person: Provided, That eligibility for appointment from any such list shall continue not longer than one year and shall cease immediately upon appointment to a classified position.

(8) For the rejection of candidates or eligibles within the classified service who fail to comply with reasonable requirements in regard to such factors as age, physical condition, character, training and experience who are addicted to alcohol or narcotics or who have attempted any deception or fraud in connection with an examination.

(9) For a period of probation not to exceed one year before appointment or promotion may be made complete within the classified service.

(10) For provisional employment without competitive examination within the classified service when there is no appropriate eligible list available. No such provisional employment may continue longer than six months, nor shall successive provisional appointments be allowed, except during the first year after the effective date of this article, in order to avoid stoppage of orderly conduct of the business of the state.

(11) For keeping records of performance of all employees in the classified service, which service records may be considered in determining salary increases and decreases provided in the pay plan; as a factor in promotion tests; as a factor in determining the order of layoffs because of lack of funds or work and in reinstatement; and as a factor in demotions, discharges and transfers.

(12) For discharge or reduction in rank or grade only for cause of employees in the classified service. Discharge or reduction of these employees shall take place only after the person to be discharged or reduced has been presented with the reasons for such discharge or reduction stated in writing, and has been allowed a reasonable time to reply thereto in writing, or upon request to appear personally and reply to the appointing authority or his or her deputy: Provided, That upon an involuntary discharge for cause, the employer may require immediate separation from the workplace, or the employee may elect immediate separation. If separation is required by the employer in lieu of any advance notice of discharge, or if immediate separation is elected by an employee who receives notice of an involuntary discharge for cause, the employee is entitled to receive severance pay attributable to time the employee otherwise would have worked, up to a maximum of fifteen calendar days following separation. Receipt of severance pay does not affect any other right to which the employee is entitled with respect to the discharge. The statement of reasons and the reply shall be filed as a public record with the director. Notwithstanding the foregoing provisions of this subdivision, no permanent employee shall be discharged from the classified service for absenteeism upon using all entitlement to annual leave and sick leave when such use has been due to illness or injury as verified by a physician's certification or for other extenuating circumstances beyond the employee's control unless his or her disability is of such a nature as to permanently incapacitate him or her from the performance of the duties of his or her position. Upon exhaustion of annual leave and sick leave credits for the reasons specified herein and with certification by a physician that the employee is unable to perform his or her duties, a permanent employee shall be granted a leave of absence without pay for a period not to exceed six months if such employee is not permanently unable to satisfactorily perform the duties of his or her position.

(13) For such other rules and administrative regulations, not inconsistent with this article, as may be proper and necessary for its enforcement.

(14) The board shall review and approve by rules the establishment of all classified-exempt positions to assure consistent interpretation of the provisions of this article.

The provisions of this section are subject to any modifications contained in chapter five-f of this code. The board may include in the rules provided for in this article such provisions as are necessary to conform to regulations and standards of any federal agency governing the receipt and use of federal grants-in-aid by any state agency, anything in this article to the contrary notwithstanding. The board and the director shall see that rules and practices meeting such standards are in effect continuously after the effective date of this article.


WVC 29 - 6 - 10 A §29-6-10a. Reduction in work force.

(a) Notwithstanding any other provision of this article or any rule promulgated thereunder to the contrary, an employee in the classified service who has performed work for a reasonable period of time in a position with a classification that is higher than the position in which he is employed and classified may, in the event that his regular position would be terminated as a result of a reduction in force in his division, have the right to request that his classification be reviewed and that, in his or her supervisor's discretion, he be promoted to the higher classified position by passing a qualifying examination for such higher position and providing sufficient evidence of his work periods and satisfactory performance of the duties and responsibilities of the higher classified position.

The commission shall provide by legislative rule for the maintenance of records by all covered agencies of the work periods and rating of job performance of employees performing work in a position or positions with a classification that is higher than the position in which he is employed and classified and the duration of work periods required to request review and promotion.

(b) The provisions of this subsection shall be of no force and effect on and after the first day of July, one thousand nine hundred ninety-five. Notwithstanding any other provision of this code to the contrary, a managerial or supervisory employee in the classified service of this state with a classified service pay grade of sixteen or higher who is adversely affected by a reduction in force shall not be entitled to be reassigned, transferred or otherwise retained for any position in state government except as provided in this section, and no regulation or policy shall provide for such a right: Provided, That there shall be no redesignation of the levels of pay grades in the classified service in effect on the first day of May, one thousand nine hundred ninety-four. Any such employee shall have the right, upon notice of and prior to the effective date of the reduction in force, to accept a position in a lower job class at no less than the entry salary of that position if the employee: (1) Has formerly performed the duties of that position or the substantial equivalent thereof and is otherwise qualified within the classified service for that position; and (2) is a more senior employee than the least senior employee then employed in such position. No provision of this section shall be construed to deny the right of the appointing authority, in his or her discretion, to reassign, transfer or otherwise retain such employee to or for another position for which the employee is qualified within the classified service. Where the employee is not reassigned, transferred or otherwise retained pursuant to the provisions of this section, no provision of this section shall be construed to deny the employee the opportunity to reapply for entrance in the classified service of the state through participation in competitive examinations.


WVC 29 - 6 - 11 §29-6-11. Duty to furnish facilities for division's use.
All officers and employees of the state and of municipalities and political subdivisions of the state shall allow the division the reasonable use of public buildings under their control, and furnish heat, light and furniture, for any examination, hearing or investigation authorized by this article. The division shall pay to a municipality or political subdivision the reasonable cost of any such facilities furnished by it.


WVC 29 - 6 - 12 §29-6-12. Duties of state officers and employees; legal proceedings to secure compliance with article and rules.

All officers and employees of the state shall comply with and aid in all proper ways in carrying out the provisions of this article and the rules and orders thereunder. All officers and employees shall furnish any records or information which the director may request for any purpose of this article. The director may institute and maintain any action or proceeding at law or in equity that he considers necessary or appropriate to secure compliance with this article and the rules and orders thereunder.


WVC 29 - 6 - 13 §29-6-13.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29


WVC 29 - 6 - 14 §29-6-14. Certification of payrolls; wrongfully withholding certification of payroll.
(a) No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person holding a position in the classified service unless the payroll voucher or account of such pay bears the certification of the director, or of his authorized agent, that the persons named therein have been appointed and employed in accordance with the provisions of this article and the rules, regulations and orders thereunder. The director may for proper cause withhold certification from an entire payroll or from any specific item or items thereon. The director may, however, provide that certification of payrolls may be made once every six months, and such certification shall remain in effect except in the case of any officer or employee whose status has changed after the last certification of his payroll. In the latter case no voucher for payment of salary to such employee shall be issued or payment of salary made without further certification by the director.

(b) If the director wrongfully withholds certification of the payroll voucher or account of any employee, such employee may maintain a proceeding in the courts to compel the director to certify such payroll voucher or account.


WVC 29 - 6 - 15 §29-6-15.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29


WVC 29 - 6 - 16 §29-6-16. Records of division.

The records of the division, except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection, subject to reasonable regulations as to the time and manner of inspection which may be prescribed by the director.


WVC 29 - 6 - 17 §29-6-17. Services to political subdivisions; cooperation with agencies for other jurisdictions.
(a) Subject to the approval of the board the director may enter into agreements with any municipality or other political subdivision of the state to furnish services and facilities of the division to such municipality or political subdivision in the administration of its personnel on merit principles. Any such agreements shall provide for the reimbursement to the state of the reasonable cost of the services and facilities furnished, as determined by the director. All municipalities and political subdivisions of the state are hereby authorized to enter into such agreements. Subject to the approval of the board, the director may enter into an agreement with the state department of health for the inclusion of personnel of local health departments under the classified service system established by this article.

(b) The director may cooperate with governmental agencies for other jurisdictions charged with personnel administration in conducting joint tests and establishing joint lists from which eligibles shall be certified for appointment in accordance with the provisions of this article.


WVC 29-6-17A §29-6-17a.
Repealed.

Acts, 1999 Reg. Sess., Ch. 52.


WVC 29-6-17B §29-6-17b.
Repealed.

Acts, 1999 Reg. Sess., Ch. 52.


WVC 29 - 6 - 18 §29-6-18.

Repealed.

Acts, 1989 Reg. Sess., Ch. 29


WVC 29 - 6 - 19 §29-6-19. Refusal to testify.
If any employee in the classified or classified-exempt service shall willfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or answer any question relating to the affairs or government of the state or the conduct of any state officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to accept a grant of immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, he shall forfeit his office or position and shall not be eligible thereafter for appointment to any position in the classified or classified-exempt service.


WVC 29 - 6 - 20 §29-6-20. Favoritism or discrimination because of political or religious opinions, affiliations or race; political activities prohibited.
(a) No person shall be appointed or promoted to or demoted or dismissed from any position in the classified service or in any way favored or discriminated against with respect to such employment because of his or her political or religious opinions or affiliations or race; but nothing herein shall be construed as precluding the dismissal of any employee who may be engaged in subversive activities or found disloyal to the nation.

(b) No person shall seek or attempt to use any political endorsement in connection with any appointment in the classified service.

(c) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person or for any consideration.

(d) No employee in the classified service or member of the board or the director shall, directly or indirectly, solicit or receive any assessment, subscription or contribution, or perform any service for any political party, committee or candidate for compensation, other than for expenses actually incurred, or in any manner take part in soliciting any such assessment, subscription, contribution or service of any employee in the classified service.

(e) Notwithstanding any other provision of this code, no employee in the classified service shall:

(1) Use his or her official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) Directly or indirectly coerce, attempt to coerce, command or advise a state or local officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for political purposes; or

(3) Be a candidate for any national or state paid public office or court of record; or hold any paid public office other than as a paid poll clerk or worker; or be a member of any national, state or local committee of a political party, or a financial agent or treasurer within the meaning of the provisions of section three, four or five-e, article eight, chapter three of this code. Other types of partisan or nonpartisan political campaigning and management not inconsistent with the provisions of this subdivision and with the provisions of subsection (d) of this section shall be permitted.

(f) Political participation pertaining to constitutional amendments, referendums, approval of municipal ordinances or activities, serving as a poll clerk or worker or being a candidate for or serving as a delegate to any state or national political party convention shall not be deemed to be prohibited by the foregoing provisions of this section.

(g) Any classified employee who becomes a candidate for any paid public office as permitted by this section shall be placed on a leave of absence without pay for the period of such candidacy, commencing upon the filing of the certificate of candidacy.


WVC 29 - 6 - 21 §29-6-21. Acts prohibited.
(a) No person shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under any provisions of this article or in any manner commit or attempt to commit any fraud preventing the impartial execution of this article and the rules.

(b) No person shall, directly or indirectly, give, render, pay, offer, solicit or accept any money, or other valuable consideration for or on account of any certification, appointment, proposed appointment, promotion or proposed promotion to, or any advantage in, a position in the classified service.

(c) No employee of the division, examiner, or other person shall defeat, deceive or obstruct any person in his right to examination, eligibility, certification or appointment under this article, or furnish to any person any special or secret information for the purpose of affecting the rights or prospects of any person with respect to employment in the classified service.


WVC 29 - 6 - 22 §29-6-22. Penalties.
(a) Any person who willfully violates any provision of this article or of the rules shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the county jail for a period not to exceed one year, or both fined and imprisoned. Jurisdiction under this section shall be in a court of record exercising criminal jurisdiction within the county wherein the offense is committed.

(b) Any person who is convicted of a misdemeanor under this article shall, for a period of five years, be ineligible for appointment to or employment in a position in the classified or classified-exempt service, and if he is an officer or employee of the state, shall forfeit his present office or position.


WVC 29 - 6 - 23 §29-6-23. Special fund; appropriations; cost of administering article; acceptance of grants or contribution; disbursements.


For the operation of the division, there is hereby created in the state treasury a special revolving fund to be known and designated as the "division of personnel fund." This fund shall consist of appropriations made by the Legislature, funds transferred in accordance with the provisions of section nine of this article, funds received for personnel services rendered to other agencies, departments, divisions and units of state and local government, and funds received by grant or contribution from the federal government or any other entity which funds the division is hereby authorized to receive: Provided, That for fiscal year one thousand nine hundred ninety all funds remaining in account numbers 5840-00, 5840-35 and 5840-17 shall be transferred to the division of personnel fund on the effective date of this article. Each agency, department, division or unit of state or local government served by the division of personnel is hereby authorized and directed to transmit to the division for deposit in said special fund the charges made by the division of personnel for personnel services rendered, such charges to be those fixed in a schedule or schedules prepared by the director and approved by the secretary of the department of administration. Disbursements from the fund shall be made in accordance with an approved expenditure schedule as provided by article two, chapter five-a of this code and shall be made under the direct supervision of the director.

The director shall maintain accurate records reflecting the cost of administering the provisions of this article.


WVC 29 - 6 - 24 §29-6-24. Posting of job openings.
(a) Whenever a job opening occurs within the classified service, the appointing authority shall, in addition to any other requirement of law or regulation for the posting of job opening notices, at least ten days before making an appointment to fill the job opening, post a notice within the building or facility where the duties of the job will be performed and throughout the agency, which notice states that a job opening has occurred and describes the duties to be performed by a person employed in that position.

(b) If an individual selected for a posted vacancy within the first ten work days of employment: (1) Refuses the offer of employment; (2) fails to report to work; or (3) resigns or otherwise separates from employment, the appointing authority is not required to repost the vacancy prior to another appointment to the position if the appointment is made within thirty days and the selection is made from the pool of eligible applicants from which the first employee was hired.


WVC 29 - 6 - 25 §29-6-25. Implementation; report to governor and Legislature.

(a) General implementation is to be completed no later than twelve months following the effective date of this article.

(b) There is hereby created an implementation task force to assist in the general implementation of this article and the establishment of the division. The task force shall consist of twelve members and the director of personnel. Task force members shall be appointed by the governor.

(c) The director shall provide a report to the secretary of the department of administration, who shall then, within one year from the effective date of this article, report to the governor and Legislature on the progress of the implementation of this article.


WVC 29 - 6 - 26 §29-6-26. Employee representative organization bulletin boards.

A bulletin board of a limited size shall be provided for posting notices of employee representative organizations. Such bulletin boards will be placed in convenient and generally accessible locations in all workplaces where the members of such organizations are employed. Provisions shall be made for separate bulletin boards for each employee representative organization. The cost of such bulletin boards will be assumed by the requesting employee or the employee's representative organization. Such boards shall be used exclusively by the employee representative organization and for organization purposes only.


WVC 29 - 6 - 27 §29-6-27. Leave donation program.
The division of personnel after consultation with other state agencies shall establish a program under which annual leave accrued or accumulated by an employee of an agency may, if voluntarily agreed to by the employee, be transferred to the annual leave account of another designated employee if the other employee requires additional leave because of a medical emergency. The annual leave program shall be established by legislative rule pursuant to the provisions of chapter twenty-nine-a of this code. The division of personnel shall file such legislative rule no later than the fifteenth day of July, one thousand nine hundred ninety-five. The division shall prepare an annual status report to be presented to the joint committee on government and finance no later than the fifth day of January each year. A "medical emergency" means a medical condition of an employee or a family member of the employee that is likely to require the prolonged absence of the employee from duty and which will result in a substantial loss of income to the employee because of the unavailability of paid leave. As used in this section, "employee" includes employees in the classified and classified-exempt service and employees exempt from coverage who are under this article entitled to annual leave as a benefit of employment: Provided, That none of the leave so transferred may be used to qualify for or add to service for any retirement system administered by the state of West Virginia.


WVC 29 - 6 - 28 §29-6-28. Leave time for organ donation.
(a) A full-time state employee shall receive up to one hundred twenty hours of leave with pay during each calendar year to use during those hours when the employee is absent from work because of the employee's donation of any portion of an adult liver or because of the employee's donation of an adult kidney.

(b) A full-time state employee shall receive up to fifty-six hours of leave with pay during each calendar year to use during those hours when the employee is absent from work because of the employee's donation of adult bone marrow.

(c) An appointing authority shall compensate a full-time state employee who uses leave granted under this section at the employee's regular rate of pay for those regular work hours during which the employee is absent from work.

(d) The Director of Personnel shall provide information about this section to full-time employees.

(e) The Legislature hereby encourages political subdivisions and private employers in this state to grant their full-time employees paid leave similar to the paid leave granted to full-time state employees under this section.


WVC 29 - 6 A- ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.


WVC 29 - 6 A- 1 §§29-6A-1 to 29-6A-12.
Repealed.

Acts, 2007 Reg. Sess., Ch. 207.


WVC 29 - 7 - ARTICLE 7. POET LAUREATE.


WVC 29 - 7 - 1 §29-7-1. Appointment; qualifications; salary.

There shall be a poet laureate of West Virginia, who shall be appointed by, and serve during the will and pleasure of the governor. No person shall be eligible to such appointment who is not a resident of this state, and who has not written and published poems of recognized merit. The poet laureate shall receive an annual salary of two thousand dollars, payable in equal quarterly installments.


WVC 29 - 8 - ARTICLE 8. BLENNERHASSETT ISLAND HISTORICAL STATE PARK COMMISSION.


WVC 29 - 8 - 1 §29-8-1. Legislative findings.

The Legislature hereby finds and declares that:

(1) Blennerhassett Island, situate in the Ohio River near the city of Parkersburg, is a significant historical, natural and archaeological resource of importance to this state and the nation;

(2) A well-planned and executed program for the development of educational, cultural and recreational attractions related to events known and believed to have occurred on and near scenic Blennerhassett Island will be of great benefit to all the people of this state and constitutes a most worthy public undertaking; and

(3) The primary responsibility for the planning and execution of such a program rests upon the state of West Virginia, while the secondary responsibility for development rests upon private and other public resources.


WVC 29 - 8 - 2 §29-8-2. Blennerhassett Island historical state park commission established; members; terms; meeting; quorum; compensation; expenses.
(a) There is within the Division of Natural Resources the Blennerhassett Island historical state park commission. All assets, real and personal property, debts, liabilities, duties, powers and authority are the property of the division of natural resources. The Blennerhassett Island historical state park commission is maintained as an advisory commission as hereinafter provided. The commission is composed of ten members who must be citizens and residents of this state, appointed by the Governor for terms of four years, by and with the advice and consent of the Senate: Provided, That the terms of all members previously appointed to the Blennerhassett Island historical state park commission prior to any amendment and reenactment of this section shall continue for the periods originally specified and no member serving as of the effective date of the amendment and reenactment need be reappointed.

(b) Each member must be qualified to carry out the functions of the commission under this article by reason of his or her special interest, training, education or experience.

No person may be eligible to appointment as a member who is an officer or member of any political party executive committee; or the holder of any other public office or public employment under the United States government or the government of this state or a political subdivision of this state. Not more than six members may belong to the same political party.

(c) The commission shall elect a chairman from among its members on the second Monday in September of each year.

(d) All members are eligible for reappointment once by the Governor. A member shall, unless sooner removed, continue to serve until his or her term expires and his or her successor has been appointed and has qualified. A vacancy caused by the death, resignation or removal of a member prior to the expiration of his or her term shall be filled only for the remainder of term.

(e) For the purpose of carrying out its powers, duties and responsibilities under this article, six members of the commission constitute a quorum for the transaction of business. Each member is entitled to one vote. The commission shall meet at a time and place designated by the chairman at least four times each fiscal year. Additional meetings may be held when called by the chairman or when requested by five members of the commission or by the Governor. All meetings shall comply with the provisions of article nine-a, chapter six of this code. Each member shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of his or her duties under this article.

(f) The commission shall advise the Division of Natural Resources in all matters relating to the development, establishment and maintenance of the Blennerhassett Island historical state park.

(g) All employee positions in the former Blennerhassett Island historical state park commission transferred to the Division of Commerce by a previous amendment and reenactment of this section are continued in the classified service of the civil service system pursuant to article six of this chapter. Any person included in the classified service by the provisions of this section who is employed in any of these positions as of the effective date of any amendment and reenactment of this section shall not be required to take and pass qualifying or competitive examinations upon or as a condition to being added to the classified service: Provided, That no person included in the classified service by the provisions of this section who is employed in any of these positions as of the effective date of any amendment and reenactment of this section, be thereafter severed, removed or terminated from such employment prior to his or her entry into the classified service except for cause as if the person had been in the classified service when severed, removed or terminated.

(h) Notwithstanding any provision of this code to the contrary, the Division of Natural Resources is vested with exclusive regulatory authority over watercraft transport of visitors to the Blennerhassett Island portion of the Blennerhassett Island historical state park and the watercraft transport of these visitors is not subject to the provisions of article eighteen, chapter seventeen of this code.

(i) Notwithstanding the provisions of section fifty-eight, article two, chapter twenty of this code, the Natural Resources Commission shall promulgate rules pursuant to the provisions of section seventeen, article one, chapter twenty and section three, article one, chapter twenty-nine-a of this code to permit and regulate the hunting of white-tailed deer at Blennerhassett Island historical state park.


WVC 29 - 8 - 3 §29-8-3. General powers of division of commerce with respect to the Blennerhassett Island historical state park.

The administrator of the division of commerce, with respect to developing and maintaining Blennerhassett Island historical state park, may exercise all powers and duties granted to him and his predecessor in respect to the development and operation of other state parks, and in addition, is specifically authorized to:

(1) Establish and maintain an office in the county of Wood;

(2) Exercise his powers in the state of Ohio to the extent permitted by the laws of the state of Ohio;

(3) Enter into any agreement with the state of Ohio or any person, firm or corporation therein for the provision of electricity, water, sewer and such similar services to Blennerhassett Island as are necessary;

(4) Own or operate, or both, individually or in conjunction with any other public agency or any private person, firm or corporation, such facilities and equipment as he considers necessary or convenient for the implementation of his duties under this article. Without limiting the generality of the foregoing, such facilities and equipment may include boats, docks, an amphitheatre, parking facilities, the reconstructed Blennerhassett mansion and other buildings; and

(5) Promulgate rules and regulations, in accordance with the provisions of chapter twenty-nine-a of this code, to implement and make effective the powers and duties vested in him by the provisions of this article and take such other steps as may, in his discretion, be necessary or expedient for the proper and effective development of Blennerhassett Island and related locations in the county of Wood into a major educational, cultural and recreational attraction.


WVC 29 - 8 - 4 §29-8-4. Duties of division of commerce with respect to the development of Blennerhassett Island.

Within the limit of funds available from this state, the United States and any other source, whether public or private, the administrator shall:

(1) Plan and execute a program for the development of educational, cultural and recreational attractions related to events known or believed to have occurred on and near Blennerhassett Island; and

(2) Plan and execute a program for the development of Blennerhassett island and related locations in the county of Wood so as to preserve and enhance the island and related locations as a significant historical, natural and archaeological resource of importance to this state and the nation.

In carrying out his duties under subdivisions (1) and (2) of this section, he shall, as near as practicable, adhere to the recommendations and plans for development contained in the documents prepared for the Blennerhassett historical commission, submitted to the Blennerhassett historical park commission on the eighteenth day of February, one thousand nine hundred seventy-five, and titled as follows: (a) Summary report for the development of Blennerhassett Island, (b) physical master plan, (c) interpretive master plan, (d) environmental impact and (e) market and economic impact.


WVC 29 - 8 - 5 §29-8-5. Cooperation of state agencies and local government with Blennerhassett historical state park commission and division of commerce; powers of local government with respect to development.

(a) All other state and local governmental personnel and agencies shall cooperate to the fullest possible extent with the commission and the division to accomplish the proper and effective development of Blennerhassett Island and related locations in the county of Wood into a major educational, cultural and recreational attraction.

(b) The county of Wood, the city of Parkersburg, any other municipality in the county and any board, commission, authority, agency or other office created under authority thereof may, in its discretion, engage in any activity or undertaking designed to assist the commission and the division in the proper and effective development of Blennerhassett Island and related locations in the county of Wood into a major educational, cultural and recreational attraction.


WVC 29 - 8 - 6 §29-8-6.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.


WVC 29 - 8 - 7 §29-8-7.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.


WVC 29 - 8 - 8 §29-8-8.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.


WVC 29 - 8 - 9 §29-8-9.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.


WVC 29 - 8 - 10 §29-8-10.

Repealed.

Acts, 1989 Reg. Sess., Ch. 20.


WVC 29 - 9 - ARTICLE 9. INDUSTRIAL AND PUBLICITY COMMISSION.


WVC 29 - 9 - 1 §§29-9-1 to 29-9-4.

Repealed.

Acts, 1961 Reg. Sess., Ch. 131.


WVC 29 - 10 - ARTICLE 10. STATE PLANNING BOARD.


WVC 29 - 10 - 1 §§29-10-1 to 29-10-11.

Repealed.

Acts, 1959 Reg. Sess., Ch. 50.


WVC 29 - 11 - ARTICLE 11. SURPLUS PROPERTY AGENCY.


WVC 29 - 11 - 1 §§29-11-1, 29-11-2.

Repealed.

Acts, 1961 Reg. Sess., Ch. 132.


WVC 29 - 12 - ARTICLE 12. STATE INSURANCE.


WVC 29 - 12 - 1 §29-12-1. Intent and objects.
Recognition is given to the fact that the state of West Virginia owns extensive properties of varied types and descriptions representing the investment of vast sums of money; that the state and its officials, agents and employees engage in many governmental activities and services and incur and undertake numerous governmental responsibilities and obligations; that such properties are subject to losses, damage, destruction, risks and hazards and such activities and responsibilities are subject to liabilities which can and should be covered by a sound and adequate insurance program; and that good business and insurance practices and principles necessitate the centralization of responsibility for the purchase, control and supervision of insurance coverage on all state properties, activities and responsibilities and the cooperation and coordination of all state officials, departments and employees in the development and success of such centralized state insurance program. Wherefore, in order to accomplish these desired ends and objectives, the provisions of this article are hereby enacted into law in response to manifest needs and requirements therefor and in the interest of the establishment and development of an adequate, economical and sound state insurance and bonding service on all state property, activities and responsibilities.


WVC 29 - 12 - 2 §29-12-2. Definitions.
As used in this article, unless the context otherwise clearly requires:

(a) "Board" means the state board of risk and insurance management.

(b) "Company" means and includes corporations, associations, partnerships and individuals.

(c) "Insurance" means all forms of insurance and bonding services available for protection and indemnification of the state and its officials, employees, properties, activities and responsibilities against loss or damage or liability, including fire, marine, casualty, and surety insurance.

(d) "Insurance company" means all insurers or insurance carriers, including, but not limited to, stock insurance companies, mutual insurance companies, reciprocal and interinsurance exchanges, and all other types of insurers and insurance carriers, including life, accident, health, fidelity, indemnity, casualty, hospitalization and other types and kinds of insurance companies, organizations and associations, but excepting and excluding workers' compensation coverage.

(e) "State property activities" and "state responsibilities" means and includes all operations, boards, commissions, works, projects and functions of the state, its properties, officials, agents and employees which, within the scope and in the course of governmental employment, may be subject to liability, loss, damage, risks and hazards recognized to be and normally included within insurance and bond coverages.

(f) "State property" means all property belonging to the state of West Virginia and any boards or commissions thereof wherever situated and which is the subject of risk or reasonably considered to be subject to loss or damage or liability by any single occurrence of any event insured against.


WVC 29 - 12 - 3 §29-12-3. State board of risk and insurance management; creation, composition, qualifications, and compensation.
(a) (1) The "state board of insurance of West Virginia" is hereby reestablished, reconstituted and continued as the state board of risk and insurance management. The board shall be composed of five members. One member shall be the vice chancellor of health sciences of the West Virginia higher education policy commission. The remaining four members shall be appointed by the governor with the advice and consent of the Senate. One member shall be appointed by the governor from a list of three eligible persons submitted to the governor by the president of the Senate, and one member shall be appointed by the governor from a list of three eligible persons submitted to the governor by the speaker of the House of Delegates. Each member shall be a resident of West Virginia and shall have experience in one or more of the following areas: law, accounting, business, insurance or actuarial science.

(2) Initial appointment of the members other than the vice chancellor for health sciences shall be for the following terms:

One member shall be appointed for a term ending the thirtieth day of June, two thousand three;

One member shall be appointed for a term ending the thirtieth day of June, two thousand four;

One member shall be appointed for a term ending the thirtieth day of June, two thousand five; and

One member shall be appointed for a term ending the thirtieth day of June, two thousand six.

(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a term ending the thirtieth day of June of the fourth year following the year the preceding term expired. In the event a vacancy occurs it shall be filled by appointment for the unexpired term. A member whose term has expired shall continue in office until a successor has been duly appointed and qualified. No member of the board may be removed from office by the governor except for official misconduct, incompetency, neglect of duty, or gross immorality.

(4) Members of the board appointed prior to the reenactment of this article during the sixth extraordinary session of the Legislature, two thousand one, shall serve until the fifteenth day of December two thousand one.

(b) The insurance commissioner of West Virginia shall serve as secretary of the board without vote and shall make available to the board the information, facilities and services of the office of the state insurance commissioner.

(c) The members of the board shall receive from the executive director of the board the same compensation authorized by law for members of the Legislature for the interim duties for each day, or portion thereof, the member is engaged in the discharge of official duties. All board members shall be reimbursed for their actual and necessary expenses incurred in the discharge of official duties, except that mileage shall be reimbursed at the same rate as that authorized for members of the Legislature.

(d) Notwithstanding any provision of this section to the contrary, the board is subject to the provisions of section twelve of this article.


WVC 29 - 12 - 4 §29-12-4. Organization, meetings, records and reports of board.

The board shall select one of its members as chairman and shall meet in the office of the insurance commissioner upon call of the chairman. The board shall keep records of all of its proceedings which shall be public and open to inspection, shall adopt a seal and shall exercise and perform the duties prescribed by this article.

The board shall report in writing to the governor, legislative auditor and budget director on or before the thirty-first day of August of each year. Such report shall contain a summary of the board's proceedings during the preceding fiscal year including a detailed and itemized statement and summary of all state insurance procured by the board during such fiscal year.


WVC 29 - 12 - 5 §29-12-5. Powers and duties of board.
(a)(1) The board has, without limitation and in its discretion as it seems necessary for the benefit of the insurance program, general supervision and control over the insurance of state property, activities and responsibilities, including:

(A) The acquisition and cancellation of state insurance;

(B) Determination of the kind or kinds of coverage;

(C) Determination of the amount or limits for each kind of coverage;

(D) Determination of the conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage;

(E) Inspections or examinations relating to insurance coverage of state property, activities and responsibilities;

(F) Reinsurance; and

(G) Any and all matters, factors and considerations entering into negotiations for advantageous rates on and coverage of such state property, activities and responsibilities.

(2) The board shall endeavor to secure reasonably broad protection against loss, damage or liability to state property and on account of state activities and responsibilities by proper, adequate, available and affordable insurance coverage and through the introduction and employment of sound and accepted principles of insurance, methods of protection and principles of loss control and risk.

(3) The board is not required to provide insurance for every state property, activity or responsibility.

(4) Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits: Provided, That nothing herein shall bar a state agency or state instrumentality from relying on the constitutional immunity granted the State of West Virginia against claims or suits arising from or out of any state property, activity or responsibility not covered by a policy or policies of insurance: Provided, however, That nothing herein shall bar the insurer of political subdivisions from relying upon any statutory immunity granted such political subdivisions against claims or suits.

(5) The board shall make a complete survey of all presently owned and subsequently acquired state property subject to insurance coverage by any form of insurance, which survey shall include and reflect inspections, appraisals, exposures, fire hazards, construction and any other objectives or factors affecting or which might affect the insurance protection and coverage required.

(6) The board shall keep itself currently informed on new and continuing state activities and responsibilities within the insurance coverage herein contemplated. The board shall work closely in cooperation with the State Fire Marshal's office in applying the rules of that office insofar as the appropriations and other factors peculiar to state property will permit.

(7) The board may negotiate and effect settlement of any and all insurance claims arising on or incident to losses of and damages to covered state properties, activities and responsibilities hereunder and shall have authority to execute and deliver proper releases of all such claims when settled. The board may adopt rules and procedures for handling, negotiating and settlement of all such claims. Any discussion or consideration of the financial or personal information of an insured 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.

(8) The board may employ an executive director and such other employees, including legal counsel, as may be necessary to carry out its duties. The executive director shall receive an annual salary as provided in section two-a, article seven, chapter six of this code. The legal counsel may represent the board before any judicial or administrative tribunal and perform such other duties as may be requested by the board.

(9) The board may enter into any contracts necessary to the execution of the powers granted to it by this article or to further the intent of this article.

(10) The board may make rules governing its functions and operations and the procurement of state insurance. Except where otherwise provided by statute, rules of the board are subject to the provisions of article three, chapter twenty-nine-a of this code.

(11) The funds received by the board, including, but not limited to, state agency premiums, mine subsidence premiums and political subdivision premiums, shall be deposited with the West Virginia Investment Management Board with the interest income and returns on investment a proper credit to such property insurance trust fund or liability insurance trust fund as applicable.

(b) (1) Definitions. -- The following words and phrases when used in this subsection, for the purposes of this subsection, have the meanings respectively ascribed to them in this subsection;

(A) "Political subdivision" has the same meaning as in section three, article twelve-a of this chapter;

(B) "Charitable" or "public service organization" means any hospital in this state which has been certified as a critical access hospital by the federal Centers for Medicare and Medicaid upon the designation of the state Office of Rural Health Policy, the Office of Community and Rural Health Services, the Bureau for Public Health or the Department of Health and Human Resources and any bona fide, not-for-profit, tax-exempt, benevolent, educational, philanthropic, humane, patriotic, civic, religious, eleemosynary, incorporated or unincorporated association or organization or a rescue unit or other similar volunteer community service organization or association, but does not include any nonprofit association or organization, whether incorporated or not, which is organized primarily for the purposes of influencing legislation or supporting or promoting the campaign of any candidate for public office; and

(C) "Emergency medical service agency" has the same meaning as in section three, article four-c, chapter sixteen of this code.

(2) If requested by a political subdivision, a charitable or public service organization or an emergency medical services agency, the board may, but is not required to, provide property and liability insurance to insure the property, activities and responsibilities of the political subdivision, charitable or public service organization or emergency medical services agency. The board may enter into any contract necessary to the execution of the powers granted by this article or to further the intent of this article.

(A) Property insurance provided by the board pursuant to this subsection may also include insurance on property leased to or loaned to the political subdivision, a charitable or public service organization or an emergency medical services agency which is required to be insured under a written agreement.

(B) The cost of insurance, as determined by the board, shall be paid by the political subdivision, the charitable or public service organization or the emergency medical services agency and may include administrative expenses. For purposes of this section, if an emergency medical services agency is a for-profit entity, its claims history may not adversely affect other participants' rates in the same class.

(c)(1) The board has general supervision and control over the optional medical liability insurance programs providing coverage to health care providers as authorized by the provisions of article twelve-b of this chapter. The board is hereby granted and may exercise all powers necessary or appropriate to carry out and effectuate the purposes of this article.

(2) The board shall:

(A) Administer the preferred medical liability program and the high risk medical liability program and exercise and perform other powers, duties and functions specified in this article;

(B) Obtain and implement, at least annually, from an independent outside source, such as a medical liability actuary or a rating organization experienced with the medical liability line of insurance, written rating plans for the preferred medical liability program and high-risk medical liability program on which premiums shall be based;

(C) Prepare and annually review written underwriting criteria for the preferred medical liability program and the high-risk medical liability program. The board may utilize review panels, including, but not limited to, the same specialty review panels to assist in establishing criteria;

(D) Prepare and publish, before each regular session of the Legislature, separate summaries for the preferred medical liability program and high-risk medical liability program activity during the preceding fiscal year, each summary to be included in the Board of Risk and Insurance Management audited financial statements as "other financial information" and which shall include a balance sheet, income statement and cash flow statement, an actuarial opinion addressing adequacy of reserves, the highest and lowest premiums assessed, the number of claims filed with the program by provider type, the number of judgments and amounts paid from the program, the number of settlements and amounts paid from the program and the number of dismissals without payment;

(E) Determine and annually review the claims history debit or surcharge for the high-risk medical liability program;

(F) Determine and annually review the criteria for transfer from the preferred medical liability program to the high-risk medical liability program;

(G) Determine and annually review the role of independent agents, the amount of commission, if any, to be paid therefor and agent appointment criteria;

(H) Study and annually evaluate the operation of the preferred medical liability program and the high-risk medical liability program and make recommendations to the Legislature, as may be appropriate, to ensure their viability, including, but not limited to, recommendations for civil justice reform with an associated cost-benefit analysis, recommendations on the feasibility and desirability of a plan which would require all health care providers in the state to participate with an associated cost-benefit analysis, recommendations on additional funding of other state-run insurance plans with an associated cost-benefit analysis and recommendations on the desirability of ceasing to offer a state plan with an associated analysis of a potential transfer to the private sector with a cost-benefit analysis, including impact on premiums;

(I) Establish a five-year financial plan to ensure an adequate premium base to cover the long-tail nature of the claims-made coverage provided by the preferred medical liability program and the high-risk medical liability program. The plan shall be designed to meet the program's estimated total financial requirements, taking into account all revenues projected to be made available to the program and apportioning necessary costs equitably among participating classes of health care providers. For these purposes, the board shall:

(i) Retain the services of an impartial, professional actuary, with demonstrated experience in analysis of large group malpractice plans, to estimate the total financial requirements of the program for each fiscal year and to review and render written professional opinions as to financial plans proposed by the board. The actuary shall also assist in the development of alternative financing options and perform any other services requested by the board or the executive director. All reasonable fees and expenses for actuarial services shall be paid by the board. Any financial plan or modifications to a financial plan approved or proposed by the board pursuant to this section shall be submitted to and reviewed by the actuary and may not be finally approved and submitted to the governor and to the Legislature without the actuary's written professional opinion that the plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs, including incurred but not reported claims, for the fiscal year for which the plan is proposed. The actuary's opinion for any fiscal year shall include a requirement for establishment of a reserve fund;

(ii) Submit its final, approved five-year financial plan, after obtaining the necessary actuary's opinion, to the governor and to the Legislature no later than the first day of January preceding the fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the executive director on the first day of July of the fiscal year. In addition to each final, approved financial plan required under this section, the board shall also simultaneously submit an audited financial statement based on generally accepted accounting practices (GAAP) and which shall include allowances for incurred but not reported claims: Provided, That the financial statement and the accrual-based financial plan restatement shall not affect the approved financial plan. The provisions of chapter twenty-nine-a of this code shall not apply to the preparation, approval and implementation of the financial plans required by this section;

(iii) Submit to the governor and the Legislature a prospective five-year financial plan beginning on the first day of January, two thousand three, and every year thereafter, for the programs established by the provisions of article twelve-b of this chapter. Factors that the board shall consider include, but shall not be limited to, the trends for the program and the industry; claims history, number and category of participants in each program; settlements and claims payments; and judicial results;

(iv) Obtain annually certification from participants that they have made a diligent search for comparable coverage in the voluntary insurance market and have been unable to obtain the same;

(J) Meet on at least a quarterly basis to review implementation of its current financial plan in light of the actual experience of the medical liability programs established in article twelve-b of this chapter. The board shall review actual costs incurred, any revised cost estimates provided by the actuary, expenditures and any other factors affecting the fiscal stability of the plan and may make any additional modifications to the plan necessary to ensure that the total financial requirements of these programs for the current fiscal year are met;

(K) To analyze the benefit of and necessity for excess verdict liability coverage;

(L) Consider purchasing reinsurance, in the amounts as it may, from time to time, determine is appropriate, and the cost thereof shall be considered to be an operating expense of the board;

(M) Make available to participants optional extended reporting coverage or tail coverage: Provided, That, at least five working days prior to offering such coverage to a participant or participants, the board shall notify the President of the Senate and the Speaker of the House of Delegates in writing of its intention to do so and such notice shall include the terms and conditions of the coverage proposed;

(N) Review and approve, reject or modify rules that are proposed by the executive director to implement, clarify or explain administration of the preferred medical liability program and the high-risk medical liability program. Notwithstanding any provisions in this code to the contrary, rules promulgated pursuant to this paragraph are not subject to the provisions of sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The board shall comply with the remaining provisions of article three and shall hold hearings or receive public comments before promulgating any proposed rule filed with the Secretary of State: Provided, That the initial rules proposed by the executive director and promulgated by the board shall become effective upon approval by the board notwithstanding any provision of this code;

(O) Enter into settlements and structured settlement agreements whenever appropriate. The policy may not require as a condition precedent to settlement or compromise of any claim the consent or acquiescence of the policyholder. The board may own or assign any annuity purchased by the board to a company licensed to do business in the state;

(P) Refuse to provide insurance coverage for individual physicians whose prior loss experience or current professional training and capability are such that the physician represents an unacceptable risk of loss if coverage is provided;

(Q) Terminate coverage for nonpayment of premiums upon written notice of the termination forwarded to the health care provider not less than thirty days prior to termination of coverage;

(R) Assign coverage or transfer insurance obligations and/or risks of existing or in-force contracts of insurance to a third-party medical professional liability insurance carrier with the comparable coverage conditions as determined by the board. Any transfer of obligation or risk shall effect a novation of the transferred contract of insurance and if the terms of the assumption reinsurance agreement extinguish all liability of the board and the State of West Virginia, such extinguishment shall be absolute as to any and all parties; and

(S) Meet and consult with and consider recommendations from the Medical Malpractice Advisory Panel established by the provisions of article twelve-b of this chapter.

(d) If, after the first day of September, two thousand two, the board has assigned coverages or transferred all insurance obligations and/or risks of existing or in-force contracts of insurance to a third-party medical professional liability insurance carrier, and the board otherwise has no covered participants, then the board shall not thereafter offer or provide professional liability insurance to any health care provider pursuant to the provisions of subsection (c) of this section or the provisions of article twelve-b of this chapter unless the Legislature adopts a concurrent resolution authorizing the board to reestablish medical liability insurance programs.


WVC 29 - 12 - 5 A §29-12-5a. Liability insurance for county boards of education, their employees and members, the county superintendent of schools, and for employees and officers of the State Department of Corrections.
(a) In accordance with the provisions of this article, the state Board of Risk and Insurance Management shall provide appropriate professional or other liability insurance for all county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools and school board members and for all employees and officers of the State Department of Corrections: Provided, That the Board of Risk and Insurance Management is not required to provide insurance for every property, activity or responsibility of county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools and school board members and for all employees and officers of the State Department of Corrections.

(b) Insurance provided by the Board of Risk and Insurance Management pursuant to the provisions of subsection (a) of this section shall cover claims, demands, actions, suits or judgments by reason of alleged negligence or other acts resulting in bodily injury or property damage to any person within or without any school building or correctional institution if, at the time of the alleged injury, the teacher, supervisor, administrator, service personnel employee, county superintendent, school board member, or employee or officer of the Department of Corrections was acting in the discharge of his or her duties, within the scope of his or her office, position or employment, under the direction of the Board of Education or Commissioner of Corrections or in an official capacity as a county superintendent or as a school board member or as Commissioner of Corrections.

(c) Insurance coverage provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall be in an amount to be determined by the state Board of Risk and Insurance Management, but in no event less than one million dollars for each occurrence. In addition, each county board of education shall purchase, through the Board of Risk and Insurance Management, excess coverage of at least five million dollars for each occurrence. The cost of this excess coverage will be paid by the respective county boards of education. Any insurance purchased under this section shall be obtained from a company licensed to do business in this state.

(d) The insurance policy provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall include comprehensive coverage, personal injury coverage, malpractice coverage, corporal punishment coverage, legal liability coverage as well as a provision for the payment of the cost of attorney's fees in connection with any claim, demand, action, suit or judgment arising from such alleged negligence or other act resulting in bodily injury under the conditions specified in this section.

(e) The county superintendent and other school personnel shall be defended by the county board or an insurer in the case of suit, unless the act or omission shall not have been within the course or scope of employment or official responsibility or was motivated by malicious or criminal intent.


WVC 29 - 12 - 5 B §29-12-5b. Transit insurance.

In accordance with the terms and provisions of this article the state board of risk and management shall provide appropriate aid and assistance to the transit authorities in this state in the procurement of fleet liability insurance for all vehicles operated by any such authorities and any and all expense associated with the procurement of purchase of said insurance coverage shall be borne by the transit authorities.


WVC 29 - 12 - 5 C §29-12-5c.
Repealed.

Acts, 2002 Reg. Sess., Ch. 170.
WVC 29 - 12 - 6 §29-12-6. Reports to be furnished board by state officers and departments; state records.
(a) It shall be the duty of every officer, department and employee of the state having custody or control of any state property, activities or responsibilities, as defined in section two of this article, to make a written report thereof to the board, on forms prepared and prescribed by it, briefly describing said property, activities or responsibilities, showing the nature, location and estimated fair market value of potential liability thereof and stating whether such property, activities or responsibilities are covered by insurance and, if insured, the nature, amount and contract expiration date of such insurance and the name and address of the insuring company or companies. Such reports shall be made annually on or before the first day of May and separate reports shall be made on newly acquired state property from time to time within thirty days next following the acquisition thereof. When any such insured state property is sold, destroyed or otherwise disposed of, the officer, department or employee of the state having had the custody or control thereof shall make a written report of such sale, destruction or other disposition of such property to the board within thirty days next following the date of sale, destruction or other disposition thereof.

(b) The board shall assemble and organize all pertinent information and data received and obtained by it on new and continuing state property, activities and responsibilities within the insurance coverage herein contemplated and shall compile and currently maintain a summary record thereon, in such form and detail as may be found practicable, as basis for insurance services on all such state property, activities and responsibilities.


WVC 29 - 12 - 7 §29-12-7. Placement of insurance on state property, activities and responsibilities.
(a) No officer, department or employee of the state having control or custody of any state property, or being in charge of any state activities, or being charged with any state responsibilities as herein contemplated, shall pay out any state money for the purpose of insurance against loss, damage or liability to any such state property or on account of any such state activity or responsibility or incur any obligation or indebtedness against the state for such insurance, except (1) upon the board's prior approval and placement of such insurance coverage and (2) its subsequent approval of invoices and charges therefor.

(b) All state insurance shall be placed only with solvent insurance companies licensed by the insurance commissioner to transact insurance in West Virginia.

(c) All state insurance shall be placed only through agents duly licensed by the insurance commissioner of West Virginia and no more than five percent of the total premium volume of state insurance shall be placed through any one agent or agency. For the purpose of this paragraph, agent or agency shall include all employees, relatives, partners or affiliates out of the agency with whom such insurance is placed. In addition thereto no more than fifteen percent of the total premium volume of state insurance shall be placed in agencies in any one county.

(d) No insurance shall be placed with any member of the board, the state insurance commissioner, official, officer or employee of the state of West Virginia, member of the Legislature, member or officer of any state or county political party executive committee, nor with the spouse, parent or child of any such person, nor with any corporation, any stockholder of which falls within the classes herein enumerated.


WVC 29 - 12 - 8 §29-12-8. Powers, duties, etc., of department of purchases pertaining to state insurance transferred to board.
On the effective date of this article, all powers, duties and functions vested in the department of purchases relating to insurance on state properties, activities and responsibilities and all records and equipment relating thereto shall be transferred by the department of purchases to the state board of insurance.


WVC 29 - 12 - 9 §29-12-9. Penalties for violation of article.
Any person placing or aiding, abetting, or conspiring to place state insurance in violation of any provision of this article shall be guilty of a misdemeanor and upon conviction thereof shall be fined not to exceed one thousand dollars or imprisoned for a period not to exceed six months, or may be punished by both such fine and imprisonment.


WVC 29 - 12 - 10 §29-12-10. Repeal of inconsistent laws.
All laws or parts of laws inconsistent with the provisions of this article are hereby repealed, except in cases where the plain meaning and context hereof otherwise provide for coordinate interpretation and application of the provision of this article with any other laws.


WVC 29 - 12 - 11 §29-12-11. Interpretation and purpose; constitutionality.
The provisions of this article are considered remedial and shall be liberally construed and interpreted so as to effect and accomplish the general purposes and objectives hereof. In the event any part or provision of the article be held to be unconstitutional by any court of competent jurisdiction, such holding and decision of the court shall not affect the validity and constitutionality of the remaining parts and provisions of the article.


WVC 29 - 12 - 12 §29-12-12.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 12 - 13 §29-12-13. Premium tax liability.
Notwithstanding any other provision of this code to the contrary, the amount of any gross direct premiums attributable to a policy or contract of insurance entered into with the board of risk and insurance management shall be separately reported on the annual financial statement of the insurer. These gross direct premiums so reported may not be subject to the tax imposed on gross direct premiums pursuant to article three, chapter thirty-three of this code. The provisions of this section shall be effective upon passage and shall apply to any amount of premium tax owed and not yet paid upon the effective date of this section. When any spending unit makes payment to the board of risk and insurance management for payment of premiums attributable to a policy or contract of insurance after the effective date of this section, an amount equal to the amount of gross premium tax attributable to the amount of the premium shall be paid to the board: Provided, That these amounts shall be deposited in a special revenue account hereby created known as the "Premium Tax Savings Fund". Expenditures from the fund shall not be made from collections but shall only be made in accordance with appropriation by the Legislature.


WVC 29 - 12 - 14 §29-12-14. Promulgation of rules.
The board of risk and insurance management is authorized to propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, setting minimum contract terms for entities participating in insurance programs and mandatory waiting periods for reentry into insurance programs for entities which have terminated coverage through the board.


WVC 29 - 12 A- ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.


WVC 29 - 12 A- 1 §29-12A-1. Short title; purposes.
This article shall be known and may be cited as "The Governmental Tort Claims and Insurance Reform Act."

Its purposes are to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability.


WVC 29 - 12 A- 2 §29-12A-2. Legislative findings.
The Legislature finds and declares that the political subdivisions of this state are unable to procure adequate liability insurance coverage at a reasonable cost due to: The high cost in defending such claims, the risk of liability beyond the affordable coverage, and the inability of political subdivisions to raise sufficient revenues for the procurement of such coverage without reducing the quantity and quality of traditional governmental services. Therefore, it is necessary to establish certain immunities and limitations with regard to the liability of political subdivisions and their employees, to regulate the insurance industry providing liability insurance to them, and thereby permit such political subdivisions to provide necessary and needed governmental services to its citizens within the limits of their available revenues.


WVC 29 - 12 A- 3 §29-12A-3. Definitions.
As used in this article:

(a) "Employee" means an officer, agent, employee, or servant, whether compensated or not, whether full-time or not, who is authorized to act and is acting with the scope of his or her employment for a political subdivision."Employee" includes any elected or appointed official of a political subdivision."Employee" does not include an independent contractor of a political subdivision.

(b) "Municipality" means any incorporated city, town or village and all institutions, agencies or instrumentalities of a municipality.

(c) "Political subdivision" means any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalitites, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiciton is coextensive with one or more counties, cities or towns; a combined city- county health department created pursuant to article two, chapter sixteen of this code; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided, That hospitals of a political subdivision and their employees are expressly excluded from the provisions of this article.

(d) "Scope of employment" means performance by an employee acting in good faith within the duties of his or her office or employment or tasks lawfully assigned by a competent authority but does not include corruption or fraud.

(e) "State" means the state of West Virginia, including, but not limited to, the Legislature, the supreme court of appeals, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, colleges, and universities, institutions, and other instrumentalities of the state of West Virginia."State" does not include political subdivisions.


WVC 29 - 12 A- 4 §29-12A-4. Governmental and proprietary functions of political subdivisions; liability for damages.
(a) The distinction existing between governmental functions and proprietary functions of political subdivisions is not affected by the provisions of this article; however, the provisions of this article shall apply to both governmental and proprietary functions.

(b) (1) Except as provided in subsection (c) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function: Provided, That this article shall not restrict the availability of mandamus, injunction, prohibition, and other extraordinary remedies.

(2) Subject to statutory limitations upon their venue and jurisdiction, the circuit courts have jurisdiction to hear and determine civil actions governed by or brought pursuant to this article.

(c) Subject to sections five and six of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

(1) Except as otherwise provided in this article, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any vehicle by their employees when the employees are engaged within the scope of their employment and authority.

(2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.

(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, or free from nuisance, except that it is a full defense to such liability, when a bridge within a municipality is involved, that the municipality does not have the responsibility for maintain or inspecting the bridge.

(4) Political subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used by such political subdivisions, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility.

(5) In addition to the circumstances described in subsection (c)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a provision of this code. Liability shall not be construed to exist under another section of this code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.


WVC 29 - 12 A- 5 §29-12A-5. Immunities from liability.
(a) A political subdivision is immune from liability if a loss or claim results from:

(1) Legislative or quasi-legislative functions;

(2) Judicial, quasi-judicial or prosecutorial functions;

(3) Execution or enforcement of the lawful orders of any court;

(4) Adoption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;

(5) Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;

(6) Snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of a political subdivision;

(7) Natural conditions of unimproved property of the political subdivision;

(8) Assessment or collection of taxes lawfully imposed or special assessments, license or registration fees or other fees or charges imposed by law;

(9) Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;

(10) Inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety;

(11) Any claim covered by any worker's compensation law or any employer's liability law;

(12) Misrepresentation, if unintentional;

(13) Any court-ordered or administratively approved work release or treatment or rehabilitation program;

(14) Provision, equipping, lawful operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner;

(15) Any claim or action based on the theory of manufacturer's products liability or breach of warranty or merchantability or fitness for a specific purpose, either expressed or implied;

(16) The operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision; or

(17) The issuance of revenue bonds or the refusal to issue revenue bonds.

(b) An employee of a political subdivision is immune from liability unless one of the following applies;

(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;

(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or

(3) Liability is expressly imposed upon the employee by a provision of this code.

(c) The immunity conferred upon an employee by subsection (b) of this section does not affect or limit any liability of a political subdivision for an act or omission of the employee.


WVC 29 - 12 A- 6 §29-12A-6. Limitation of actions; specification of amount of damages not allowed.
(a) An action against a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function, except as provided in subsection (b) of this section, shall be brought within two years after the cause of action arose or after the injury, death or loss was discovered or reasonably should have been discovered, whichever last occurs or within any applicable shorter period of time for bringing the action provided by this code. This section applies to actions brought against political subdivisions by all persons, governmental entities, and the state.

(b) An action against a political subdivision to recover damages for injury, death, or loss to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years after the cause of action arose or after the injury, death of loss was discovered or reasonably should have been discovered, whichever last occurs, or prior to the minor's twelfth birthday, whichever provides the longer period.

(c) The periods of limitations set forth in this section shall be tolled for any period during which the political subdivision or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.

(d) In the complaint filed in a civil action against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of such political subdivision or employee, whether filed in an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, the complainant shall include a demand for a judgment for the damages that the judge in a nonjury trial or the jury in a jury trial finds that the complainant is entitled to be awarded, but shall not specify in the demand any monetary amount for damages sought.


WVC 29 - 12 A- 7 §29-12A-7. Punitive damages not allowed; limitation on noneconomic loss; joint and several liability.
Notwithstanding any other provisions of this code or rules of a court to the contrary, in an action against a political subdivision or its employee to recover damages for injury, death, or loss to persons or property for injury, death, or loss to persons or property caused by an act or omission of such political subdivision or employee:

(a) In any civil action involving a political subdivision or any of its employees as a party defendant, an award of punitive or exemplary damages against such political subdivision is prohibited.

(b) There shall not be any limitation on compensatory damages that represent the economic loss of the person who is awarded the damages. However, damages awarded that arise from the same cause of action, transaction or occurrence, or series of transactions or occurrences that represent noneconomic loss shall not exceed five hundred thousand dollars in favor of any one person. The limitation on damages that do not represent the economic loss of the person who is awarded the damages provided in this subsection does not apply to court costs that are awarded to a plaintiff or to interest on a judgment rendered in favor of a plaintiff in an action against a political subdivision or its employees.

(c) In the trial of an action covered by the provisions of this article involving multiple defendants, the jury shall be required to report its findings to the court on a form provided by the court which contains each of the possible verdicts as determined by the court.

(d) In every such action, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant who bears twenty-five percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all defendants who bear less than twenty-five percent of the negligence attributable to all defendants.

(e) Each defendant against whom a judgment of joint and several liability is entered in an action pursuant to subsection (d) of this section is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him. A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. The total amount of recovery for contribution is limited to a the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. No right of contribution exists against any defendant who entered into a good faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's findings as to total dollar amount awarded as damages.

(f) Where a right of contribution exists in an action pursuant to subsection (e) of this section, the findings of the court or jury as to the percentage of negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights of contribution.


WVC 29 - 12 A- 8 §29-12A-8. Suits.
Any person having a claim against a political subdivision within the scope of this article may sue such political subdivision for any appropriate relief including the award of money damages within the liability limitations established in section seven of this article.


WVC 29 - 12 A- 9 §29-12A-9. Settlement or defense of suit; effect of liability insurance.
(a) If a policy or contract of liability insurance covering a political subdivision or its employees is applicable, the terms of the policy govern the rights and obligations of the political subdivision and the insurer with respect to the investigation, settlement, payment and defense of suits against the political subdivision, or its employees, covered by the policy. The insurer may not enter into a settlement for an amount which exceeds the insurance coverage.

(b) A political subdivision, or its employees, are not liable for any costs, judgments or settlements paid through an applicable contract or policy of insurance.

(c) A political subdivision has the right of indemnity against the insurer issuing any applicable contract or policy of insurance to the monetary limit of the contract or policy of insurance.


WVC 29 - 12 A- 10 §29-12A-10. Enforcement of judgment.
(a) Real or personal property, and moneys, accounts, deposits, or investments of a political subdivision are not subject to execution, judicial sale, garnishment, or attachment to satisfy a judgment rendered against a political subdivision in a civil action to recover damages for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees.

(b) Such judgments shall be paid from funds of the political subdivisions that have been appropriated for that purpose. However, if sufficient funds are not currently appropriated for the payment of judgments, the fiscal officer of a political subdivision shall certify the amount of any unpaid judgments to the taxing authority of the political subdivision for inclusion in the next succeeding budget and annual appropriation measure and payment in the next succeeding fiscal year.

(c) If the judgment is obtained against a political subdivision that has procured a contract or policy of liability or indemnity insurance protection, the holder of the judgment may use the methods of collecting the judgment which are provided by the policy or contract or law to the extent of the limits of coverage provided.


WVC 29 - 12 A- 11 §29-12A-11. Defense and indemnification of employees; settlement.
(a) (1) Except as otherwise provided in this section, a political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action or proceeding to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of the employee if the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities. Amounts expended by a political subdivision in the defense of its employees shall be from funds appropriated for this purpose or pursuant to the contractual agreement between the insurer and the political subdivision. The duty to provide for the defense of an employee specified in this subsection does not apply in a civil action or proceeding that is commenced by or on behalf of a political subdivision.

(2) Except as otherwise provided in this section, a political subdivision shall indemnify and hold harmless an employee in the amount of any judgment that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to persons or property caused by an act or omission of such employee, if at the time of the act or omission the employee was acting in good faith and within the scope of his employment or official responsibilities.

(b) (1) A political subdivision may enter into a consent judgment or settlement and may secure releases from liability for itself or an employee, with respect to any claim for injury, death, or loss to persons or property caused by an act or omission of such political subdivision or employee.

(2) No action or appeal of any kind shall be brought by any person, including any employee or a taxpayer, with respect to the decision of a political subdivision pursuant to subsection (b)(1) of this section whether to enter into a consent judgment or settlement or to secure releases, or concerning the amount and circumstances of a consent judgment or settlement. Amounts expended for any settlement shall be from funds appropriated for this purpose or pursuant to the contractual agreement between the insurer and the political subdivision.

(c) If a political subdivision refuses to provide an employee with a defense in a civil action or proceeding as described in subsection (a)(1) of this section, the employee may file, in the circuit court of the county in which the political subdivision is located, an action seeking a determination as to the appropriateness of the refusal of the political subdivision to provide him or her with a defense under that subsection.


WVC 29 - 12 A- 12 §29-12A-12. Recovery of payments from employees.
A political subdivision has the right to recover from an employee for any claim or action under this article, or any other claim or action, any payments made by it for any judgment or settlement, or portion thereof, and costs or fees by or on behalf of an employee's defense if it is shown that the conduct or the employee which gave rise to the claim or action was outside the scope of his employment or if the employee fails to cooperate in good faith in the defense of the claim or action. A judgment or settlement in an action or claim under this article constitutes a complete bar to any action by a claimant against an employee whose conduct gave rise to the claim resulting in such judgment or settlement.


WVC 29 - 12 A- 13 §29-12A-13. Venue; parties; real party in interest; service of process.
(a) Actions against all political subdivisions within the scope of this article shall be brought in the county in which the situs of the political subdivision is located or in the county in which the cause of action arose.

(b) Suits instituted pursuant to the provisions of this article shall name as defendant the political subdivision against which liability is sought to be established. In no instance may an employee of a political subdivision acting within the scope of his employment be named as defendant.

(c) All actions filed against a political subdivision shall be filed in the name of the real party or parties in interest and in no event may any claim be presented or recovery be had under the right of subrogation.

(d) In suits against political subdivisions, the complaint and summons shall be served in the manner prescribed by law for the rules of civil procedure.


WVC 29 - 12 A- 14 §29-12A-14. Application of West Virginia laws and statutes and rules of procedure.
The laws and statutes of this state and the rules of civil procedure, as promulgated and adopted by the supreme court of appeals, insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this article, apply to and govern all actions brought under the provisions of this article.


WVC 29 - 12 A- 15 §29-12A-15. Exempt claim.
This article does not apply to any claim against any political subdivision or its employees arising before the effective date of this article. Any such claim may be presented and enforced to the same extent and subject to the same procedures and restrictions as if this article had not been adopted.


WVC 29 - 12 A- 16 §29-12A-16. Procurement of liability insurance and self-insurance.
(a) A political subdivision may use public funds to secure insurance with respect to its potential liability and that of its employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees, including insurance coverage procured through the State Board of Risk and Insurance Management. The insurance may be at the limits for the circumstances, and subject to the terms and conditions that are determined by the political subdivision in its discretion.

The insurance may be for the period that is set forth in specifications for competitive bids or, when competitive bidding is not required, for the period that is mutually agreed upon by the political subdivision and insurance company. The period does not have to be, but can be, limited to the fiscal cycle under which the political subdivision is funded and operates.

(b)(1) Regardless of whether a political subdivision procures a policy or policies of liability insurance pursuant to subsection (a) of this section or otherwise:

(A) Any political subdivision may establish and maintain a self-insurance program relative to its potential liability and that of its employees for damages in civil actions for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees; or

(B) Any group of two or more political subdivisions may establish and maintain a self-insurance pool relative to their collective potential liability and that of their collective employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees.

(2) Beginning July 1, 2010, any group of two or more political subdivisions may, upon approval of the Insurance Commissioner, establish and maintain a self-insurance pool to insure their workers' compensation risks: Provided, That political subdivisions may not make application to the Insurance Commissioner to operate a risk pool until rules promulgated pursuant to subsection (g) of this section regulating such programs have been made effective.

(3) If it so chooses, the political subdivision or group of political subdivisions may contract with any person, any licensed West Virginia insurance agent, other political subdivision, municipal association, county association or regional council of governments for purposes of the administration of the program or pool.

(c) Political subdivisions that have established self-insurance programs relative to their potential liability and that of their employees, as described in paragraph (A), subdivision (1), subsection (b) of this section, may mutually agree that their self-insurance programs may be jointly administered in a specified manner.

(d) The purchase of liability insurance, or the establishment and maintenance of a self-insurance program, by a political subdivision does not constitute a waiver of any immunity it may have pursuant to this article or any defense of the political subdivision or its employees.

(e) The authorization for political subdivisions to secure insurance and to establish and maintain self-insurance programs and pools, as set out in subsections (a) and (b) in this section, are in addition to any other authority to secure insurance or to establish and maintain self-insurance that is granted pursuant to this code or the Constitution of this state, and they are not in derogation of any other authorization.

(f) An insurance agent licensed in West Virginia is authorized to establish or write policies for a self-insurance program or pool for political subdivisions, pursuant to the provisions of this section.

(g) The Insurance Commissioner shall propose rules for legislative approval, pursuant to the provisions of chapter twenty-nine-a of this code, setting forth the criteria for establishing and maintaining self-insurance programs and pools for political subdivisions, and may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.


WVC 29 - 12 A- 17 §29-12A-17. Liability insurance rates; rate filings; cancellations; group insurance.
(a) Liability insurance coverage for political subdivisions in effect on the effective date of this article shall not be reduced without the written consent of the insured and the policy premiums for such coverage shall not be increased by more than ten percent per annum. Such coverage shall not be cancelled except for:

(1) Failure to make premium payments in accordance with the policy requirements;

(2) Fraud or substantial misrepresentation by the insured in the procurement of the policy; or

(3) Substantial increase in the risk of loss to which the insurer is exposed under the policy.

(b) Each casualty insurance rate filing relating to liability insurance for political subdivisions shall be accompanied by such information as the insurance commissioner requires to determine claims payouts, premium income, investment income, loss reserves, federal and state credits, administrative and operating expenses, profits, losses, and such other information deemed necessary by the commissioner to determine the profitability of such insurance business engaged in by the company. Based upon such information, the commissioner may approve or disapprove an increase in premiums charged to the political subdivisions for such coverage or may require that such premiums charged by decreased. The commissioner shall have authority to disapprove any casualty insurance rate filing which includes such coverage to political subdivisions for failure to provide the information prescribed herein.

(c) Any two or more political subdivisions shall have authority to form an organization or association for the purpose of purchasing casualty insurance on a group or pooling basis.

Any insurer licensed to transact casualty insurance in this state may issue group casualty insurance policies to any organization, association or pool which is organized and maintained under this section.

(d) The insurance commissioner shall promulgate legislative rules or regulations pursuant to chapter twenty-nine-a of this code setting forth guidelines relating to rate filings, rates and cancellations with respect to insurance companies transacting policies of casualty insurance with political subdivisions and relating to establishment of associations or pools for the purchase of group insurance and the setting of group rates.


WVC 29 - 12 A- 18 §29-12A-18. Applicability.

This article does not apply to, and shall not be construed to apply to, the following:

(a) Civil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability;

(b) Civil actions by an employee, or the collective bargaining representative of an employee, against his or her political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision;

(c) Civil actions by an employee of a political subdivision against the political subdivision relative to wages, hours, conditions, or other terms of his or her employment;

(d) Civil actions by sureties, and the rights of sureties, under fidelity or surety bonds;

(e) Civil claims based upon alleged violations of the constitution or statutes of the United States except that the provisions of section eleven of this article shall apply to such claims or related civil actions.


WVC 29 - 12 B- ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL LIABILITY INSURANCE AVAILABILITY ACT.


WVC 29 - 12 B- 1 §29-12B-1. Short title.
This article may be cited as the "West Virginia Health Care Provider Professional Liability Insurance Availability Act."


WVC 29 - 12 B- 2 §29-12B-2. Legislative findings.
The Legislature finds and declares that there is a need for the state of West Virginia to assist in making professional liability insurance available for certain necessary health care providers in West Virginia to assure that quality medical care is available for the citizens of the state.


WVC 29 - 12 B- 3 §29-12B-3. Definitions.
As used in this article, the following terms have the meanings set forth herein:

(a) "Board" means the state board of risk and insurance management.

(b) "Health care provider" means:

(1) A person licensed by the West Virginia board of medicine to practice medicine in this state;

(2) A person licensed by the West Virginia board of osteopathy to practice medicine in this state;

(3) A podiatrist licensed by the West Virginia board of medicine;

(4) An optometrist licensed by the West Virginia board of optometry;

(5) A pharmacist licensed by the West Virginia board of pharmacy;

(6) A registered nurse holding an advanced practice announcement from the West Virginia board of examiners for registered professional nurses;

(7) A physician's assistant licensed by either the West Virginia board of medicine or the West Virginia board of osteopathy;

(8) A dentist licensed by the West Virginia board of dental examiners;

(9) A physical therapist licensed by the West Virginia board of physical therapy;

(10) A chiropractor licensed by the West Virginia board of chiropractic;

(11) A professional limited liability company or medical corporation certified by the state board of medicine;

(12) An association, partnership or other entity organized for the purpose of rendering professional services by persons who are health care providers;

(13) A hospital, medical clinic, psychiatric hospital or other medical facility authorized by law to provide professional medical services; and

(14) Such other health care provider as the board may from time to time approve, and for whom an adequate rate can be established.

"Health care provider" does not include any provider of professional medical services that has medical malpractice insurance pursuant to article twelve of this chapter.

(b) "Sexual acts" means that sexual conduct which constitutes a criminal or tortious act under the laws of West Virginia.

(c) "Prior acts" coverage means coverage for claims arising out of the providing of medical services, including medical treatment, which are first reported to the board during the effective policy period, but which occurred on or after the retroactive date reported in the policy declarations.

(d) "High risk" means the probability of loss is greater than average based on criteria specified in this article and established by the board.

(e)"Retroactive date" means the date designated in the policy declarations, before which coverage is not applicable.

(f) "Tail coverage" or "extended reporting coverage" is coverage that protects the health care provider against all claims arising from professional services performed while the claims-made policy was in effect and included in the policy but reported after the termination of the policy.


WVC 29 - 12 B- 4 §29-12B-4. State medical malpractice advisory panel; creation, composition, duties and compensation.
(a) (1) There is hereby created, under the direction and control of the board, the medical malpractice advisory panel. The panel shall be composed of seven members appointed by the governor with the advice and consent of the Senate. Each member shall be a resident of West Virginia. No more than three members may reside in the same congressional district, no more than two members may reside in the same county, and no more than four members may belong to the same political party.

(2) Initial appointment of the members shall be for the following terms:

One member shall be appointed for a term ending the thirtieth day of June, two thousand two;

Two members shall be appointed for a term ending the thirtieth day of June, two thousand three;

Two members shall be appointed for a term ending the thirtieth day of June, two thousand four; and

Two members shall be appointed for a term ending the thirtieth day of June, two thousand five.

(3) Except for appointments to fill vacancies, each subsequent appointment shall be for a term ending the thirtieth day of June of the fourth year following the year the preceding term expired. In the event a vacancy occurs it shall be filled by appointment for the unexpired term. A member whose term has expired shall continue in office until a successor has been duly appointed and qualified. No member of the panel may be removed from office by the governor except for official misconduct, incompetency, neglect of duty, or gross immorality.

(4) The panel shall consist of the following:

(A) A physician licensed in this state by the state board of medicine recommended from a list of three candidates from a specialty area and three candidates from a non-specialty area submitted by the state medical association;

(B) A physician licensed by the state board of osteopathy recommended from a list of three candidates submitted by the state society of osteopathic medicine;

(C) A physician licensed by the state board of medicine from a specialty area recommended from the list of three candidates submitted by the West Virginia academy of family practitioners;

(D) A chief executive officer or chief financial officer of a hospital recommended from a list of three submitted by the state hospital association;

(E) One consumer or consumer representative;

(F) One person with training or experience in underwriting; and

(G) A person with training or experience in insurance industry management.

(b) The members of the panel shall receive from the executive director of the board the same compensation authorized by law for members of the Legislature for their interim duties for each day, or portion thereof, the member is engaged in the discharge of official duties. All panel members shall be reimbursed for their actual and necessary expenses incurred in the discharge of official duties, except that mileage shall be reimbursed at the same rate as that authorized for members of the Legislature.

(c) The panel shall advise the board with regard to those duties imposed on the board by the provisions of this article and the provisions of subsection (c), section five, article twelve of this chapter relating to medical professional liability insurance.


WVC 29 - 12 B- 5 §29-12B-5. Organization, meetings, records and reports of panel.
(a) The panel shall select one of its members as chairman and shall meet in the office of the board upon the call of the board. The panel shall keep records of all of its proceedings which shall be public and open to inspection: Provided, That any discussion or consideration of the financial or personal information of an insured may be held by the panel in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code. The panel shall exercise and perform the duties prescribed by this article.

(b) The panel shall report in writing to the board and the legislative auditor on or before the thirty-first day of August of each year. Such report shall contain a summary of the panel's proceedings during the preceding fiscal year.


WVC 29 - 12 B- 6 §29-12B-6. Health care provider professional liability insurance programs.
(a) There is hereby established through the board of risk and insurance management optional insurance for health care providers consisting of a preferred professional liability insurance program and a high risk professional liability insurance program.

(b) Each of the programs described in subsection (a) of this section shall provide claims-made coverage for any covered act or omission resulting in injury or death arising out of medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.

(c) Each of the programs described in subsection (a) of this section shall offer optional prior acts coverage from and after a retroactive date established by the policy declarations. The premium for prior acts coverage may be based upon a five-year maturity schedule depending on the years of prior acts exposure, as more specifically set forth in a written rating manual approved by the board.

(d) Each of the programs described in subsection (a) of this section shall further provide an option to purchase an extended reporting endorsement or tail coverage.

(e) Each of the programs described in subsection (a) of this section shall offer limits for each health care provider in the amount of one million dollars per claim, including repeated exposure to the same event or series of events, and all derivative claims, and three million dollars in the annual aggregate. Health care providers have the option to purchase higher limits of up to two million dollars per claim, including repeated exposure to the same event or series of events, and all derivative claims, and up to four million dollars in the annual aggregate. In addition, hospitals covered by the plan shall have available limits of three million dollars per claim, including repeated exposure to the same event or series of events, and all derivative claims, and five million dollars in the annual aggregate. Installment payment plans as established in the rating manual shall be available to all participants.

(f) Each of the programs described in subsection (a) of this section shall cover any act or omission resulting in injury or death arising out of medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code. The board shall exclude from coverage sexual acts as defined in subdivision (e), section three of this article, and shall have the authority to exclude other acts or omission from coverage.

(g) Each of the programs described in subsection (a) of this section shall apply to damages, except punitive damages, for medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.

(h) The board may, but is not required, to obtain excess verdict liability coverage for the programs described in subsection (a) of this section.

(i) Each of the programs shall be liable to the extent of the limits purchased by the health care provider as set forth in subsection (e) of this section. In the event that a claimant and a health care provider are willing to settle within those limits purchased by the health care provider, but the board refuses or declines to settle, and the ultimate verdict is in excess of the purchased limits, the board shall not be liable for the portion of the verdict in excess of the coverage provided in subsection (e) of this section unless the board acts in bad faith, with actual malice, in declining or refusing to settle: Provided, That if the board has in effect applicable excess verdict liability insurance, the health care provider shall not be required to prove that the board acted with actual malice in declining or refusing to settle in order to be indemnified for that portion of the verdict in excess of the limits of the purchased policy and within the limits of the excess liability coverage. Notwithstanding any provision of this code to the contrary, the board shall not be liable for any verdict in excess of the combined limit of the purchased policy and any applicable excess liability coverage unless the board acts in bad faith with actual malice.

(j) Rates for each of the programs described in subsection (a) of this section may not be excessive, inadequate or unfairly discriminatory: Provided, That the rates charged for the preferred professional liability insurance program shall not be less than the highest approved comparable base rate for a licensed carrier providing five percent of the malpractice insurance coverage in this state for the previous calendar year on file with the insurance commissioner: Provided, however, That if there is only one licensed carrier providing five percent or more of the malpractice insurance coverage in the state offering comparable coverage, the board shall have discretion to disregard the approved comparable base rate of the licensed carrier.

(k) The premiums for each of the programs described in subsection (a) of this section are subject to premium taxes imposed by article three, chapter thirty-three of this code.

(l) Nothing in this article shall be construed to preclude a health care provider from obtaining professional liability insurance coverage for claims in excess of the coverage made available by the provisions of this article.

(m) General liability coverage that may be required by a health care provider may be offered as determined by the board.

(n) The board may provide coverage for the run out of, and tail coverage for, any active policy issued pursuant to this article which is not transferred to the physician's mutual insurance company in accordance with section nine, article twenty-f, chapter thirty-three of this code. The board may permit such policy holders to finance, with interest, the tail coverage premium payments therefore, up to a maximum finance period of five years, on such terms as the board may set.


WVC 29 - 12 B- 7 §29-12B-7. Eligibility criteria for participation in health care provider professional liability insurance programs.
(a) Only those health care providers unable to obtain medical professional liability insurance because it is not available through the voluntary insurance market from insurers licensed to transact insurance in West Virginia at rates approved by the commissioner are eligible to obtain coverage pursuant to the provisions of this article: Provided, That any health care provider who can obtain medical professional liability insurance only pursuant to a "consent to" or "guide A" rate agreement is eligible to obtain coverage. Any health care provider who has medical professional liability insurance pursuant to the provisions of article twelve, chapter twenty-nine of this code is not eligible to obtain insurance pursuant to the provisions of this article.

(b) In addition to other eligibility criteria for participation in the health care provider professional liability insurance program established by the provisions of this article or criteria imposed by the board, every participant in the programs shall:

(1) Maintain a policy of not excluding patients whose health care coverage is provided through the West Virginia public employees insurance plan, the West Virginia children's health insurance program, West Virginia medicaid or the West Virginia worker's compensation fund based solely on the fact that the person's health care coverage is provided by any of the aforementioned entities;

(2) Annually participate, at his or her own expense, in a risk management program approved by the board relating to risk management; and

(3) Agree in writing to the board's authority to assign his or her policy, individually or collectively, to a third party if the third party coverage is comparable, as determined by the board.


WVC 29 - 12 B- 8 §29-12B-8. Preferred professional liability insurance program.
(a) Eligibility to participate in the preferred professional liability insurance program shall be determined by underwriting criteria approved by the board and set forth in a written underwriting manual, and shall be subject to rates approved by the board and set forth in a written rating manual. Participation in the preferred professional liability insurance program shall not be limited based on geographic location or specialty, but may be limited based upon indemnity loss history, number of patient exposures, refusal to participate in risk management/loss control programs or any other grounds the board may approve, as set forth in a written underwriting manual. The board shall periodically review its underwriting manual and make any changes it considers necessary or appropriate.

(b) Qualification for participation in the preferred professional liability insurance program shall be reviewed each year, and any participant may be transferred to the high risk professional liability insurance program, as set forth in the written underwriting manual approved by the board.


WVC 29 - 12 B- 9 §29-12B-9. High risk professional liability insurance program.
(a) The rate charged participants in the high risk professional liability insurance program may be higher than those established and approved by the board for participants in the preferred professional insurance program as set forth in a written rating manual. Risks may be refused coverage under criteria approved by the board, as set forth in its underwriting manual. The board of risk and insurance management shall periodically review its underwriting manual and make any changes it deems necessary or appropriate.

(b) If a majority of the board determines that a health care provider covered by one of the programs created by this article presents an extreme risk because of the number of claims filed against him or her or the outcome of such claims, said board may, after notice and a hearing in accordance with the provisions of the West Virginia administrative procedures act, chapter twenty-nine-a of this code, terminate coverage for all claims against that health care provider. Coverage shall terminate thirty days after the board's decision. Upon termination of coverage under this subsection, the board shall notify the licensing or disciplinary board having jurisdiction over the health care provider of said provider's name and of the reasons for termination of the coverage.

(c) The board may terminate coverage for a health care provider's failure to pay premiums by providing written notice of such termination by first-class mail no less than thirty days prior to termination of coverage.


WVC 29 - 12 B- 10 §29-12B-10. Deposit, expenditure and investment of premiums.
(a) The premiums charged and collected by the board under this article shall be deposited into a special revenue account hereby created in the state treasury known as the "Medical Liability Fund", and shall not be part of the general revenues of the state. Disbursements from the special revenue fund shall be upon requisition of the executive director and in accordance with the provisions of chapter five-a of this code. Disbursements shall pay operating expenses of the board attributed to these programs and the board's share of any judgments or settlements of medical malpractice claims. Funds shall be invested with the consolidated fund managed by the West Virginia investment management board and interest earned shall be used for purposes of this article.

(b) Start-up operating expenses of the medical liability fund, not to exceed five hundred thousand dollars, may be transferred to the medical liability fund pursuant to an appropriation by the Legislature from any special revenue funds available. The medical liability fund shall reimburse the board within twenty-four months of the date of the transfer.

(c) For purposes of establishing a pool from which settlements and judgments may be paid, notwithstanding any other provision of this code to the contrary, a portion of the initial capitalization of the pool may be provided through a transfer of no greater than four million dollars from the state special insurance fund established in section five, article twelve of this chapter. All funds transferred pursuant to this section are to be repaid by transfer from the medical liability fund to the state special insurance fund, together with interest that would have accrued in the state special insurance fund, by the first day of July, two thousand six. Funds are to be transferred only as needed for expenditures from the medical liability fund created in this section. The treasurer shall effect these transfers pursuant to this section upon written request of the director of the board of risk and insurance management.


WVC 29 - 12 B- 11 §29-12B-11. Payments for settlement or judgment.
All payments made in satisfaction of any settlement or judgment shall be in accordance with the procedures established by the board. No settlement or judgment may be paid until there is recorded in the office of the executive director: (1) A certified copy of a final judgment against a health care provider insured by either of the medical liability programs created pursuant to this article, or a certified copy of an order approving settlement in a summary proceeding; or (2) appropriate settlement documentation to include a written settlement determination issued by or on behalf of the board.


WVC 29 - 12 B- 12 §29-12B-12. Information exempt from disclosure.
Any specific claim reserve information is exempt from public disclosure under the freedom of information act set forth in article one, chapter twenty-nine-b of this code.


WVC 29 - 12 B- 13 §29-12B-13. Appeal bond.
In the event of a judgment against a health care provider from which the health care provider or the board wishes to appeal, the board is not liable for more than its share of the coverage and, as to that portion, a supersedeas bond signed by the board's administrator or his or her designee, shall suffice without further surety or other security.


WVC 29 - 12 B- 14 §29-12B-14. Effective date and termination of authority.
Policies written under this article may have an effective date retroactive to the effective date of this article. Except as provided in subsection (n), section six of this article, the authority of the board of risk and insurance management to issue medical liability policies under this article shall cease upon the board's transfer, in accordance with section nine, article twenty-f, chapter thirty-three of this code, of assets, obligations and liabilities to the physicians' mutual insurance company created pursuant to said article, or upon the first day of July, two-thousand four, whichever occurs first. The board shall continue to administer any existing policy of insurance which was issued pursuant to this article, but was not transferred to the physician's mutual insurance company, until the policy expires. Upon the expiration of the policy, the board shall make tail coverage available at an appropriate premium rate to be determined by the board. The board shall continue to administer any tail coverage so provided. On the thirtieth day of January each year, the board shall report to the legislature's joint committee on government and finance the amount of any unfunded liability associated with the run out and tail coverage provided by this section.


WVC 29 - 12 C- ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.


WVC 29 - 12 C- 1 §29-12C-1. Patient injury compensation plan study board created; purpose; study of creation and funding of patient injury compensation fund; developing rules and establishing program; and report to the Legislature.
(a) In recognition of the statewide concern over the rising cost of medical malpractice insurance and the difficulty that health care practitioners have in locating affordable medical malpractice insurance, there is hereby created a patient injury compensation fund study board to study the feasibility of establishing a patient injury compensation fund to reimburse claimants in medical malpractice actions for any portion of economic damages awarded which are uncollectible due to statutory limitations on damage awards for trauma care and/or the elimination of joint and several liability of tortfeasor health care providers and health care facilities.

(b) The patient injury compensation fund study board shall consist of the director of the board of risk and insurance management, who shall serve as chairperson, the insurance commissioner and an appointee of the governor. The patient injury compensation fund study board shall utilize the resources of the board of risk and insurance management and the insurance commission to effectuate the study required by this article. The patient injury compensation fund study board shall meet upon the call of the chair. A simple majority of the patient injury compensation fund study board members constitutes a quorum for the transaction of business.

(c) The patient injury compensation fund study board is authorized to hold hearings, conduct investigations and consider, without limitation, all options for identifying funding methods and for the operation and administration of a patient injury compensation fund within the following guidelines:

(1) The board of risk and insurance management is responsible for implementing, administering and operating any patient injury compensation fund;

(2) The patient injury compensation fund must be actuarially sound and fully funded in accordance with generally accepted accounting principles;

(3) Eligibility for reimbursement from the patient injury compensation fund is limited to claimants who have been awarded damages in a medical malpractice action but have been certified by the board of risk and insurance management to be unable, after exhausting all reasonable means available by law of recovering the award, to collect all or part of the economic damages awarded due to the limitations on awards established in sections nine and nine-c, article seven-b, chapter fifty-five of this code; and

(4) The board of risk and insurance management may invest the moneys in the patient injury compensation fund and use any interest or other return from investments to pay administration expenses and claims granted.

(d) The patient injury compensation fund study board's report and recommendations shall be completed no later than the first day of December, two thousand three, and shall be presented to the joint committee of government and finance during the legislative interim meetings to be held in December, two thousand three.


WVC 29 - 12 C- 2 §29-12C-2. Legislative rules.
(a) The Legislature hereby declares that an emergency exists necessitating expeditious implementation of a patient injury compensation fund, if economically feasible, and directs the patient injury compensation fund study board to propose emergency legislative rules relating to the establishment, implementation and operation of the patient injury compensation fund in conjunction with its report and recommendations to the Legislature under section one of this article. The rules proposed by the patient injury compensation fund study board shall:

(1) Provide the funding mechanism and the methodology for processing and timely and accurately collect funds;

(2) Assure the actuarial soundness of the patient injury compensation fund and sufficient moneys to satisfy all foreseeable claims against the patient injury compensation fund, giving due consideration to relevant loss or claim experience or trends and normal costs of operation;

(3) Provide a reasonable reserve fund for unexpected contingencies, consistent with generally accepted accounting principles;

(4) Establish appropriate procedures for notification of payment adjustments prior to any payment periods established in which a funding adjustment will be in effect, consistent with generally accepted accounting principles;

(5) Establish procedures for determining eligibility for and distribution of funds to claimants seeking reimbursement;

(6) Establish the requirements and procedure for certifying that a claimant has been unable to collect a portion of the economic damages recovered;

(7) Establish the process for submitting a claim for payment from the patient injury compensation fund; and

(8) Establish any additional requirements and criteria consistent with and necessary to effectuate the provisions of this article.

(b) If the Legislature accepts, in whole or in part, the recommendations of the patient injury compensation fund study board, enacts legislation establishing a patient injury compensation fund and approves rules governing the initial establishment, implementation and operation of the patient injury compensation fund, those rules shall be filed with the secretary of state as emergency rules.


WVC 29 - 12 D- ARTICLE 12D. WEST VIRGINIA PATIENT INJURY COMPENSATION FUND.


WVC 29 - 12 D- 1 §29-12D-1. Creation of patient injury compensation fund; purpose; initial funding of patient injury compensation fund.
(a) There is created the West Virginia patient injury compensation fund, for the purpose of providing fair and reasonable compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damage awards for trauma care, or as a result of the operation of the joint and several liability principles and standards, set forth in article seven-b, chapter fifty-five of this code. The fund shall consist of all contributions, revenues and moneys which may be paid into the fund from time to time by the state of West Virginia or from any other source whatsoever, together with any and all interest, earnings, dividends, distributions, moneys or revenues of any nature whatsoever accruing to the fund.

(b) Initial funding for the fund shall be provided as follows: During fiscal year two thousand five, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund; during fiscal year two thousand six, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code, shall be transferred to the fund; and during fiscal year two thousand seven, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established in subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund. Beginning fiscal year two thousand eight, if and to the extent additional funding for the fund is required from time to time to maintain the actuarial soundness of the fund, the additional funding may be provided by further act of the Legislature, either from the revenue stream identified in this subsection or otherwise. Payments to the tobacco fund shall be extended until the tobacco fund is repaid in full.

(c) The fund is not and shall not be considered a defendant in any civil action arising under article seven-b, chapter fifty-five of this code.

(d) The fund is not and shall not be considered an insurance company or insurer for any purpose under this code.


WVC 29 - 12 D- 2 §29-12D-2. Administration of fund; investment of fund assets; annual actuarial review and audit; fund assets and liabilities not assets and liabilities of the state.
(a) The patient injury compensation fund shall be implemented, administered and operated by the board of risk and insurance management. In addition to any other powers and authority expressly or impliedly conferred on the board of risk and insurance management in this code, the board may:

(1) Receive, collect and deposit all revenues and moneys due the fund;

(2) Employ, or in accordance with the provisions of law applicable contract for personal, professional or consulting services, retain the services of a qualified competent actuary to perform the annual actuarial study of the fund required by this section and advise the board on all aspects of the fund's administration, operation and defense which require application of the actuarial science;

(3) Contract for any services necessary or advisable to implement the authority and discharge the responsibilities conferred and imposed on the board by this article;

(4) Employ, or contract with, legal counsel of the board's choosing to advise and represent the board and represent the fund in respect of any and all matters relating to the operation of the fund and payments out of the fund;

(5) Employ necessary or appropriate clerical personnel to carry out the responsibilities of the board under this part; and

(6) Promulgate rules, in accordance with article three, chapter twenty-nine-a of this code as it considers necessary or advisable to implement the authority of and discharge the responsibilities conferred and imposed on the board by this article.

(b) The assets of the fund, and any and all income, dividends, distributions or other income or moneys earned by or accruing to the benefit of the fund, shall be held in trust for the purposes contemplated by this article, and shall not be spent for any other purpose: Provided, That the assets of the fund may be used to pay for all reasonable costs and expenses of any nature whatsoever associated with the ongoing administration and operation of the fund. All assets of the fund from time to time shall be deposited with, held and invested by, and accounted for separately by the investment management board. All moneys and assets of the fund shall be invested and reinvested by the investment management board in the same manner as provided by law for the investment of other trust fund assets held and invested by the investment management board.

(c) The board shall cause an annual review of the assets and liabilities of the fund to be conducted on an annual basis by a qualified, independent actuary.

(d) The board shall cause an audit of the fund to be conducted on an annual basis by a qualified, independent auditor.

(e) The state of West Virginia is not liable for any liabilities of the fund. Claims or expenses against the fund are not a debt of the state of West Virginia or a charge against the general revenue fund of the state of West Virginia.


WVC 29 - 12 D- 3 §29-12D-3. Payments from the patient injury compensation fund.
(a) Other than payments in connection with the ongoing operation and administration of the fund, no payments may be made from the fund other than in satisfaction of claims for economic damages to qualified claimants who would have collected economic damages but for the operation of the limits on economic damages set forth in article seven-b, chapter fifty-five of this code.

(b) For purposes of this article, a qualified claimant must be both a "patient" and a "plaintiff" as those terms are defined in article seven-b, chapter fifty-five of this code.

(c) Any qualified claimant seeking payment from the fund must establish to the satisfaction of the board that he or she has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages, following procedures prescribed by the board by legislative rule.

(d) Upon a determination by the board that a qualified claimant to the fund for compensation has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages arising under article seven-b, chapter fifty-five of this code, the board shall make a payment or payments to the claimant for economic damages. The economic damages must have been awarded but be uncollectible after the exhaustion of all reasonable means of recovery of applicable insurance proceeds. In no event shall the amount paid by the board in respect to any one occurrence exceed one million dollars or the maximum amount of money that could have been collected from all applicable insurance prior to the creation of the patient injury compensation fund under this article, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.

(e) The board, in its discretion, may make payments to a qualified claimant in a lump sum amount or in the form of periodic payments. Periodic payments are to be based upon the present value of the total amount to be paid by the fund to the claimant by using federally approved qualified assignments.

(f) In its discretion, the board may make a payment or payments out of the fund to a qualified claimant in connection with the settlement of claims arising under article seven-b, chapter fifty-five of this code, all according to rules promulgated by the board. The board shall prior to making payment determine that payment from the fund to a qualified claimant is in the best interests of the fund. When the claimant and the board agree upon a settlement amount, the following procedure shall be followed:

(1) A petition shall be filed by the claimant with the court in which the action is pending, or if none is pending, in a court of appropriate jurisdiction, for approval of the agreement between the claimant and the board.

(2) The court shall set the petition for hearing as soon as the court's calendar permits. Notice of the time, date and place of hearing shall be given to the claimant and to the board.

(3) At the hearing the court shall approve the proposed settlement if the court finds it to be valid, just and equitable.

(g) If and to the extent that any payment to one or more qualified claimants under this section would deplete the fund during any fiscal year, payments to and among qualified claimant's shall be prorated during the fiscal year according to the rules promulgated by the board. Any amounts due and unpaid to qualified claimants shall be paid in subsequent fiscal years from available funds, but only to the extent funds are available in any fiscal year, according to the board's rules.

(h) Payments out of the fund may be used to pay reasonable attorney fees of attorneys representing qualified claimants receiving compensation in respect of economic damages as established by the board of risk and insurance management.

(i) The claimant may appeal a final decision made by the board pursuant to the provisions of article five, chapter twenty-nine-a of this code.


WVC 29 - 13 - ARTICLE 13. ECONOMIC DEVELOPMENT AGENCY.


WVC 29 - 13 - 1 §§29-13-1 to 29-13-11.

Repealed.

Acts, 1961 Reg. Sess., Ch. 131.


WVC 29 - 14 - ARTICLE 14. STATE COMMISSION ON AGING.


WVC 29 - 14 - 1 §§29-14-1 to 29-14-13.
Repealed.

Acts, 1997 Reg. Sess., Ch. 166.


WVC 29 - 15 - ARTICLE 15. STATE COMMISSION ON MENTAL RETARDATION.


WVC 29 - 15 - 1 §29-15-1. Creation and composition.
There is created the State Commission on Intellectual Disability hereinafter referred to as the commission.

Pursuant to subsection (g), section one, article two, chapter five-f of this code, the commission created by this section is now incorporated into and administered as part of the Department of Health and Human Resources. All references to the commission in this article shall be construed to mean the Department of Health and Human Resources.


WVC 29 - 15 - 2 §29-15-2. Quorum; officers; meetings.
A majority of the members of the commission shall constitute a quorum for the transaction of business. The commission shall elect a chairman, a vice chairman, and such other officers as it shall deem necessary. The commission shall meet at least two times each year. Meetings will be held upon call of the chairman or of a majority of its members.


WVC 29 - 15 - 3 §29-15-3. Employment, salary and expenses of personnel.
The commission shall have authority to employ such personnel as in its judgment may be necessary to carry out the work of the commission, and to fix the salaries for such employees. The commission may, within the limits of funds available, incur traveling and other expenses necessary to the effective discharge of its powers and duties. Requisition for such expenses shall be accompanied by a sworn and itemized statement which shall be filed with the auditor.


WVC 29 - 15 - 4 §29-15-4.

Repealed.

Acts, 1991 Reg. Sess., Ch. 149.


WVC 29 - 15 - 5 §29-15-5. Purposes.
The Department of Health and Human Resources shall take action to carry out the following purposes:

(a) Plan for and take other steps leading to comprehensive state and community action to combat intellectual disability.

(b) Determine what action is needed to combat intellectual disability in the state and the resources available for this purpose.

(c) Develop public awareness of the intellectual disability problem and of the need for combating it.

(d) Coordinate state and local activities relating to the various aspects of intellectual disability and its prevention, treatment, or amelioration.

(e) Consult with and advise the Governor and Legislature on all aspects of intellectual disability.

(f) Consult with and advise state agencies, boards or departments with intellectual disability responsibilities relative to the effective discharge of such responsibilities.


WVC 29 - 15 - 6 §29-15-6. State agency for federal intellectual disability program.
The Department of Health and Human Resources is designated and established as the sole state agency for receiving appropriations under and carrying out the purposes of section five of Public Law 88-156, eighty-eighth Congress approved October 24, 1963, and any law amending, revising, supplementing or superseding section five of said Public Law 88-156.

The department constitutes the designated state agency for handling all programs of the federal government relating to intellectual disability requiring action within the state which are not the specific responsibility of another state agency under the provisions of federal law, rules or regulations, or which have not been specifically entrusted to another state agency by the Legislature.


WVC 29 - 15 - 7 §29-15-7. Donations and grants.
The commission may accept for any of its purposes and functions under this article any and all donations, any grants of money, equipment, supplies, materials, and services (conditional or otherwise) from the United States or any agency thereof, or from any institution, person, firm or corporation, and may receive, utilize, administer and dispose of the same. The commission shall be empowered to comply with all regulations and requirements to qualify for such grants from the United States or agency thereof.

The Legislature shall authorize the necessary appropriation to carry out the work of the commission.


WVC 29 - 15 - 8 §29-15-8. Annual report required.
On or before January one of each year, the commission shall submit to the governor and to the members of the Legislature a report summarizing the work and the activities of the commission for the preceding year.


WVC 29 - 16 - ARTICLE 16. DEPARTMENT OF PERSONNEL.


WVC 29 - 16 - 1 §§29-16-1 to 29-16-7.

Repealed.

Acts, 1969 Reg. Sess., Ch. 100.


WVC 29 - 17 - ARTICLE 17. THE WEST VIRGINIA ARTS AND HUMANITIES COUNCIL.


WVC 29 - 17 - 1 §§29-17-1 to 29-17-7.

Repealed.

Acts, 1977 Reg. Sess., Ch. 7.


WVC 29 - 18 - ARTICLE 18. WEST VIRGINIA STATE RAIL AUTHORITY.


WVC 29 - 18 - 1 §29-18-1. Short title.

This article shall be known and cited as the "West Virginia State Rail Authority Act."


WVC 29 - 18 - 2 §29-18-2. Declaration of policy and responsibility; purpose and intent of article; findings.
It is hereby declared to be the public policy of the state of West Virginia and a responsibility of the state of West Virginia, to facilitate railroad transportation and commerce within the state by exercising those powers of the state necessary to qualify for rail services continuation subsidies pursuant to the provisions of the federal Regional Rail Reorganization Act of one thousand nine hundred seventy-three and any amendment thereto and any rules or regulations promulgated thereunder.

The Legislature finds and hereby declares that this responsibility of the state cannot be effectively met without the establishment, funding, construction, reconstruction, acquisition, repair, replacement, operation and maintenance of railroads and railroad projects.


WVC 29 - 18 - 3 §29-18-3. Definitions.

     As used in this article unless the context clearly requires a different meaning:

     (1) "Authority" means the West Virginia State Rail Authority created by this article, the duties, powers, responsibilities and functions of which are specified in this article.

     (2) "Bond" or " state rail authority bond" means a revenue bond or rate issued by the State Rail Authority to effectuate the intents and purposes of this article.

     (3) "Commuter rail" means a transit mode that is an electric or diesel propelled railway for urban passenger train service consisting of local short distance travel operating between a central city and adjacent suburbs. Service must be operated on a regular basis by or under contract with a transit operator for the purpose of transporting passengers within urbanized areas or between urbanized areas and outlying areas. The rail service, using either locomotive-hauled or self-propelled railroad passenger cars, is generally characterized by multitrip tickets, specific station-to-station fares or railroad employment practices and usually has only one or two stations in the central business district. It does not include heavy rail rapid transit or light rail/streetcar transit service. Intercity rail service is excluded except for that portion of service operated by or under contract with a public transit agency for predominantly commuter services. Only the predominantly commuter service portion of an intercity route is eligible for inclusion when determining commuter rail route miles.

     (4) "Heavy rail" means a transit mode that is an electric railway with the capacity for a heavy volume of traffic. It is characterized by high speed and rapid acceleration passenger rail cars operating singly or in multicar trains on fixed rails, separate rights-of-way from which all other vehicular and foot traffic are excluded, sophisticated signaling and high platform loading.

     (5) "Income" means and includes all money accruing to the authority from any source.

     (6) "Light rail" means a transit mode that typically is an electric railway with a light volume traffic capacity compared to heavy rail. It is characterized by passenger rail cars operating singly or in short, usually two-car, trains, on fixed rails in shared or exclusive rights-of-way, low- or high-platform loading and vehicle power drawn from an overhead electric line via a trolley or a pantograph.

     (7) "Owner" means and includes all individuals, copartnerships, associations, corporations, companies, transportation companies, public service corporations, the United States or any agency or instrumentality thereof, common carriers by rail and railroad companies having any title or interest in any rail properties authorized to be acquired, leased or used by this article.

     (8) "Person" means individuals, corporations, partnerships or foreign and domestic associations, including railroads.

     (9) "Predominantly commuter services" means that for any given trip segment (i.e., distance between two stations), more than fifty percent of the average daily ridership travels on the train at least three times a week.

     (10) "Rail properties" means assets or rights owned, leased or otherwise controlled by a railroad or other person which are used, or useful, in rail transportation service: Provided, That rail properties does not include any properties owned, leased, or otherwise controlled by a railroad not in reorganization, unless it consents to such properties' inclusion in the particular transaction.

     (11) "Rail service" means both freight and passenger service.

     (12) "Railroad" means a common carrier by railroad as defined in section 1(3) of Part I of the Interstate Commerce Act (49 U. S. C. (1) 3).

     (13) "Railroad project" means the initiation, acquisition, construction, maintenance, repair, equipping or operation of rail properties or rail service, or the provisions of loans or grants to or with government agencies, or to persons for such purposes, by the authority.
WVC 29 - 18 - 4 §29-18-4. West Virginia state rail authority continued; organization of authority; appointment of members; term of office, compensation and expenses; director of authority; termination date.
(a) The West Virginia railroad maintenance authority, heretofore created and redesignated the West Virginia state rail authority, is hereby continued. References in this code to the West Virginia railroad maintenance authority shall be understood and taken to mean the West Virginia state rail authority. Nothing in this article is intended to invalidate any action or obligation of the West Virginia railroad maintenance authority undertaken prior to the effective date of this article. The authority is a governmental instrumentality of the state and a body corporate. The exercise by the authority of the powers conferred by this article and the carrying out of its purposes and duties shall be deemed and held to be, and are hereby determined to be, essential governmental functions and for a public purpose.

(b) The authority shall consist of seven members. The secretary of the department of transportation shall be chairman: Provided, That the secretary may appoint a designee to act in his or her stead at meetings of the authority. The other six members shall be appointed by the governor, by and with the advice and consent of the Senate, for a term of six years. Of the members of the authority first appointed, two shall be appointed for a term ending on the thirtieth day of June, one thousand nine hundred seventy-seven, two shall be appointed for a term ending two years thereafter and two shall be appointed for a term ending four years thereafter. A person appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed only for the remainder of such term. Each authority member shall serve until the appointment and qualification of his successor. No more than three of the appointed authority members shall at any one time belong to the same political party. Appointed authority members may be reappointed to serve additional terms.

(c) All members of the authority shall be citizens of the state. Each appointed member of the board, before entering upon his duties, shall comply with the requirements of article one, chapter six of this code and give bond in the sum of twenty-five thousand dollars in the manner provided in article two, chapter six of this code. The governor may remove any authority member as provided in section four, article six, chapter six of this code.

(d) Annually the authority shall elect one of its members as vice chairman, and shall appoint a secretary-treasurer, who need not be a member of the authority. Four members of the authority shall constitute a quorum and the affirmative vote of four members shall be necessary for any action taken by vote of the authority. No vacancy in the membership of the authority shall impair the rights of a quorum by such vote to exercise all the rights and perform all the duties of the authority. The person appointed as secretary-treasurer, including an authority member if he is so appointed, shall give bond in the sum of fifty thousand dollars in the manner provided in article two, chapter six of this code.

(e) The secretary of the department of transportation shall not receive any compensation for serving as the authority chairman. Each of the six appointed members of the authority shall receive the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or substantial portion thereof engaged in the discharge of official duties. All such compensation and expenses incurred shall be payable solely from funds of the authority or from funds appropriated for such purpose by the Legislature and no liability or obligation shall be incurred by the authority beyond the extent to which moneys are available from funds of the authority or from such appropriations.

(f) There shall also be a director of the authority appointed by the authority, with the consent of the secretary.


WVC 29 - 18 - 5 §29-18-5. Authority may construct, maintain, etc., railroad maintenance projects.
To accomplish the public policies and purposes and to meet the responsibility of the state as set forth in this article, the West Virginia railroad maintenance authority may carry out railroad projects or cause railroad projects to be carried out pursuant to a lease, sublease or agreement with any person or governmental agency; may make loans and grants to or with governmental agencies or to persons for railroad projects; and may issue railroad authority bonds of this state; payable solely from revenues, to pay the cost of such projects. A railroad project shall not be undertaken unless it has been determined by the authority to be consistent with any applicable comprehensive plan for railroad projects approved by the authority. Any resolution of the authority authorizing a railroad project shall include a finding by the authority that such determinations have been made.


WVC 29 - 18 - 6 §29-18-6. Powers, duties and responsibilities of authority generally.

     The West Virginia State Rail Authority is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate its corporate purpose.

     (a) The authority may:

     (1) Adopt and, from time to time, amend and repeal bylaws necessary and proper for the regulation of its affairs and the conduct of its business and propose rules for legislative approval in accordance with the provisions of article three of this chapter to implement and make effective its powers and duties.

     (2) Adopt an official seal.

     (3) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided.

     (4) Sue and be sued in its own name and plead and be impleaded in its own name and particularly to enforce the obligations and covenants made under sections ten, eleven and sixteen of this article. Any actions against the authority shall be brought in the circuit court of Kanawha County. The location of the principal office of the authority shall be determined by the Governor.

     (5) Make loans and grants to governmental agencies and persons for carrying out railroad projects by any governmental agency or person and, in accordance with chapter twenty-nine-a of this code, propose rules for legislative approval and procedures for making such loans and grants.

     (6) Acquire, construct, reconstruct, enlarge, improve, furnish, equip, maintain, repair, operate, lease or rent to or contract for operation by a governmental agency or person, railroad projects and, in accordance with chapter twenty-nine-a of this code, propose legislative rules for the use of these projects.

     (7) Make available the use or services of any railroad project to one or more persons, one or more governmental agencies or any combination thereof.

     (8) Issue State Rail Authority bonds and notes and refunding bonds of the state, payable solely from revenues as provided in section ten of this article unless the bonds are refunded by refunding bonds for the purpose of paying any part of the cost of one or more railroad projects or parts thereof.

     (9) Acquire, by gift or purchase, hold and dispose of real and personal property in the exercise of its powers and the performance of its duties as set forth in this article.

     (10) Acquire in the name of the state, by purchase or otherwise, on terms and in the manner it considers proper, or by the exercise of the right of eminent domain in the manner provided in chapter fifty-four of this code, rail properties and appurtenant rights and interests necessary for carrying out railroad projects.

     (11) (A) Make and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers including, but not limited to, the power to make contracts and agreements in accordance with the provisions set forth in paragraph (B) of this subdivision.

     (B) Make and enter into contracts and agreements to acquire rolling stock or equipment with a value of $500,000 or less exempt from the provisions of article three, chapter five-a of this code.

     The authority shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which set forth the methods for determining value of rolling stock or equipment to be purchased in accordance with the provisions of paragraph (B) of this subdivision.

     (C) Where rolling stock, equipment or trackage of the authority is in need of immediate maintenance, repair or reconstruction in order to avoid a cessation of its operations, economic loss, the inability to provide essential service to customers or danger to authority personnel or the public, the following requirements and procedures for entering into the contract or agreement to remedy the condition shall be in lieu of those provided in article three, chapter five-a of this code or any legislative rule promulgated pursuant thereto:

     (i) If the cost under the contract or agreement involves an expenditure of more than $1,000, but $10,000 or less, the authority shall award the contract to or enter into the agreement with the lowest responsible bidder based upon at least three oral bids made pursuant to the requirements of the contract or agreement.

     (ii) If the cost under the contract or agreement, other than one for compensation for personal services, involves an expenditure of more than $10,000, but $100,000 or less, the authority shall award the contract to or enter into the agreement with the lowest responsible bidder based upon at least three bids, submitted to the authority in writing on letterhead stationery, made pursuant to the requirements of the contract or agreement.

     (D) Notwithstanding any other provision of this code to the contrary, a contract or lease for the operation of a railroad project constructed and owned by the authority or an agreement for cooperation in the acquisition or construction of a railroad project pursuant to section sixteen of this article is not subject to the provisions of article three, chapter five-a of this code or any legislative rule promulgated pursuant thereto and the authority may enter into the contract or lease or the agreement pursuant to negotiation and upon such terms and conditions and for a period of time as it finds to be reasonable and proper under the circumstances and in the best interests of proper operation or of efficient acquisition or construction of the railroad project.

     (E) The authority may reject any and all bids. A bond with good and sufficient surety, approved by the authority, is required of all contractors in an amount equal to at least fifty percent of the contract price, conditioned upon the faithful performance of the contract.

     (12) Appoint a director and employ managers, superintendents and other employees and retain or contract with consulting engineers, financial consultants, accountants, attorneys and other consultants and independent contractors as are necessary in its judgment to carry out the provisions of this article and fix the compensation or fees thereof. All expenses thereof are payable from the proceeds of State Rail Authority revenue bonds or notes issued by the authority, from revenues and funds appropriated for this purpose by the Legislature or from grants from the federal government which may be used for such purpose.

     (13) Receive and accept from any state or federal agency grants for or in aid of the construction of any railroad project or for research and development with respect to railroads and receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which the grants and contributions are made.

     (14) Engage in research and development with respect to railroads.

     (15) Purchase fire and extended coverage and liability insurance for any railroad project and for the principal office and suboffices of the authority, insurance protecting the authority and its officers and employees against liability, if any, for damage to property or injury to or death of persons arising from its operations and be a member of, and to participate in, the state workers' compensation program.

     (16) Charge, alter and collect rates, rentals and other charges for the use or services of any railroad project as provided in this article.

     (17) Do all acts necessary and proper to carry out the powers expressly granted to the authority in this article.

     (b) In addition, the authority has the power to:

     (1) Acquire rail properties both within and not within the jurisdiction of the Interstate Commerce Commission and rail properties within the purview of the federal Regional Rail Reorganization Act of 1973, any amendments to it and any other relevant federal legislation.

     (2) Enter into agreements with owners of rail properties for the acquisition of rail properties or use, or both, of rail properties upon the terms, conditions, rates or rentals that can best effectuate the purposes of this article.

     (3) Acquire rail properties and other property of a railroad in concert with another state or states as is necessary to ensure continued rail service in this state.

     (4) Administer and coordinate the state plan.

     (5) Provide in the state plan for the equitable distribution of federal rail service continuation subsidies among state, local and regional transportation authorities.

     (6) Promote, supervise and support safe, adequate and efficient rail services.

     (7) Employ sufficiently trained and qualified personnel for these purposes.

     (8) Maintain adequate programs of investigation, research, promotion and development in connection with the purposes and to provide for public participation therein.

     (9) Provide satisfactory assurances on behalf of the state that fiscal control and fund accounting procedures will be adopted by the state necessary to assure proper disbursement of and accounting for federal funds paid to the state as rail service continuation subsidies.

     (10) Comply with the regulations of the Secretary of Transportation of the United States Department of Transportation affecting federal rail service continuation programs.

     (11) Do all things otherwise necessary to maximize federal assistance to the state under Title IV of the federal Regional Rail Reorganization Act of 1973 and to qualify for rail service continuation subsidies pursuant to the federal Regional Rail Reorganization Act of 1973.

     (c) Additional authority in regard to the Maryland Area Regional Commuter.

     (1) The Rail Authority is hereby granted, has and may exercise all aforementioned powers necessary or appropriate to coordinate all activities with the Maryland Transit Administration to assure the continued operation of the Maryland Area Regional Commuter into the eastern panhandle of the state.

     (2) In addition to the authority provided in subdivision (1) of this subsection, the Rail Authority shall negotiate agreements with the State of Maryland or the Maryland Transit Administration for the continued operation of the commuter rail operation between Maryland and the Washington D. C. metropolitan area and West Virginia. A commuter rail operation agreement shall provide for quantity and quality of commuter rail service, including certain minimum daily service at least equivalent to the level service on the effective date of the amendments to this subsection enacted in the Regular Session of the Legislature, 2013, unless daily ridership diminishes significantly from said date. The agreement may provide for the payment of track access fees attributed to commuter rail operation within the boundaries of the state. Any payments of track access fees pursuant to the agreement shall be paid from the special fund created in section twenty-four of this article as provided by appropriation of the Legislature.
WVC 29 - 18 - 7 §29-18-7. Operations; purchases.
(a) The authority may sell, transfer or lease all, or any part, of the rail properties and other property acquired under the provisions of this article to any responsible person, firm or corporation for continued operation of a railroad or other public purpose: Provided, That approval for the continued operation or other public purpose, is granted by the interstate commerce commission of the United States, whenever approval is required. The sale, transfer or lease shall be for a price and subject to any further terms and conditions which the authority feels are necessary and appropriate to effectuate the purposes of this article.

(b) After acquiring any railroad lines within the state, the authority shall assist any responsible person, firm or corporation to secure, as promptly as possible, any order or certificate required by the interstate commerce commission for the performance of railroad service. The authority shall also give any assurances or guarantees which are necessary or desirable to carry out the purposes of this article.

(c) The authority may take whatever steps are necessary in order to determine the absolute fee simple title ownership of all rail properties of any railroad within the state. The determination may include the status of the rail properties with respect to easements, rights-of-way, leases, reversionary rights, fee simple title ownership and any and all related title matters. The authority may retain attorneys, experts or other assistants, and issue any contracts as are necessary to make the title determination.

(d) All rail properties within the state offered for sale by any railway corporation after the date of enactment of this article shall be offered for sale to the state in the first instance.

(e) The authority may cooperate with other states in connection with the purchase of any rail properties within this state. The authority may also acquire railroad rights in other states and rail properties lying in other states in order to carry out the intentions and purposes of this article. In carrying out the powers and duties conferred by this article, the authority may enter into general contractual arrangements, including joint purchasing and leasing of rail properties with other states.

(f) In weighing the varied interests of the residents of this state, the authority shall give consideration to the individual interest of any county or municipality expressing a desire to acquire a portion, or all, of the abandoned real estate located within its jurisdiction. The authority may exercise its powers under this article to acquire the abandoned property for subsequent conveyance to the county or municipality.

(g) The authority may utilize federal funds, grants, gifts or donations which are available and any sums that are appropriated in carrying out the purposes of this article. The authority may also apply for discretionary or other funds available under the provisions of the federal Regional Rail Reorganization Act of 1973 or other federal programs.

(h) The authority may apply for an acquisition and modernization loan, or a guarantee of a loan, pursuant to Section 403 of the federal Regional Rail Reorganization Act of 1973, or any other federal programs, within the limit of funds appropriated for those purposes.

(i) The authority is authorized to purchase any railroad rolling stock, equipment and machinery necessary for the operation and maintenance of any rail properties purchased by it on behalf of the state, with any funds made available for this purpose. The authority may also acquire and have available a pool of equipment and machinery which may be utilized by the operators of the rail properties for the purpose of track maintenance and other related railroad activities upon terms and conditions determined by the authority. Notwithstanding the provisions of sections forty-eight through fifty-three, article three, chapter five-a of this code to the contrary, the authority may enter into contracts or agreements for the lease or purchase and maintenance of any vehicles required for its purposes with the division of highways. For those purposes, the division of highways is authorized and empowered to enter into contracts or agreements for the lease or purchase and maintenance of any vehicles with the authority.

(j) The authority may contract for the rebuilding or relocation of any rail properties acquired pursuant to this article, within the provisions of the federal Regional Rail Reorganization Act of 1973, or any other applicable legislation. The authority may also spend any sums appropriated, as well as any other available funds, for the modernization, rebuilding and relocation of any rail properties owned by the state or by a private carrier. The authority may do any maintenance on any rail properties owned by the state as is necessary in the public interest.

(k) The authority may contract with any domestic or foreign person, firm, corporation, agency or government to provide, maintain or improve rail transportation service on the rail properties acquired by the state under this article.

(l) Whenever the authority determines that any rail properties acquired by the state are no longer needed for railroad purposes, it may, with the permission of the governor, permanently or temporarily transfer the rail properties to any other state department or agency or political subdivision of the state, which shall utilize the properties for a public purpose. Whenever more than one department or agency or political subdivision wishes to utilize the property, the authority shall resolve such a conflict and make a prompt determination of the reasonable and proper order of priority, taking into consideration any applicable state plans, policies or objectives. If no state department or agency or political subdivision wants the properties, the authority may sell them, with the proceeds deposited to the special railroad fund established by this article. A public hearing is required prior to the transfer or sale of any rail properties by the authority.


WVC 29 - 18 - 8 §29-18-8. Creation of railroad maintenance authority fund.
There is hereby created in the state treasury a West Virginia railroad maintenance authority fund. The authority shall deposit proceeds derived from action taken pursuant to this article and shall be the authority to use moneys in such fund to effectuate the provisions and purposes of this article.


WVC 29 - 18 - 9 §29-18-9. Expenditure of funds for study and engineering of proposed projects.

The authority may expend, out of any funds available for the purpose, such moneys as are necessary for the study of any proposed railroad project and may use its engineering and other forces, including consulting engineers for the purpose of effecting such study. All such expenses incurred by such study and engineering shall be paid from the funds established in section eight of this article.


WVC 29 - 18 - 10 §29-18-10. Authority empowered to issue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.

The authority is hereby empowered to raise the cost of one or more railroad projects or parts thereof by the issuance from time to time of railroad maintenance revenue bonds and notes of the state in such principal amount as the authority deems necessary, but the aggregate amount of all issues of bonds and notes outstanding at one time for all projects authorized hereunder shall not exceed that amount capable of being serviced by revenues received from such projects.

The authority may, from time to time, issue renewal notes, issue bonds to pay such notes and whenever it deems refunding expedient, refund any bonds by the issuance of railroad maintenance revenue refunding bonds of the state, whether the bonds to be refunded have or have not matured, and issue bonds partly to refund bonds then outstanding and partly for any other authorized purpose. The refunding bonds shall be sold and the proceeds applied to the purchase, redemption or payment of the bonds to be refunded. Except as may otherwise be expressly provided by the authority, every issue of its bonds or notes shall be obligations of the authority payable out of the revenues of the authority, which are pledged for such payment, without preference or priority of the first bonds issued, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues. Such pledge shall be valid and binding from the time the pledge is made and the revenue so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority irrespective of whether such parties have notice thereof.

All such bonds and notes shall have and are hereby declared to have all the qualities of negotiable instruments.

The bonds and notes shall be authorized by resolution of the authority, shall bear such date and shall mature at such time, in the case of any such note or any renewals thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such resolution may provide. The bonds and notes shall bear interest at such rate, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment, at such place and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by the chairman and vice chairman of the authority, both of whom may use facsimile signatures. The official seal of the authority or a facsimile thereof shall be affixed thereto or printed thereon and attested, manually or by facsimile signature, by the secretary-treasurer of the authority, and any coupons attached thereto shall bear the signature or facsimile signature of the chairman of the authority. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he had remained in office until such delivery and in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes such facsimile seal will continue to be sufficient for all purposes.

Any resolution authorizing any bonds or notes or any issue thereof may contain provisions, subject to such agreements with bondholders or noteholders as may then exist, which provisions shall be a part of the contract with the holders thereof, as to pledging all or any part of the revenues of the authority tosecure the payment of the bonds or notes or of any issue thereof; the use and disposition of revenues of the authority; a covenant to fix, alter and collect rates, rentals and other charges so that pledged revenues will be sufficient to pay the costs of operation, maintenance and repairs, pay principal of and interest on bonds or notes secured by the pledge of such revenues and provide such reserves as may be required by the applicable resolution or trust agreement; the setting aside of reserve funds, sinking funds or replacement and improvement funds and the regulation and disposition thereof; the crediting of the proceeds of the sale of bonds or notes to and among the funds referred to or provided for in the resolution authorizing the issuance of the bonds or notes; the use, lease, sale or other disposition of any railroad project or any other assets of the authority; limitations on the purpose to which the proceeds of sale of bonds or notes may be applied and pledging such proceeds to secure the payment of the bonds or notes or of any issue thereof; notes issued in anticipation of the issuance of bonds, the agreement of the authority to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitations on the issuance of additional bonds or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or notes; the procedure, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated, the amount of bonds or notes the holders of which must consent thereto and the manner in which such consent may be given; limitations on the amount of moneys to be expended by the authority for operating, administrative or other expenses of the authority; securing any bonds or notes by a trust agreement; and any other matters, of like or different character, which in any way affect the security or protection of the bonds or notes.

Neither the members of the authority nor any person executing the bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.


WVC 29 - 18 - 11 §29-18-11. Trustee for bondholders; contents of trust agreement.

In the discretion of the authority, any railroad maintenance bonds or notes or railroad maintenance refunding bonds issued by the authority under this article may be secured by a trust agreement between the authority and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within or without this state.

Any such trust agreement may pledge or assign revenues of the authority to be received, but shall not convey or mortgage any railroad project or any part thereof. Any such trust agreement or any resolution providing for the issuance of such bonds or notes may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property, the construction, improvement, maintenance, repair, operation and insurance of the railroad project in connection with which such bonds or notes are authorized, the rentals or other charges to be imposed for the use or services of any railroad project, the custody, safeguarding, and application of all moneys and provisions for the employment of consulting engineers in connection with the construction or operation of such railroad project. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or notes or of revenues shall furnish such indemnifying bonds or pledge such securities as are required by the authority. Any such trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreements or trust indentures securing similar bonds. Such trust agreement may contain such other provisions as the authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as a part of the cost of the operation of the railroad project. Any such trust agreement or resolution authorizing the issuance of railroad maintenance revenue bonds may provide the method whereby the general administrative overhead expenses of the authority shall be allocated among the several projects acquired or constructed by it as a factor of the operating expenses of each such project.


WVC 29 - 18 - 12 §29-18-12. Legal remedies of bondholders and trustees.
Any holder of railroad maintenance revenue bonds issued under the authority of this article or any of the coupons appertaining thereto and the trustee under any trust agreement, except to the extent the rights given by this article may be restricted by the applicable resolution or such trust agreement, may by civil action, mandamus or other proceedings, protect and enforce any rights granted under the laws of this state or granted under this article, by the trust agreement or by the resolution authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by this article, or by the trust agreement or resolution, to be performed by the authority or any officer thereof, including the fixing, charging and collecting of sufficient rentals or other charges.


WVC 29 - 18 - 13 §29-18-13. Bonds and notes not debt of state, county, municipality or of any political subdivision; expenses incurred pursuant to article.
Railroad maintenance revenue bonds and notes and railroad maintenance revenue refunding bonds issued under authority of this article and any coupons in connection therewith shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders or owners thereof shall have no right to have taxes levied by the Legislature or taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds and notes shall be payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued under authority of this article, which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.

All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under authority of this article. Such article does not authorize the authority to incur indebtedness or liability on behalf of or payable by the state or any county, municipality or political subdivision thereof.


WVC 29 - 18 - 14 §29-18-14. Use of funds by authority; restrictions thereon.
All moneys, properties and assets acquired by the authority, whether as proceeds from the sale of railroad maintenance revenue bonds or as revenues or otherwise, shall be held by it in trust for the purposes of carrying out its powers and duties, and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any resolution authorizing the issuance of railroad maintenance revenue bonds or in any trust agreement securing the same, or except when invested pursuant to section thirteen of this article, shall be kept in appropriate depositories and secured as provided and required by law. The resolution authorizing the issuance of such bonds of any issue or the trust agreement securing such bonds shall provide that any officer to whom, or any banking institution or trust company to which, such moneys are paid shall act as trustee of such moneys and hold and apply them for the purposes hereof, subject to the conditions this article and such resolution or trust agreement provide.


WVC 29 - 18 - 15 §29-18-15. Investment of funds by authority.
Funds of the authority in excess of current needs, except as otherwise provided in any resolution authorizing the issuance of its railroad maintenance revenue bonds or in any trust agreement securing the same, may be invested by the authority in any security or securities in which the "West Virginia State Board of Investments" is authorized to invest under sections nine and ten, article six, chapter twelve of this code, except those securities specified in subdivisions (f) and (g) of said section nine. Income from all such investments of moneys in any fund shall be credited to such funds as the authority determines, subject to the provisions of any such resolution or trust agreement and such investments may be sold at such times as the authority determines.


WVC 29 - 18 - 16 §29-18-16. Rentals and other revenues from railroad projects; contracts and leases of authority; cooperation of other governmental agencies; bonds of such agencies.
The authority may charge, alter and collect rates, rentals or other charges for the use or services of any project, and contract in the manner provided by this section with one or more persons, one or more governmental agencies, or any combination thereof, desiring the use or services thereof, and fix the terms, conditions, rates, rentals or other charges for such use or services. Such rentals or other charges shall not be subject to supervision, or regulation by any other authority, department, commission, board, bureau or agency of the state, and such contract may provide for acquisition by such person or governmental agency of all or any part of such railroad project for such consideration payable over the period of the contract or otherwise as the authority in its sole discretion determines to be appropriate, but subject to the provisions of any resolution authorizing the issuance of railroad maintenance revenue bonds or notes or railroad maintenance revenue refunding bonds of the authority or any trust agreement securing the same. Any governmental agency which has power to construct, operate and maintain railroad projects may enter into a contract or lease with the authority whereby the use or services of any railroad project of the authority will be made available to such governmental agency and pay for such use or services such rentals or other charges as may be agreed to by such governmental agency and the authority.

Any governmental agency or agencies or combination thereof may cooperate with the authority in the acquisition or construction of a railroad project and shall enter into such agreements with the authority as are necessary, with a view to effective cooperative action and safeguarding of the respective interests of the parties thereto, which agreements shall provide for such contributions by the parties thereto in such proportion as may be agreed upon and such other terms as may be mutually satisfactory to the parties, including without limitation the authorization of the construction of the project by one of the parties acting as agent for all of the parties and the ownership and control of the project by the authority to the extent necessary or appropriate for purposes of the issuance of railroad maintenance revenue bonds by the authority. Any governmental agency may provide such contribution as is required under such agreements by the appropriation of money or, if authorized by a favorable vote of the electors to issue bonds or notes or levy taxes or assessments and issue notes or bonds in anticipation of the collection thereof, by the issuance of bonds or notes or by the levying of taxes or assessments and the issuance of bonds or notes in anticipation of the collection thereof, and by the payment of such appropriated money or the proceeds of such bonds or notes to the authority pursuant to such agreements.

Any governmental agency, pursuant to a favorable vote of the electors in an election held before or after the effective date of this section for the purpose of issuing bonds to provide funds to acquire, construct or equip, or provide real estate and interests in real estate for a railroad project, whether or not the governmental agency at the time of such election had the authority to pay the proceeds from such bonds or notes issued in anticipation thereof to the authority as provided in this section, may issue such bonds or notes in anticipation of the issuance thereof and pay the proceeds thereof to the authority in accordance with an agreement between such governmental agency and the authority: Provided, That the legislative authority of the governmental agency finds and determines that the railroad project to be acquired or constructed by the authority in cooperation with such governmental agency will serve the same public purpose and meet substantially the same public need as the facility otherwise proposed to be acquired or constructed by the governmental agency with the proceeds of such bonds or notes.


WVC 29 - 18 - 17 §29-18-17. Maintenance, operation and repair of projects; reports by authority to governor and Legislature.

Each railroad project, when constructed and placed in operation, shall be maintained and kept in good condition and repair by the authority or the authority shall cause the same to be maintained and kept in good condition and repair. Each such project shall be operated by such operating employees as the authority employs or pursuant to a contract or lease with a governmental agency or person. All public or private property damaged or destroyed in carrying out the provisions of this article and in the exercise of the powers granted hereunder with regard to any project shall be restored or repaired and placed in its original condition, as nearly as practicable, or adequate compensation made therefor out of funds provided in accordance with the provisions of this article.

As soon as possible after the close of each fiscal year, the authority shall make an annual report of its activities for the preceding fiscal year to the governor and the Legislature. Each such report shall set forth a complete operating and financial statement covering the authority's operations during the preceding fiscal year. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year by certified public accountants and the cost thereof may be treated as a part of the cost of construction or of operations of its projects.


WVC 29 - 18 - 18 §29-18-18. Railroad maintenance bonds lawful investments.
The provisions of sections nine and ten, article six, chapter twelve of this code to the contrary notwithstanding, all railroad maintenance revenue bonds issued pursuant to this article shall be lawful investments for the West Virginia state board of investments and shall also be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.


WVC 29 - 18 - 19 §29-18-19. Exemption from taxation.
The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience, well-being and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is a public purpose. As the operation and maintenance of railroad projects will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any railroad project or upon any property acquired or used by the authority or upon the income therefrom. Such bonds and notes and all interest and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.


WVC 29 - 18 - 20 §29-18-20. Acquisition of property by authority; governmental agencies authorized to convey, etc., property.

The authority may acquire by purchase, whenever it deems such purchase expedient, any land, property, rights, rights-of-way, franchises, easements and other interests in lands it deems necessary or convenient for the construction and operation of any railroad project upon such terms and at such prices it considers reasonable and can be agreed upon between the authority and the owner thereof, and take title thereto in the name of the state.

All governmental agencies, notwithstanding any contrary provision of law, may lease, lend, grant or convey to the authority, at its request, upon such terms as the proper authorities of such governmental agencies deem reasonable and fair and without the necessity for an advertisement, auction, order of court or other action or formality, other than the regular and formal action of the governmental agency concerned, any real property or interests therein, including improvements thereto or personal property which is necessary or convenient to the effectuation of the authorized purposes of the authority, including public roads and other real property or interests therein, including improvements thereto or personal property already devoted to public use.


WVC 29 - 18 - 21 §29-18-21. Property of public utilities and common carriers.
This section authorizes the authority to take or disturb property or facilities belonging to any public utility or to a common carrier, which property or facilities are required for the proper and convenient operation of such public utility or common carrier, if provision is made for the restoration, relocation or duplication of such property or facilities elsewhere at the sole cost of the authority.

When the authority finds it necessary to change the location of any portion of any public road, state highway, railroad or public utility facility in connection with the construction of a railroad project, it shall cause the same to be reconstructed at such location as the unit or division of government having jurisdiction over such road, highway, railroad or public utility facility deems most favorable. Such construction shall be of substantially the same type and in as good condition as the original road, highway, railroad or public utility facility. The cost of such reconstruction, relocation or removal and any damage incurred in changing the location of any such road, highway, railroad or public utility facility shall be paid by the authority as a part of the cost of such railroad project.

When the authority finds it necessary that any public highway or portion thereof be vacated by reason of the acquisition or construction of a railroad project, the authority shall request the West Virginia commissioner of highways, in writing, to vacate such highway or portion thereof if the highway or portion thereof to be vacated is part of the state road system, or, if the highway or portion thereof to be vacated is under the jurisdiction of a county or a municipality, the authority shall request the governing body of such county or municipality to vacate such public road or portion thereof. The authority shall pay to the West Virginia commissioner of highways or to the county or municipality, as the case may be, as part of the cost of such railroad project, any amounts required to be deposited with any court in connection with proceedings for the determination of compensation and damages and all amounts of compensation and damages finally determined to be payable as a result of such vacation.

The authority may make reasonable rules and regulations for the installation, construction, maintenance, repair, renewal, relocation and removal of railroad or public utility facilities in, on, over or under any railroad project. Whenever the authority determines that it is necessary that any such facilities installed or constructed in, on, over or under property of the authority pursuant to such rules and regulations be relocated, the railroad or public utility owning or operating such facilities shall relocate or remove them in accordance with the order of the authority. The cost and expenses of such relocation or removal, including the cost of installing such facilities in a new location, the cost of any lands or any rights or interests in lands and the cost of any other rights acquired to accomplish such relocation or removal, may be paid by the authority as a part of the cost of such railroad project. In case of any such relocation or removal of facilities, the railroad or public utility owning or operating them, and its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances in the new location in, on, over or under the property of the authority for as long a period and upon the same terms as it had the right to maintain and operate such facilities in their former location.


WVC 29 - 18 - 22 §29-18-22. Financial interest in contracts prohibited; penalty.

No officer, member or employee of the authority shall be financially interested, directly or indirectly, in any contract of any person with the authority, or in the sale of any property, real or personal, to or from the authority. This section does not apply to contracts or purchases of property, real or personal, between the authority and any governmental agency. If any officer, member or employee of the authority has such financial interest in a contract or sale of property prohibited hereby, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.


WVC 29 - 18 - 23 §29-18-23. Meetings and records of authority to be kept public.
All meetings of the authority shall be open to the public and the records of the authority shall be open to public inspection at all reasonable times, except as otherwise provided in this section. All final actions of the authority shall be journalized and such journal shall also be open to the inspection of the public at all reasonable times.


WVC 29 - 18 - 24 §29-18-24. Creation of the West Virginia Commuter Rail Access Fund.

     There is hereby established a special fund in the State Treasury known as the West Virginia Commuter Rail Access Fund. The fund shall be administered by the director and shall consist of appropriations by the Legislature. Subject to legislative appropriation, the director shall administer the fund to pay track access fees pursuant to the agreement required by section six of this article. Balances in the fund at the end of any fiscal year shall not expire, but shall be expended for those purposes in ensuing fiscal years.
WVC 29 - 18 - 25 §29-18-25. State rail plan required.
(a) The authority shall establish a state plan for rail transportation and local rail services. In establishing and updating the plan, the authority may request input from freight and rail passenger associations.

(b) The plan shall, at a minimum, comply with the provisions of the laws of the United States and any regulations made thereunder relating to capturing and administering federal moneys for rail transportation, local rail services, and intermodal facilities as deemed necessary by the authority.


WVC 29 - 19 - ARTICLE 19. SOLICITATION OF CHARITABLE FUNDS ACT.


WVC 29 - 19 - 1 §29-19-1. Short title.
This article shall be known and may be cited as the "Solicitation of Charitable Funds Act."


WVC 29 - 19 - 1 A §29-19-1a. General purpose.

The purpose of this article is to protect the people of the state of West Virginia by requiring full public disclosure by persons and organizations who solicit funds from the public and the purposes for which such funds are solicited and how they are actually used, and to prevent deceptive and dishonest statements and conduct in the solicitation and reporting of funds for or in the name of charity.


WVC 29 - 19 - 2 §29-19-2. Definitions.
As used in this article:

(1) "Audit" means the systematic examination of records and documents and the securing of other evidence by confirmation, physical inspection, or otherwise, that includes a written assurance that financial statements and reports are fairly presented in conformity with generally accepted accounting principles issued by the American Institute of Certified Public Accountants.

(2) "Charitable organization" means a person who is or holds itself out to be a benevolent, educational, philanthropic, humane, patriotic, religious or eleemosynary organization, or any person who solicits or obtains contributions solicited from the public for charitable purposes, or any person who in any manner employs any appeal for contributions which may be reasonably interpreted to suggest that any part of those contributions will be used for charitable purposes. A chapter, branch, area, office or similar affiliate or any person soliciting contributions within the state for a charitable organization which has its principal place of business outside the state is a charitable organization for the purposes of this article.

(3) "Contribution" means the promise or grant of any money or property of any kind or value.

(4) "Financial review" means an examination of financial statements in accordance with generally accepted accounting principles issued by the American Institute of Certified Public Accountants, in which a certified public accountant has a reasonable basis for expressing limited assurance that the reviewed statements are free of material misstatements or false or missing information and are found to be accurate, complete and fairly presented to meet the requirements of the generally accepted accounting principles.

(5) "Solicit" and "solicitation" means the request or appeal, directly or indirectly, for any contribution on the plea or representation that the contribution will be used for a charitable purpose, including, without limitation, the following methods of requesting a contribution:

(A) Any oral or written request;

(B) Any announcement to the press, over the radio or television, or by telephone, electronic mail or messaging, electronic bulletin board, or Internet technology, concerning an appeal or campaign to which the public is requested to make a contribution for any charitable purpose connected therewith;

(C) The distribution, circulation, posting or publishing of any handbill, written advertisement or other publication which directly or by implication seeks to obtain public support; or

(D) The sale of, offer or attempt to sell, any advertisement, advertising space, subscription, ticket or any service or tangible item in connection with which any appeal is made for any charitable purpose or where the name of any charitable or civic organization is used or referred to in an appeal as an inducement or reason for making the sale, or when or where in connection with the sale, any statement is made that the whole or any part of the proceeds from the sale will be donated to any charitable purpose.

"Solicitation", as defined herein, occurs when the request is made, at the place the request is received, whether or not the person making the request actually receives any contribution.

(6) "Federated fund-raising organization" means a federation of independent charitable organizations which have voluntarily joined together, including, but not limited to, a united fund or community chest, for purposes of raising and distributing money for and among themselves and where membership does not confer operating authority and control of the individual agencies upon the federated group organization.

(7) "Parent organization" is that part of a charitable organization which coordinates, supervises or exercises control over policy, fund raising and expenditures, or assists, receives funds from or advises one or more chapters, branches or affiliates in the state.

(8) "Person" means any individual, organization, trust, foundation, group, association, partnership, corporation, society or any combination of them.

(9) "Professional fund-raising counsel" means any person who for a flat fixed fee under a written agreement plans, conducts, manages, carries on, advises or acts as a consultant, whether directly or indirectly, in connection with soliciting contributions for, or on behalf of any charitable organization but who actually solicits no contributions as a part of the services. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within the state is not a professional fund-raising counsel.

(10) "Professional solicitor" means any person who, for a financial or other consideration, solicits contributions for, or on behalf of a charitable organization, whether the solicitation is performed personally or through that person's agents, servants or employees specially employed by, or for a charitable organization, who are engaged in the solicitation of contributions under the direction of that person, or a person who plans, conducts, manages, carries on, advises or acts as a consultant to a charitable organization in connection with the solicitation of contributions but does not qualify as "professional fund-raising counsel" within the meaning of this article. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within the state is not a professional solicitor.

No attorney, investment counselor or banker, who advises any person to make a contribution to a charitable organization, is considered, as the result of the advice, a professional fund-raising counsel or a professional solicitor.


WVC 29 - 19 - 3 §29-19-3.
Repealed.

Acts, 1995 Reg. Sess., Ch. 234.


WVC 29 - 19 - 4 §29-19-4.
Repealed.

Acts, 1995 Reg. Sess., Ch. 234.


WVC 29 - 19 - 5 §29-19-5. Registration of charitable organizations; fee.
(a) Every charitable organization, except as provided in section six of this article, which intends to solicit contributions, donations or grants within this state or to have funds solicited or received on its behalf shall, prior to any solicitation, file a registration statement with the Secretary of State upon forms prescribed by him or her which shall be good for one full year and which shall be refiled in the next and each following year in which the charitable organization is engaged in solicitation activities. If an organization discontinues solicitation at any time after its last registration filing, then it shall file a registration statement reflecting its activities during its last fiscal year in which solicitation in West Virginia took place. It is the duty of the president, chairman or principal officer of the charitable organization to file the statements required under this article. The statements shall be sworn to and shall contain the following information:

(1) The name of the organization and the purpose for which it was organized;

(2) The principal address of the organization and the address of any offices in this state. If the organization does not maintain an office, the name and address of the person having custody of its financial records;

(3) The names and addresses of any chapters, branches or affiliates in this state;

(4) The place where and the date when the organization was legally established and the form of its organization;

(5) The names and addresses of the officers, directors, trustees and the principal salaried executive staff officer;

(6) A copy of a balance sheet and a statement or report of income and expenses for the organization's immediately preceding fiscal year or a financial statement reporting information showing the kind and amount of funds raised during the preceding fiscal year, the costs and expenses incidental to the fundraising and showing how the funds were disbursed or allocated for the same fiscal year: Provided, That in addition to the financial documents required by this subdivision:

(A) Charitable organizations raising more than $200,000 per year in contributions, excluding grants from governmental agencies or private foundations, shall submit a report of an audit by an independent certified public accountant; and

(B) Charitable organizations raising more than $100,000 per year but less than $200,001 per year in contributions, excluding grants from governmental agencies or private foundations, shall submit a statement of financial review by an independent certified public accountant. Organizations are required to report the amount of money received in the state and the amount spent in the state for charitable purposes;

(7) A copy of any determination of the organization's tax exempt status under the provisions of 26 U.S.C. §501(c)(3) and a copy of the last filed Internal Revenue Service Form 990 and Schedule A for every charitable organization and any parent organization;

(8) Whether the organization intends to solicit contributions, donations or grants from the public directly or have other solicitation done on its behalf by others;

(9) Whether the organization is authorized by any other governmental authority to solicit contributions, donations or grants and whether it is or has ever been enjoined by any court from soliciting contributions;

(10) The general purpose or purposes for which the contributions to be solicited shall be used;

(11) The name or names under which it intends to solicit contributions;

(12) The names of the individuals or officers of the organization who will have final responsibility for the custody of the contributions;

(13) The names of the individuals or officers of the organization responsible for the final distribution of the contributions; and

(14) Copies of all contract documentation from professional fund-raising counsels and professional solicitors as provided in subsection (d), section seven of this article.

(b) Each chapter, branch or affiliate, except an independent member agency of a federated fund-raising organization, may separately report the information required by this section or report the information to its parent organization which shall then furnish the information regarding its West Virginia affiliates, chapters and branches in a consolidated form to the Secretary of State. An independent member agency of a federated fund-raising organization, as defined in section two of this article, shall comply with the provisions of this article independently. Each organization shall file a separate registration form for each name under which funds will be solicited.

(c) The registration forms and any other documents prescribed by the Secretary of State shall be signed by an authorized officer or by an independent public accountant and by the chief fiscal officer of the charitable organization and shall be verified under oath.

(d) Every charitable organization receiving less than $1 million during any year which submits an independent registration to the Secretary of State shall pay an annual registration fee of $15; every charitable organization collecting more than $1 million during one year which submits an independent registration to the Secretary of State shall pay an annual registration fee of $50; and a parent organization filing on behalf of one or more chapters, branches or affiliates or a single organization filing under different names shall pay a single annual registration fee of $50 for itself and the chapters, branches or affiliates included in the registration statement. All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the services fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

(e) For good cause shown, the Secretary of State may extend the due date for the annual filing of a registration statement or report by a charitable organization or a professional fundraiser for a period not to exceed ninety days. During that period, the previously filed registration statement or report of the charitable organization which has been granted the extension remains in effect.

(f) In addition to the registration fee required by this section, a charitable organization or professional fundraiser, or both, which fails to file a registration statement or report by the original or extended due date for filing as required by this section shall, for each month or part of the month thereafter in which the registration statement or report is not filed, pay an additional fee of $25: Provided, That the total amount of the additional fees for a registration statement or report required to be filed in any one year may not exceed $500. All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the Office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.


WVC 29 - 19 - 6 §29-19-6. Certain persons and organizations exempt from registration.
The following charitable organizations are not required to file an annual registration statement with the Secretary of State:

(1) Educational institutions, the curriculums of which, in whole or in part, are registered or approved by the State Board of Education, either directly or by acceptance of accreditation by an accrediting body recognized by the State Board of Education; and any auxiliary associations, foundations and support groups which are directly responsible to the educational institutions;

(2) Persons requesting contributions for the relief of any individual specified by name at the time of the solicitation when all of the contributions collected without any deductions whatsoever are turned over to the named beneficiary for his or her use;

(3) Hospitals and licensed nursing homes which are nonprofit and charitable;

(4) Organizations which solicit only within the membership of the organization by the members thereof: Provided, That the term "membership" does not include those persons who are granted a membership upon making a contribution as the result of solicitation. For the purpose of this section, "member" means a person having membership in a nonprofit corporation, or other organization, in accordance with the provisions of its articles of incorporation, bylaws or other instruments creating its form and organization; and having bona fide rights and privileges in the organization, including the right to vote, to elect officers, directors and issues, to hold office or otherwise as ordinarily conferred on members of the organizations;

(5) Churches, synagogues, associations or conventions of churches, religious orders or religious organizations that are an integral part of a church which qualifies as tax exempt under the provisions of 26 U.S.C. §501(c)(3) and which qualifies as being exempt from filing an annual return under the provisions of 26 U.S.C. §6033;

(6) Any person, firm, corporation or organization that sponsors a single fund-raising event for the benefit of a named charitable organization where all or part of the funds collected are donated to the named charitable organization: Provided, That the named charitable organization receiving the funds is registered pursuant to this article, reports each of these donations individually and certifies that no funds were withheld by the organization that solicited the funds;

(7) Any charitable organization that does not employ a professional solicitor or fundraiser and does not intend to solicit and receive and does not actually raise or receive contributions, donations or grants from the public in excess of $25,000 during a calendar year.

Charitable organizations which do not intend to solicit and receive contributions, donations or grants in excess of $25,000, but do receive in excess of that amount from the public, shall file the annual registration statement within thirty days after contributions are in excess of $25,000.


WVC 29 - 19 - 7 §29-19-7. Filing of solicitation contracts.

(a) Every written contract or agreement between professional fund-raising counsel and a charitable organization shall be filed by the professional fund-raising counsel with the secretary of state within ten days after said parties have entered into such contract or agreement.

(b) Every written contract or agreement between a professional solicitor and a charitable organization shall be filed by the professional solicitor with the secretary of state within ten days after said parties have entered into such agreement or contract. In the absence of a written contract or agreement between a professional solicitor and a charitable organization, a written statement of the nature of the arrangement to prevail in lieu thereof shall be filed.

(c) Each statement must clearly provide the amount, percentage or other method of compensation to be received by the professional solicitor or professional fund-raising counsel as a result of the contract or arrangement.

(d) Each charitable organization, as part of its registration as required in section five of this article, shall file with the secretary of state copies of all documents reflecting the final settlement amounts for a solicitation contract or, in the case of multiple year contracts, documents reflecting the total amount of money, funds or other property raised and expenses incurred by the professional fund-raising counsel or professional solicitor in a fiscal year.

(e) For purposes of this section, the total moneys, funds, pledges or other property raised or received shall not include the actual cost to the charitable organization or professional solicitor of goods sold or service provided to the public in connection with the soliciting of contributions.


WVC 29 - 19 - 8 §29-19-8. Limitations on activities of charitable organizations.

No charitable organizations subject to this article may solicit funds from the public except for charitable purposes or expend funds raised for charitable purposes not stated in its solicitation materials.

All registered charitable organizations and their professional fund raisers and solicitors are required to disclose in writing: (1) The name of a representative of the charitable organization to whom inquiries can be made; (2) the name of the charitable organization; (3) the purpose of the solicitation; (4) upon request of the person solicited, the estimated percentage of the money collected which will be applied to the cost of solicitation and administration or how much of the money collected will be applied directly for the charitable purpose; and (5) the number of the raffle, bingo or other such state permit used for fund raising.

Every printed solicitation shall include the following statement: "West Virginia residents may obtain a summary of the registration and financial documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305. Registration does not imply endorsement."

The disclosure statement shall be conspicuously displayed on

any written or printed solicitation. Where the solicitation consists of more than one piece, the disclosure statement shall be displayed on a prominent part of the solicitation materials.

Organizations applying for registration shall be reviewed according to the following standards:

(a) Charitable organizations shall include in each solicitation a clear description of programs for which funds are requested and source from which written information is available pursuant to section thirteen of this article. Expenditures shall be related in a primary degree to stated purpose (programs and activities) described in solicitations and in accordance with reasonable donor expectations. For purposes of this section, reasonable donor expectation requires that a charitable organization shall not expend funds in ways that are not apparent to a donor from the text of the presentation as being obvious or potential uses for his contribution. The reasonable donor expectation standard shall apply to all expenditures made by the charitable organization when compared to the solicitation materials used.

(b) Charitable organizations shall establish and exercise controls over fund-raising activities conducted for the organizations' benefit, including written contracts and agreements and assurance of fund-raising activities without excessive pressure.

(c) Each charitable organization shall establish an independent governing board which shall oversee the expenditures, policies, programs and purposes of the charity's activities. The independent governing board shall not delegate its oversight control or authority to any other person(s) or organization.

(d) Members of the independent governing board and officers of the organization shall avoid transactions involving conflict of interest on their part. A charitable organization may enter into transactions involving parties related by blood, marriage or business association only if: (1) Where a majority of the independent governing board has survived disqualification over conflicts of interest to approve the action; and (2) where the related parties or potential conflict is fully disclosed in the application for registration; and (3) where the transaction is fair and reasonable for the organization.

(e) No charitable organization, professional fund raiser or other person soliciting contributions for or on behalf of a charitable organization may use a name, symbol or statement so closely related or similar to that used by another charitable organization or governmental agency that the use thereof would tend to confuse or mislead the public.


WVC 29 - 19 - 9 §29-19-9. Registration of professional fund-raising counsel and professional solicitor; bonds; records; books.
(a) No person may act as a professional fund-raising counsel or professional solicitor for a charitable organization subject to the provisions of this article unless he or she has first registered with the secretary of state. Applications for the registration shall be in writing under oath or affirmation in the form prescribed by the secretary of state and contain the information he or she requires. The application for registration by professional fund-raising counsel or professional solicitor shall be accompanied by an annual fee in the sum of one hundred dollars. A partnership or corporation, which is a professional fund-raising counsel or professional solicitor, may register for and pay a single fee on behalf of all its members, officers, agents and employees. However, the names and addresses of all officers, agents and employees of professional fund-raising counsel and all professional solicitors, their officers, agents, servants or employees employed to work under the direction of a professional solicitor shall be listed in the application. All fees and moneys collected by the secretary of state pursuant to the provisions of this article shall be deposited by the secretary of state as follows: One-half shall be deposited in the state general revenue fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the secretary of state. The secretary of state shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.

(b) The applicant shall, at the time of the making of an application, file with and have approved by the secretary of state a bond in which the applicant shall be the principal obligor in the sum of ten thousand dollars and which shall have one or more sureties satisfactory to the secretary of state whose liability in the aggregate as such sureties will at least equal the said sum and maintain the bond in effect so long as a registration is in effect. The bond shall run to the state for the use of the secretary of state and any person who may have a cause of action against the obligor of the bonds for any losses resulting from malfeasance, nonfeasance or misfeasance in the conduct of solicitation activities. A partnership or corporation which is a professional fund-raising counsel or professional solicitor may file a consolidated bond on behalf of all its members, officers and employees.

(c) Each registration is valid throughout the state for a period of one year and may be renewed for additional one-year periods upon written application under oath in the form prescribed by the secretary of state and the payment of the fee prescribed in this section.

(d) The secretary of state or his or her designee shall examine each application and if he or she finds it to be in conformity with the requirements of this article and all relevant rules and the registrant has complied with the requirements of this article and all relevant rules, he or she shall approve the registration.


WVC 29 - 19 - 10 §29-19-10. Information filed to become public records.
Registration statements and applications, reports, professional fund-raising counsel contracts or professional solicitor contracts, and all other documents and information required to be filed under this article or by the secretary of state shall become public records in the office of the secretary of state, and shall be open to the general public for inspection at such time and under such conditions as the secretary of state may prescribe.


WVC 29 - 19 - 11 §29-19-11. Records to be kept by charitable organizations,

professional fund-raising counsel and professional solicitors.

Every charitable organization, professional fund raising counsel and professional solicitor subject to the provisions of this article shall, in accordance with the rules prescribed by the secretary of state, keep true fiscal records as to its activities in this state as may be covered by this article in such form as will enable it accurately to provide the information required by this article. Upon demand, such records shall be made available to the secretary of state or the attorney general for inspection. Such records shall be retained for a period of at least three years after the end of the period of registration to which they relate.


WVC 29 - 19 - 12 §29-19-12. Reciprocal agreements.

The secretary of state may enter into reciprocal agreements with the appropriate authority of any other state for the purpose of exchanging information with respect to charitable organizations, professional fund-raising counsel and professional solicitors. Pursuant to such agreements the secretary of state may accept information filed by a charitable organization, professional fund-raising counsel or professional solicitor with the appropriate authority of another state in lieu of the information required to be filed in accordance with the provisions of this article, if such information is substantially similar to the information required under this article.


WVC 29 - 19 - 13 §29-19-13. Prohibited acts.

(a) No charitable organization, professional fund-raising counsel or professional solicitor subject to the provisions of this article may use or exploit the fact of registration so as to lead the public to believe that such registration in any manner constitutes an endorsement or approval by the state.

(b) No person may, in connection with the solicitation of contributions for or the sale of goods or services of a person other than a charitable organization, misrepresent to or mislead anyone by any manner, means, practice or device whatsoever, to believe that the person on whose behalf such solicitation or sale is being conducted is a charitable organization or that the proceeds of such solicitation or sale will be used for charitable purposes, if such is not the fact.

(c) No person may, in connection with the solicitation of contributions for charitable purposes, misrepresent, mislead, or omit information concerning how the proceeds will be used. Proceeds gathered from any given solicitation must be used for the charitable purposes represented in the materials sent or the presentation given by the solicitor. Violations of this section will be considered to be both a violation of the reasonable donor expectation standard of section eight and may be subject to prosecution for fraud pursuant to section fifteen of this article.

(d) No person may in connection with the solicitation of contributions or the sale of goods or services for charitable purposes represent to or lead anyone by any manner, means, practice or device whatsoever, to believe that any other person sponsors or endorses such solicitation of contributions, sale of goods or services for charitable purposes or approves of such charitable purposes of a charitable organization connected therewith when such other person has not given consent to the use of his or her name for these purposes: Provided, That any member of the board of directors or trustees of a charitable organization or any other person who has agreed either to serve or to participate in any voluntary capacity in the campaign shall be deemed thereby to have given his or her consent to the use of his or her name in said campaign.

(e) No person may make any representation that he or she is soliciting contributions for or on behalf of a charitable organization or shall use or display any emblem, device or printed matter belonging to or associated with a charitable organization for the purpose of soliciting or inducing contributions from the public without first being authorized to do so by the charitable organization.

(f) No professional solicitor may solicit in the name of or on behalf of any charitable organization unless such solicitor:

Has obtained the written authorization of two officers of such organization, a copy of which shall be filed with the secretary of state. Such written authorization shall bear the signature of the solicitor and shall expressly state on its face the period for which it is valid, which shall not exceed one year from the date issued.


WVC 29 - 19 - 14 §29-19-14. Nonresident charitable organizations, professional fund-raising counsel and solicitors; designation of secretary of state as agent for service of process; notice of such service by attorney general.
Any charitable organization or professional fund-raising counsel or professional solicitor having its or his or her principal place of business without the state, or organized under and by virtue of the laws of a foreign state, which or who shall solicit contributions from people in this state, is subject to the provisions of this article and shall be deemed to have irrevocably appointed the secretary of state as its or his or her agent upon whom may be served any summons, subpoena, subpoena duces tecum or other process directed to such charitable organization, professional fund-raising counsel or professional solicitor or any partner, principal officer or director thereof in any action or proceeding brought under the provisions of this article. Service of such process upon the secretary of state shall be made by personally delivering to and leaving with him a copy thereof along with the fee required by section two, article one, chapter fifty-nine of this code, and such service shall be sufficient service: Provided, That notice of such service and a copy of such process are forthwith sent by the secretary of state to such charitable organization or professional fund-raising counsel or professional solicitor by registered or certified mail with return receipt requested at its or his or her office, as set forth in theregistration form required to be filed with the secretary of state pursuant to this article or in default of the filing of such form, at the last address known to the secretary of state.


WVC 29 - 19 - 15 §29-19-15. Enforcement and penalties.

(a) The secretary of state, upon his or her own motion, or upon complaint of any person, may, if he or she finds reasonable ground to suspect a violation, investigate any charitable organization, professional fund-raising counsel or professional solicitor to determine whether such charitable organization, professional fund-raising counsel or professional solicitor has violated the provisions of this article or has filed any application or other information required under this article which contains false or misleading statements.

(b) In addition to the foregoing, any person who willfully and knowingly violates any provision of this article, or who shall willfully and knowingly give false or incorrect information to the secretary of state in filing statements or reports required by this article, whether such report or statement is verified or not, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined upon first conviction thereof in an amount not less than one hundred dollars nor more than five hundred dollars, or be imprisoned in the county jail for not more than six months, or be both fined and imprisoned, and for the second and any subsequent offense to pay a fine of not less than five hundred dollars nor more than one thousand dollars, or be imprisoned for not more than one year, or be both fined and imprisoned.

(c) Whenever the secretary of state, attorney general or any prosecuting attorney has reason to believe that any charitable organization, professional fund-raising counsel or professional solicitor is operating in violation of the provisions of this article, the secretary of state, attorney general or prosecuting attorney may bring an action in the name of the state against such charitable organization and its officers, such professional fund-raising counsel or professional solicitor or any other person who has violated this article in the circuit court of the county wherein the cause of action arises to enjoin such charitable organization or professional fund-raising counsel or professional solicitor or other person from continuing such violation, solicitation or collection, or from engaging therein or from doing any acts in furtherance thereof and for such other relief as the court deems appropriate.

(d) In addition to the foregoing, any charitable organization, professional fund-raising counsel or professional solicitor who willfully and knowingly violates any provisions of this article by employing any device, scheme, artifice, false representation or promise with intent to defraud or obtain money or other property shall be guilty of a misdemeanor, and, upon conviction thereof, for a first offense, shall be fined not less than one hundred dollars nor more than five hundred dollars, or be confined in the county jail not more than six months, or be both fined and imprisoned; and for a second and any subsequent offense, shall be fined not less than five hundred dollars nor more than one thousand dollars, or confined in the county jail not more than one year, or be both fined and imprisoned.

At any proceeding under this section, the court shall also determine whether it is possible to return to the contributors the contributions which were thereby obtained.

If the court finds that the said contributions are readily returnable to the original contributors, it may order the money to be placed in the custody and control of a general receiver, appointed pursuant to the provisions of article six, chapter fifty-one of this code, who shall be responsible for its proper disbursement to such contributors.

If the court finds that: (1) It is impossible to obtain the names of over one half the persons who were solicited and in violation of this article, or (2) if the majority of individual contributions was of an amount less than five dollars, or (3) if the cost to the state of returning these contributions is equal to or more than the total sum to be refunded, the court shall order the money to be placed in the custody and control of a general receiver appointed pursuant to the provisions of article six,chapter fifty-one of this code. The general receiver shall maintain this money pursuant to the provisions of article eight, chapter thirty-six of this code.


WVC 29 - 19 - 15 A §29-19-15a. Private actions and class actions.

(a) Any person who suffers injury or damages as a result of acts or practices in violation of the provisions of this article may bring a civil action against the charitable organization, professional fund raiser, or professional solicitor engaged in such acts or practices. The person may recover such damages sustained as a result of such acts and practices, costs incurred, and reasonable attorneys' fees. Punitive damages may be awarded in cases of intentional violations of this article.

(b) The attorney general, or secretary of state, in a representative capacity on behalf of any person entitled to bring an action under this article, or any person entitled to bring an action under this article, may institute a class action, pursuant to the applicable rules of civil procedure governing class actions, for the recovery of damages.


WVC 29 - 19 - 15 B §29-19-15b. Civil penalty for intentional violations.
In any action brought pursuant to the provisions of this article, if the court finds that intentional violations have occurred, the state, upon petition to the court and in addition to any damages awarded any party or parties, may recover attorney fees and a civil penalty not exceeding three times the amount collected in that civil action. Of any funds recovered as provided for in this section and any other funds recovered by the state as the result of an award for damages, penalties or settlements in enforcing this article, one-half shall be deposited in the state general revenue fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operations of the office of the secretary of state. Any balance remaining on the thirtieth day of June, two thousand one, in the existing special revenue account entitled "charitable organization fund" as established by chapter thirty-four, acts of the Legislature, regular session, one thousand nine hundred ninety-two, shall be transferred to the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the secretary of state. The secretary of state shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.


WVC 29 - 19 - 16 §29-19-16.
Repealed.

Acts, 1995 Reg. Sess., Ch. 234.


WVC 29 - 20 - ARTICLE 20. WOMEN'S COMMISSION.


WVC 29 - 20 - 1 §29-20-1. Membership; appointment and terms of members; organization; reimbursement for expenses.
The West Virginia commission on the status of women is hereby abolished, and there is hereby continued within the department of health and human resources the West Virginia women's commission, to consist of eighteen members, seven of whom shall be ex officio members, not entitled to vote: The attorney general, the state superintendent of schools, the commissioner of labor, the commissioner of the bureau of human resources of the department of health and human resources, the director of the human rights commission, the director of the division of personnel and the chancellor of the board of directors of the state college system. Each ex officio member may designate one representative employed by his or her department to meet with the commission in his or her absence. The governor shall appoint the additional eleven members, by and with the advice and consent of the Senate, from among the citizens of the state. The governor shall designate the chairman and vice chairman of the commission and the commission may elect such other officers as it deems necessary. The members shall serve a term beginning the first day of July, one thousand nine hundred seventy-seven, three to serve for a term of one year, four to serve for a term of two years and the remaining four to serve for a term of three years. The successors of the members initially appointed as provided herein shall be appointed for a term of three years each in the same manner as the members initially appointed under this article, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of such term. Each member shall serve until the appointment and qualification of his or her successor.

No member may receive any salary for his or her services, but each may be reimbursed for actual and necessary expenses incurred in the performance of his or her duties out of funds received by the commission under section four of this article, except that in the event the expenses are paid, or are to be paid, by a third party, the members shall not be reimbursed by the commission.


WVC 29 - 20 - 2 §29-20-2. Powers and duties of commission.

It is the duty of the commission:

(a) To review and study the status of women in this state;

(b) To recommend methods of overcoming discrimination against women in public and private employment and in the exercise of their civil and political rights;

(c) To promote more effective methods for enabling women to develop their skills, to continue their education and to be retrained;

(d) To strengthen home life by directing attention to critical problems confronting women as wives, mothers, homemakers and workers;

(e) To make surveys in the fields of, but not limited to, education, social services, labor laws and employment policies, law enforcement, health, new and expanded services of benefit to women, legal rights, family relations and volunteer services;

(f) To secure appropriate recognition of women's accomplishments and contributions to this state;

(g) To disseminate information for the purpose of educating the public as to the existence and functions of the commission and as to matters of general beneficial interest to women; and

(h) To advise, consult and cooperate with other offices of the department of health and human resources and other agencies of state government, and to receive assistance therefrom, in the development of activities and programs of beneficial interest to women and on matters relating generally to women.


WVC 29 - 20 - 3 §29-20-3. Commission administrative personnel.

The commission may, consistent with state personnel procedures and with the approval of the secretary of the department of health and human resources or his or her designee, appoint an executive director, who shall act as the chief administrative officer of the commission, in addition to such other duties as he or she may be assigned. The commission may also, consistent with state personnel procedures and with the approval of the secretary of the department of health and human resources or his or her designee, appoint such other personnel as may be deemed necessary to accomplish its objectives. All persons so employed shall be paid from funds received by the department of health and human resources or the commission under section four of this article.


WVC 29 - 20 - 4 §29-20-4. Power of commission to accept funds.

The commission, or the department of health and human resources on behalf of the commission, may accept gifts, grants and bequests of funds from individuals, foundations, corporations, the federal government, governmental agencies and other organizations or institutions; make and sign any agreements and do and perform any acts that may be necessary to carry out the purposes of this article.


WVC 29 - 20 - 5 §29-20-5. Rules and regulations.
The commission shall adopt rules and regulations concerning the operation of the commission, the functions and responsibilities of its officers and employees and such other matters as may be necessary to carry out the purpose of this article, subject to the applicable provisions of chapter twenty- nine-a of this code.


WVC 29 - 20 - 6 §29-20-6. Annual report.

The commission shall, with the approval of the secretary of the department of health and human resources or his or her designee, submit an annual report to the Legislature and the governor, including recommendations based on its studies.


WVC 29 - 20 - 7 §29-20-7.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 21 - ARTICLE 21. PUBLIC DEFENDER SERVICES.


WVC 29 - 21 - 1 §29-21-1. Legislative findings; purpose.

The Legislature finds and declares that in certain proceedings the state is required to provide high quality legal assistance to indigent persons who would be otherwise unable to afford adequate legal counsel; that providing legal representation to those who face an economic barrier to adequate legal counsel will serve the ends of justice in accordance with rights and privileges guaranteed to all citizens by the constitution of the United States of America and the constitution of the state of West Virginia; that the availability of quality legal assistance reaffirms the faith of our citizens in our government of laws; that the present system which utilizes appointed counsel is not operating satisfactorily in some areas of this state and the Legislature is presently unable to determine what system or systems will provide the most efficient means for providing legal representation; that there is a need to explore alternative methods of delivering legal assistance, including the use of salaried public defenders complemented by private panel attorneys; that innovative programs and pilot projects as well as a continuation of the present appointed counsel system are necessary in separate areas of the state to provide information and experience upon which to base future legislative action.


WVC 29 - 21 - 2 §29-21-2. Definitions.

As used in this article, the following words and phrases are hereby defined:

(1) "Eligible client": Any person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein;

(2) "Eligible proceeding": Criminal charges which may result in incarceration; juvenile proceedings; proceedings to revoke parole or probation if the revocation may result in incarceration; contempt of court; child abuse and neglect proceedings which may result in a termination of parental rights; mental hygiene commitment proceedings; extradition proceedings; proceedings which are ancillary to an eligible proceeding, including, but not limited to, proceedings to enhance sentences brought pursuant to sections eighteen and nineteen, article eleven, chapter sixty-one of this code, forfeiture proceedings brought pursuant to article seven, chapter sixty-a of this code, and proceedings brought to obtain extraordinary remedies; and appeals from or post-conviction challenges to the final judgment in an eligible proceeding. Legal representation provided pursuant to the provisions of this article is limited to the court system of the state of West Virginia, but does not include representation in municipal courts unless the accused is at risk of incarceration;

(3) "Legal representation": The provision of any legal services or legal assistance as counsel or guardian ad litem consistent with the purposes and provisions of this article;

(4) "Private practice of law": The provision of legal representation by a public defender or assistant public defender to a client who is not entitled to receive legal representation under the provisions of this article, but does not include, among other activities, teaching;

(5) "Public defender": The staff attorney employed on a full-time basis by a public defender corporation who, in addition to providing direct representation to eligible clients, has administrative responsibility for the operation of the public defender corporation. The public defender may be a part-time employee if the board of directors of the public defender corporation finds efficient operation of the corporation does not require a full-time attorney and the executive director approves such part-time employment;

(6) "Assistant public defender": A staff attorney providing direct representation to eligible clients whose salary and status as a full-time or part-time employee are fixed by the board of directors of the public defender corporation;

(7) "Public defender corporation": A corporation created under section eight of this article for the sole purpose ofproviding legal representation to eligible clients; and

(8) "Public defender office": An office operated by a public defender corporation to provide legal representation under the provisions of this article.


WVC 29 - 21 - 3 §29-21-3. Establishment of public defender services.
There is hereby created an executive agency known as public defender services. The agency shall administer, coordinate and evaluate programs by which the state provides legal representation to indigent persons, monitor the progress of various delivery systems and recommend improvements. The agency shall maintain its office at the state capitol.


WVC 29 - 21 - 3 A §29-21-3a.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 21 - 3 B §29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening, closing or merging of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.

(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, and the following members appointed by the Governor:

(1) One former or retired circuit judge;

(2) Three lawyers, one from each congressional district, who have significant experience in the defense of criminal cases or have demonstrated a strong commitment to quality representation of indigent defendants;

(3) One current chief public defender; and

(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent;

(5) One person who is a member of an organization that advocates on behalf of people with mental illness and developmental disabilities; and

(6) One attorney with significant experience in the defense of juvenile delinquency and abuse and neglect cases.

(c) The commission shall meet at the times and places specified by the call of the chair: Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

(d) Of the initial appointments made to the commission, two shall be for a term ending one year after the effective date of this section, two for a term ending two years after the effective date of this section, two for a term ending three years after the effective date of this section. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal in the membership of this commission, it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as original appointments. No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at least two years have elapsed after the completion of a second successive term.

(e) The appointed members of the commission serve four-year terms that shall coincide with the term of the Governor.

(f) The commission has the following powers and duties:

(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders and staff;

(2) To explore opportunities related to the training of appointed panel attorneys;

(3) To evaluate, on an annual basis, the compensation and caseloads of public defenders and appointed panel attorneys;

(4) To develop standards for providing and compensating expert witnesses, investigators and other persons who provide services related to legal representation under this article;

(5) To study, monitor and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;

(6) To study the feasibility and need of creating additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article;

(7) To study the potential for the dissolution of public defender corporations;

(8) To study, monitor, evaluate and make recommendations regarding the training, experience and background necessary for a public defender or panel attorney to competently represent indigent defendants in capital cases; and

(9) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:

(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;

(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and

(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.

(g) On or before the fifteenth day of January, two thousand nine the commission shall report to the Legislature its findings and recommendations on the feasibility and need for the creation of additional public defender corporations; the activation of public defender corporations; the formation of multicircuit or regional public defender corporations; or the dissolution of public defender corporations in accordance with the provisions of section eight of this article.


WVC 29 - 21 - 4 §29-21-4. Purpose and duties of public defender services.

The agency shall have as its principal purpose the development and improvement of programs by which the state provides legal representation to indigent persons.


WVC 29 - 21 - 5 §29-21-5. Executive director.

(a) The governor shall appoint, by and with the advice and consent of the Senate, the executive director of public defender services, who shall serve at the will and pleasure of the governor. The executive director shall be a qualified administrator as determined by the governor, and shall be a member of the bar of the supreme court of appeals. In addition to the executive director there shall be such other employees as the executive director determines to be necessary. The executive director shall have the authority to promulgate rules, and shall have such other authority and perform such duties as may be required or necessary to effectuate this article. The executive director shall provide supervision and direction to the other agency employees in the performance of their duties.

(b) The executive director's annual salary shall be as determined by the Legislature.


WVC 29 - 21 - 6 §29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations for the purpose of providing legal representation under this article and may make any other grants and contracts that are necessary to carry out the purposes and provisions of this article.

(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.

(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance related to the delivery of legal representation; and to engage in research, except that broad general, legal or policy research unrelated to direct representation of eligible clients may not be undertaken.

(d) The agency shall establish and the executive director or his or her designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article. The accounting and auditing division shall require each public defender corporation to submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time used in administration of the respective offices, so as to compare the time to similar time expended in nonpublic law offices for similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. This assistance shall include, but not be limited to, budget preparation and statistical analysis.

(e) The agency shall establish and the executive director or his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain records of representation of eligible clients for record purposes only.


WVC 29 - 21 - 7 §29-21-7. Criminal law research center established; functions.

(a) Within the agency, there shall be a division known as the criminal law research center which may:

(1) Undertake research, studies and analyses and act as a central repository, clearinghouse and disseminator of research materials;

(2) Prepare and distribute a criminal law manual and other materials and establish and implement standard and specialized training programs for attorneys practicing criminal law;

(3) Provide and coordinate continuing legal education programs and services for attorneys practicing criminal law; and

(4) Prepare, supplement and disseminate indices and digests of decisions of the West Virginia supreme court of appeals and other courts, statutes and other legal authorities relating to criminal law.

(b) The services of the criminal law research center shall be offered at reasonable rates or by subscription to prosecuting attorneys and their professional staffs, panel attorneys, and private attorneys engaged in the practice of criminal law. The services may be provided to public defender corporations, public defenders and assistant public defenders at reduced rates.


WVC 29 - 21 - 8 §29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation, merger or dissolution of a public defender corporation in a judicial circuit where the creation, merger or dissolution of such a public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation, merger or dissolution of a public defender corporation in accordance with this subsection, the commission shall provide a report to the Legislature pursuant to subsection (g), section three-b of this article for approval of the creation, merger, or dissolution of any public defender corporation.

(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.

(b) If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial consideration to the recommendation of the judge of a single-judge circuit or the chief judge of a multi-judge circuit.


WVC 29 - 21 - 9 §29-21-9. Panel attorneys.

          (a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who are available to serve as counsel for eligible clients. An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An agreement to accept cases generally or certain types of cases particularly may not prevent a panel attorney from declining an appointment in a specific case.

          (b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge: Provided, That in family court contempt cases, the family court judge shall appoint an attorney-at-law when required, in the following order of preference:

          (1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless an appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation;

          (2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel;

          (3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;

          (4) If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment;

          (5) If the adjoining public defender office does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or

          (6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.

          (c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.
WVC 29 - 21 - 10 §29-21-10.
Repealed.

Acts, 2008 Reg. Sess., Ch. 117.


WVC 29 - 21 - 11 §29-21-11.
Repealed.

Acts, 2008 Reg. Sess., Ch. 117.


WVC 29 - 21 - 12 §29-21-12.
Repealed.

Acts, 2008 Reg. Sess., Ch. 117.


WVC 29 - 21 - 13 §29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.
(a) On or before the first day of May of each year, each active public defender corporation shall submit to the executive director and the commission a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.

(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost effective representation.

(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.

(d) All recipients of funding under this article shall maintain such records as required by the executive director.


WVC 29 - 21 - 13 A §29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension: Provided, That claims where the last date of service occurred prior to the first day of July, two thousand eight, shall be rejected unless submitted prior to the first day of January, two thousand nine.

The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.

(b) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.

(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.

(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:

(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.

(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master or other judicial officer.

(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.

(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of one thousand five hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.

Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the State Auditor:

(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in section four, article seven, chapter fifty-one of this code.

(B) (i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court trial, where such hearing or trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.

(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee.

(iii) Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.

(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court trials is limited to one dollar per page.

(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.

(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.

(f) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.

(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.

(h) Vouchers submitted under this section after the first day of July, two thousand eight, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.

(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.


WVC 29 - 21 - 14 §29-21-14. Limitation on use of funds; exceptions.

(a) Funds made available by the agency to public defender corporations or other entities under this article, either by loan, grant or contract, and funds used for payments to panel attorneys shall be used only to provide legal representation for eligible clients involved in proceedings defined by this article as eligible proceedings.

(b) Funds received from any source other than the agency shall not be used by a public defender corporation for purposes prohibited by this article.


WVC 29 - 21 - 14 A §29-21-14a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.


WVC 29 - 21 - 14 B §29-21-14b.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.


WVC 29 - 21 - 15 §29-21-15. Public defender corporations -- Board of directors.
(a) The governing body of each public defender corporation shall be a board of directors consisting of persons who are residents of the area to be served by the public defender corporation.

(1) In multi-county circuits, and in the case of multi-circuit or regional corporations, the county commission of each county within the area served shall appoint a director, who shall not be an attorney-at-law. The president of each county bar association within the area served shall appoint a director, who shall be an attorney-at-law: Provided, That in a county where there is not an organized and active bar association, the circuit court shall convene a meeting of the members of the bar of the court resident within the county and such members of the bar shall elect one of their number as a director. The governor shall appoint one director, who shall serve as chairman, who may be an attorney-at-law, unless such appointment would result in there being an even number of directors, in which event the governor shall appoint two directors, one of whom may be an attorney-at-law. The governor's appointees shall serve four-year terms which terms shall coincide with the term of the governor. Appointments may be made for unexpired terms as may be necessary. Other board members' terms shall be as determined by the board.

(2) In single-county circuits, the manner of selecting directors shall be the same as that described in subdivision (1) of this subsection, except that the county commission shall appoint two directors rather than one, and the bar shall appoint two directors rather than one.

(b) The board of directors shall have at least four meetings a year. Timely and effective prior public notice of all meetings shall be given pursuant to rules promulgated in accordance with the provisions of section three, article nine-a, chapter six of this code, and all meetings shall be public except for those concerned with matters properly discussed in executive session.

(c) The board of directors shall establish and enforce broad policies governing the operation of the public defender corporation but shall not interfere with any attorney's professional responsibilities to clients. The duties of the board of directors shall include, but not be limited to, the following:

(1) Appointment of the public defender and any assistant public defenders as may be necessary to enable the public defender corporation to provide legal representation to eligible clients; and

(2) Approval of the public defender corporation's budget and the fixing of professional and clerical salaries: Provided, That the compensation paid to any part-time public defender, part-timeassistant public defender or other part-time employee shall not include benefits such as retirement, health insurance or paid leave time for illness or vacation unless public defender services has certified in writing to the board of directors that there exists sufficient funding to provide such benefits and the board of directors authorizes such benefits to be included in the compensation; and

(3) Removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance.

(d) To the extent that the provisions of chapter thirty-one of this code regarding nonprofit corporations are not inconsistent with this article, the provisions of said chapter shall be applicable to the board of directors of the public defender corporation.

(e) While serving on the board of directors, no member may receive compensation from the public defender corporation, but a member may receive payment for normal travel and other out-of-pocket expenses required for fulfillment of the obligations of membership and may accept appointments to represent eligible clients so long as he or she does not discuss a particular case with any public defender, assistant public defender or other employee of the office governed by the board. Directors may not serve as cocounsel with the public defender or assistant publicdefender in any matter.


WVC 29 - 21 - 16 §29-21-16. Determination of maximum income levels; eligibility guidelines; use of form affidavit; inquiry by court; denial of services; repayment; limitation on remedies against affiant.

(a) The agency shall establish, and periodically review and update financial guidelines for determining eligibility for legal representation made available under the provisions of this article. The agency shall adopt a financial affidavit form for use by persons seeking legal representation made available under the provisions of this article.

(b) All persons seeking legal representation made available under the provisions of this article shall complete the agency's financial affidavit form, which shall be considered as an application for the provision of publicly funded legal representation.

(c) Any juvenile shall have the right to be effectively represented by counsel at all stages of proceedings brought under the provisions of article five, chapter forty-nine of this code. If the child advises the court of his or her inability to pay for counsel, the court shall require the child's parent or custodian to execute a financial affidavit. If the financial affidavit demonstrates that neither of the child's parents, or, if applicable, the child's custodian, has sufficient assets to pay for counsel, the court shall appoint counsel for the child. If the financial affidavit demonstrates that either of the child's parents, or, if applicable, the child's custodian, does have sufficient assets to pay for counsel, the court shall order the parent, or, if applicable, the custodian, to provide, by paying for, legal representation for the child in the proceedings.

The court may disregard the assets of the child's parents or custodian and appoint counsel for the child, as provided above, if the court concludes, as a matter of law, that the child and the parent or custodian have a conflict of interest that would adversely affect the child's right to effective representation of counsel, or concludes, as a matter of law, that requiring the child's parent or custodian to provide legal representation for the child would otherwise jeopardize the best interests of the child.

(d) In circuits in which no public defender office is in operation, circuit judges shall make all determinations of eligibility. In circuits in which a public defender office is in operation, all determinations of indigency shall be made by a public defender office employee designated by the executive director. Such determinations shall be made after a careful review of the financial affidavit submitted by the person seeking representation. The review of the affidavit shall be conducted in accord with the financial eligibility guidelines established by the agency pursuant to subsection (a) of this section. In addition to the financial eligibility guidelines, the person determining eligibility shall consider other relevant factors, including, but not limited to, those set forth in subdivisions (1) through (9) of subsection (e) of this section. If there is substantial reason to doubt the accuracy of information in the financial affidavit, the person determining eligibility may make such inquiries as are necessary to determine whether the affiant has truthfully and completely disclosed the required financial information.

After reviewing all pertinent matters the person determining eligibility may find the affiant to be eligible to have the total cost of legal representation provided by the state, or may find that the total cost of providing representation shall be apportioned between the state and the eligible person. A person whose annual income exceeds the maximum annual income level allowed for eligibility may receive all or part of the necessary legal representation, or a person whose income falls below the maximum annual income level for eligibility may be denied all or part of the necessary legal representation if the person determining eligibility finds the person's particular circumstances require that eligibility be allowed or disallowed,as the case may be, on the basis of one or more of the nine factors set forth in subsection (e) of this section. If legal representation is made available to a person whose income exceeds the maximum annual income level for eligibility, or if legal representation is denied to a person whose income falls below the maximum annual income level for eligibility, the person determining eligibility shall make a written statement of the reasons for the action and shall specifically relate those reasons to one or more of the factors set forth in subsection (e) of this section.

(e) The following factors shall be considered in determining eligibility for legal representation made available under the provisions of this article:

(1) Current income prospects, taking into account seasonal variations in income;

(2) Liquid assets, assets which may provide collateral to obtain funds to employ private counsel and other assets which may be liquidated to provide funds to employ private counsel;

(3) Fixed debts and obligations, including federal, state and local taxes and medical expenses;

(4) Child care, transportation and other expenses necessary for employment;

(5) Age or physical infirmity of resident family members;

(6) Whether the person seeking publicly funded legal representation has made reasonable and diligent efforts to obtain private legal representation, and the results of those efforts;

(7) The cost of obtaining private legal representation with respect to the particular matter in which assistance is sought;

(8) Whether the person seeking publicly funded legal representation has posted a cash bond for bail or has obtained release on bond for bail through the services of a professional bondsman for compensation and the amount and source of the money provided for such bond;

(9) The consequences for the individual if legal assistance is denied.

(f) Legal representation requested by the affiant may not be denied in whole or part unless the affiant can obtain legal representation without undue financial hardship. Persons determined to be ineligible by public defender personnel may have the initial determination reviewed by a local circuit judge who may amend, modify or rewrite the initial determination. At any stage of the proceedings a circuit court may determine a prior finding of eligibility was incorrect or has become incorrect as the result of the affiant's changed financial circumstances, and may revoke any prior order providing legal representation. In such event any attorney previously appointed shall be entitled to compensation under the provisions of law applicable to such appointment for services already rendered.

(g) In the circumstances and manner set forth below, circuit judges may order repayment to the state, through the office of the clerk of the circuit court having jurisdiction over the proceedings, of the costs of representation provided under this article:

(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person, and in juvenile cases, may require the juvenile's parents or custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees and costs as authorized by statute.

(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person's ability to pay and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case's conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person's financial circumstances change.

(3) When a person is ordered to repay costs, the court mayorder payment to be made forthwith or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future.

(4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction of the court that continued payment of the amount ordered will impose undue hardship on the person or the person's dependents, the court may modify the method or amount of payment.

(5) When a person ordered to pay costs is also placed on probation or imposition or execution of sentence is suspended, the court may make the repayment of costs a condition of probation or suspension of sentence.

(h) Circuit clerks shall keep a record of repaid counsel fees and defense expenses collected pursuant to this section and shall, quarterly, pay the moneys to the state auditor who shall deposit the funds in the general revenue fund of the state.

(i) The making of an affidavit subject to inquiry under this section does not in any event give rise to criminal remedies against the affiant nor occasion any civil action against the affiant except for the recovery of costs as in any other case where costs may be recovered and the recovery of the value of services, if any, provided pursuant to this article. A person who has made an affidavit knowing the contents thereof to be false may be prosecuted for false swearing as provided by law.


WVC 29 - 21 - 17 §29-21-17. Private practice of law by public defenders.
(a) No full-time public defender or full-time assistant public defender may engage in any private practice of law except as provided in this section.

(b) A board of directors may permit a newly employed full-time public defender or full-time assistant public defender to engage in the private practice of law for compensation for the sole purpose of expeditiously closing and withdrawing from existing private cases from a prior private practice. In no event shall any person employed for more than ninety days as a full-time public defender or full-time assistant public defender be engaged in any other private practice of law for compensation: Provided, That until the first day of January, one thousand nine hundred ninety-three, the prohibition against the private practice of law does not apply to full-time public defenders employed in Class II, III or IV counties as defined by article seven, chapter seven of this code.

(c) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in private practice for compensation if the defender is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction and if the defender remits to the public defender corporation allcompensation received.

(d) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in uncompensated private practice of law if the public defender or assistant public defender is acting:

(1) Pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction; or

(2) On behalf of a close friend or family member; or

(3) On behalf of a religious, community or charitable group.

(e) Violation of the requirements of this section is sufficient grounds for immediate summary dismissal regardless of the conditions of employment established by a corporation's board of directors.


WVC 29 - 21 - 18 §29-21-18. Records and reports.

(a) The agency is authorized to require such reports as it deems necessary from any public defender corporation or other entity or person receiving funding under this article regarding activities carried out pursuant to this article.

(b) The agency is authorized to prescribe the keeping of records with respect to the activities of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall have access to such records at all reasonable times for the purpose of ensuring compliance with the terms and conditions upon which financial assistance was provided.

(c) Copies of all reports pertinent to the evaluation, inspection, or monitoring of any public defender corporation, other grantee, contractor, person or entity receiving financial assistance under this article shall be maintained by the agency for a period of at least five years subsequent to such evaluation, inspection, or monitoring. Such reports shall be available for public inspection during regular business hours, and copies shall be furnished, upon request, to interested parties upon payment of such reasonable fees as the agency may establish.


WVC 29 - 21 - 19 §29-21-19. Audits.

(a) The accounts of each public defender corporation shall be audited annually as soon as possible after the end of each state fiscal year. Such audits shall be conducted in accordance with generally accepted auditing standards by the state tax commissioner.

(b) The audits shall be conducted at the place or places where the accounts of the public defender corporation are normally kept. All books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the public defender corporation and necessary to facilitate the audits shall be made available to the person or persons conducting the audits; and full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to any such person.

(c) The report of the annual audit shall be filed with the agency and shall be available for public inspection during business hours at the principal office of the public defender corporation. The report of each such audit shall be maintained for a period of at least five years at the office of the agency.


WVC 29 - 21 - 20 §29-21-20. Appointed counsel immune from liability.

                       Any attorney who provides legal representation under the provisions of this article under appointment by a circuit court, family court or by the Supreme Court of Appeals, and whose only compensation therefor is paid under the provisions of this article, shall be immune from liability arising from that representation in the same manner and to the same extent that prosecuting attorneys are immune from liability.
WVC 29 - 21 - 21 §29-21-21. Forgiveness of loans; reversion of public defender corporation assets.

All equipment, operational or supplemental loans heretofore made under the former provisions of article twenty-one are forgiven and declared null and void and shall not be an obligation of a public defender corporation formerly established under the previous provisions of article twenty-one, nor an obligation of any successor organization or of the members of any board of directors of any public defender corporation.


WVC 29 - 21 - 22 §29-21-22.

Repealed.

Acts, 1989 Reg. Sess., Ch. 169.


WVC 29 - 22 - ARTICLE 22. STATE LOTTERY ACT.


WVC 29 - 22 - 1 §29-22-1. Short title.
This article shall be known and may be cited as the "State Lottery Act."


WVC 29 - 22 - 2 §29-22-2. Legislative findings and intent.
The Legislature finds and declares that the purpose of this article is to establish and implement a state-operated lottery under the supervision of the state lottery commission and the director of the state lottery office who shall be appointed by the governor and hold broad authority to administer the system in a manner which will provide the state with a highly efficient operation.


WVC 29 - 22 - 3 §29-22-3. Definitions.
(a) "State lottery commission" or "commission" means the state lottery commission created by this article.

(b) "Director" means the individual appointed by the governor to provide management and administration necessary to direct the state lottery office.

(c) "Lottery" means the public gaming systems or games established and operated by the state lottery office.

(d) "Lottery tickets" or "tickets" means tickets or other tangible evidence of participation used in lottery games or gaming systems.


WVC 29 - 22 - 4 §29-22-4. State lottery commission created; composition; qualifications; appointment; terms of office; chairman's removal; vacancies; compensation and expenses; quorum; oath and bond.

(a) There is hereby created a state lottery commission which shall consist of seven members, all residents and citizens of the state, one who shall be a lawyer, one who shall be a certified public accountant, one who shall be a computer expert, one who shall have not less than five years experience in law enforcement and one who shall be qualified by experience and training in the field of marketing. The two remaining members shall be representative of the public at large. The commission shall carry on a continuous study and investigation of the lottery throughout the state and advise and assist the director of the state lottery. The commission members shall be appointed by the governor, by and with the advice and consent of the Senate, no later than the first day of July, one thousand nine hundred eighty-five. The terms of members first appointed expire as designated by the governor at the time of appointment: One at the end of one year; two at the end of two years; one at the end of three years; two at the end of four years; and one at the end of five years. Upon the effective date of this section, as vacancies occur, appointments to fill vacancies shall be made so that at least two members are appointed from each congressional district existing as of the first day of January, one thousand nine hundred ninety-three. No more than four members of such commission shall belong to the same political party. Members serve overlapping terms of five years and are eligible for successive appointments to the commission. On the first day of July of each year, the commission shall select a chairman from its membership. The governor may remove any commission member for cause, notwithstanding the provisions of section four, article six, chapter six of this code. Vacancies shall be filled in the same manner as the original appointment but only for the remainder of the term. No person convicted of a felony or crime involving moral turpitude shall be eligible for appointment nor appointed as a commissioner.

(b) The board shall pay each member the same compensation as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties and shall reimburse each member for actual and necessary expenses incurred in the discharge of official duties: Provided, That the per mile rate to be reimbursed shall be the same rate as authorized for members of the Legislature. All such payments shall be made from the state lottery fund.

(c) At least one meeting per month shall be held by the commission. Additional meetings may be held at the call of the chairman, director or majority of the commission members.

(d) A majority of the members constitutes a quorum for the transaction of business, and all actions require a majority vote of the members present.

(e) Before entering upon the discharge of the duties as commissioner, each commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the constitution of West Virginia and shall enter into a bond in the penal sum of one hundred thousand dollars with a corporate surety authorized to engage in business in this state, conditioned upon the faithful discharge and performance of the duties of the office. The executed oath and bond shall be filed in the office of the secretary of state.


WVC 29 - 22 - 5 §29-22-5. State lottery commission; powers and duties; cooperation of other agencies.
(a) The commission has the authority to:

(1) Promulgate rules in accordance with chapter twenty-nine-a of this code: Provided, That those rules promulgated by the commission that are necessary to begin the lottery games selected shall be exempted from the provisions of chapter twenty-nine-a of this code in order that the selected games may commence as soon as possible;

(2) Establish rules for conducting lottery games, a manner of selecting the winning tickets and manner of payment of prizes to the holders of winning tickets;

(3) Select the type and number of public gaming systems or games, to be played in accordance with the provisions of this article;

(4) Contract, if deemed desirable, with the educational broadcasting authority to provide services through its microwave interconnection system to make available to public broadcasting stations servicing this state and, at no charge, for rebroadcast to commercial broadcasting stations within this state, any public gaming system or games drawing;

(5) Enter into interstate and international lottery agreements with other states or foreign countries, or any combination of one or more states and one or more foreign countries;

(6) Adopt an official seal;

(7) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided;

(8) Prescribe a schedule of fees and charges;

(9) Sue and be sued;

(10) Lease, rent, acquire, purchase, own, hold, construct, equip, maintain, operate, sell, encumber and assign rights of any property, real or personal, consistent with the objectives of the commission as set forth in this article;

(11) Designate one of the deputy directors to serve as acting director during the absence of the director;

(12) Hold hearings on any matter of concern to the commission relating to the lottery, subpoena witnesses, administer oaths, take testimony, require the production of evidence and documentary evidence and designate hearing examiners and employees to so act; and

(13) To make and enter into all agreements and do all acts necessary or incidental to the performance of its duties and the exercise of its powers under this article.

(b) Departments, boards, commissions or other agencies of this state shall provide assistance to the state lottery office upon the request of the director.

(c) Upon the request of the deputy director for the security and licensing division in conjunction with the director, the attorney general, department of public safety and all other law-enforcement agencies shall furnish to the director and the deputy director such information as may tend to assure the security, honesty, fairness and integrity in the operation and administration of the lottery as they may have in their possession, including, but not limited to, manual or computerized information and data. The director is to designate such employees of the security and licensing division as may be necessary to act as enforcement agents. Such agents are authorized to investigate complaints made to the commission or the state lottery office concerning possible violation of the provisions of this article and determine whether to recommend criminal prosecution. If it is determined that action is necessary, an agent, after approval of the director, is to make such recommendation to the prosecuting attorney in the county wherein the violation occurred or to any appropriate law-enforcement agency.


WVC 29 - 22 - 6 §29-22-6. Lottery director; appointment; qualifications; oath and bond; salary.

(a) There is hereby created the position of the lottery director whose duties include the management and administration of the state lottery office. The director shall be qualified by training and experience to direct the operations of the lottery, and shall be appointed, within ninety days of the effective date of this article, by the governor and shall serve at the will and pleasure of the governor. No person shall be appointed as lottery director who has been convicted of a felony or crime involving moral turpitude.

(b) The director serves on a full-time basis and may not be engaged in any other profession or occupation.

(c) The director:

(1) Shall have a good reputation, particularly as a person of honesty and integrity, and shall favorably pass a thorough background investigation prior to appointment;

(2) The director shall not hold political office in the government of the state either by election or appointment while serving as director;

(3) The director shall be a citizen of the United States and must become a resident of the state within ninety days of appointment;

(4) The director shall receive an annual salary as provided for by the governor; and

(5) The director and his or her executive secretary are ineligible for civil service coverage as provided in section four, article six, chapter twenty-nine of this code.

(d) Before entering upon the discharge of the duties as director, the director shall take and subscribe to the oath of office prescribed in section 5, article IV of the constitution of West Virginia and shall enter into a bond in the penal sum of one hundred thousand dollars with a corporate surety authorized to engage in business in this state, conditioned upon the faithful discharge and performance of the duties of the office. The executed oath and bond shall be filed in the office of the secretary of state.


WVC 29 - 22 - 7 §29-22-7. Divisions of the state lottery office.
There shall be established within the state lottery office a security and licensing division; a personnel, data processing, accounting and administration division; and a marketing, education and information division. Each division shall be under the supervision of a deputy director who shall administer and coordinate the operation of authorized activities in the respective division. Each deputy director shall have had three years management experience in areas pertinent to his prospective responsibilities and an additional three years of experience in the same field.


WVC 29 - 22 - 8 §29-22-8. Lottery director; powers and duties; deputy directors; hiring of staff; civil service coverage; submission of proposed appropriations.
(a) The director shall have the authority to:

(1) Appoint, with the approval of the commission, a deputy director for each of the divisions established in this article. The deputy directors appointed shall serve at the will and pleasure of the director at an annual salary established by the commission. Deputy directors shall not be eligible for civil service coverage as provided in section four, article six, chapter twenty-nine of this code;

(2) The director shall hire, pursuant to the approval of the commission, such professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article. No person shall be employed by the lottery who has been convicted of a felony or other crime involving moral turpitude. Each person employed by the commission shall execute an authorization to allow an investigation of that person's background;

(3) Designate the number and types of locations at which tickets may be sold.

(b) Effective the first day of July, one thousand nine hundred eighty-six, all employees of the commission, except as otherwise provided herein, shall be in the classified service under the provisions of article six, chapter twenty-nine of this code.

(c) The director shall, pursuant to the approval of the commission, prepare and submit the annual proposed appropriations for the commission to the governor.


WVC 29-22-9 §29-22-9. Initiation and operation of lottery; restrictions; prohibited themes, games, machines or devices; distinguishing numbers; winner selection; public drawings; witnessing of results; testing and inspection of equipment; price of tickets; claim for and payment of prizes; invalid, counterfeit tickets; estimated prizes and odds of winning; participant bound by lottery rules and validation procedures; security procedures; additional games; electronic and computer systems.

(a) The commission shall initiate operation of the state lottery on a continuous basis at the earliest feasible and practical time, first initiating operation of the preprinted instant winner type lottery. The lottery shall be initiated and shall continue to be operated so as to produce the maximum amount of net revenues to benefit the public purpose described in this article consonant with the public good. Other state government departments, boards, commissions, agencies and their officers shall cooperate with the lottery commission so as to aid the lottery commission in fulfilling these objectives.

(b) The commission shall promulgate rules and regulations specifying the types of lottery games to be conducted by the lottery: Provided, That:

(1) No lottery may use the results of any amateur or professional sporting event, dog race or horse race to determine the winner.

(2) Electronic video lottery systems must include a central site system of monitoring the lottery terminals utilizing an on- line or dial-up inquiry.

(3) In a lottery utilizing a ticket, each ticket shall bear a unique number distinguishing it from each other ticket.

(4) No lottery utilizing a machine may use machines which dispense coins or currency.

(5) A lottery game which utilizes an electronic computer and a video screen to operate a lottery game and communicate the results thereof, such as the game "Travel", and which does not utilize an interactive electronic terminal device allowing input by an individual player, may only be made available by the commission in (A) private clubs licensed in accordance with the provisions of article seven, chapter sixty of this code, (B) retail licensees licensed in accordance with the provisions of article three-a of said chapter sixty, and (C) in the facilities of class A licensees which are licensed in accordance with the provisions of section nine, article sixteen, chapter eleven of this code, in which facility at least seventy-five percent of the nonintoxicating beer sold by the class A licensee in the preceding year was sold for consumption on the premises: Provided, That if sales information is not available for the preceding year, the commission in its discretion may base any issuance or denial of an annual license upon a reasonable projection of the volume of sales of nonintoxicating beer for consumption on the premises as a percentage of the total sales of nonintoxicating beer.

(6) Selection of the winner must be predicted totally on chance.

(7) Any drawings or winner selections shall be held in public and witnessed by an independent accountant designated by the director for such purposes.

(8) All lottery equipment and materials shall be regularly inspected and tested, before and after any drawings or winner selections, by independent qualified technicians.

(9) The director shall establish the price for each lottery and determine the method of selecting winners and the manner of payment of prizes, including providing for payment by the purchase of annuities for prizes payable in installments.

(10) All claims for prizes shall be examined and no prize shall be paid as a result of altered, stolen or counterfeit tickets or materials, or which fail to meet validation rules or regulations established for a lottery. No prize shall be paid more than once, and, in the event of a binding determination by the commission that more than one person is entitled to a particular prize, the sole remedy of the claimants shall be the award to each of them of an equal share in the single prize.

(11) A detailed tabulation of the estimated number of prizes of each particular prize denomination that are expected to be awarded in each lottery, or the estimated odds of winning such prizes shall be printed on any lottery ticket, where feasible, or in descriptive materials, and shall be available at the offices of the commission.

(12) No prizes shall be paid which are invalid and not contemplated by the prize structure of the lottery involved.

(13) By purchasing a ticket or participation in a lottery, a participant agrees to abide by, and be bound by, the lottery rules which apply to the lottery or game play involved. An abbreviated form of such rules may appear on tickets and shall appear on descriptive materials and shall be available at the offices of the commission. A participant in a lottery agrees that the determination of whether the participant is a valid winner is subject to the lottery or game play rules and the winner validation tests established by the commission. The determination of the winner by the commission shall be final and binding upon all participants in a lottery and shall not be subject to review or appeal.

(14) The commission shall institute such security procedures as it deems necessary to ensure the honesty and integrity of the winner selection process for each lottery. All such security and validation procedures and techniques shall be, and remain, confidential, and shall not be subject to any discovery procedure in any civil judicial, administrative or other proceeding, nor subject to the provisions of article one, chapter twenty-nine-b of the code of West Virginia, one thousand nine hundred thirty- one, as amended.

(c) The commission shall proceed with operation of such additional lottery games, including the implementation of games utilizing a variety of existing or future technological advances at the earliest feasible date. The commission may operate lottery games utilizing electronic computers and electronic computer terminal devices and systems, which systems must include a central site system of monitoring the lottery terminals utilizing direct communication systems, or other technological advances and procedures, ensuring honesty and integrity in the operation of the lottery.


WVC 29 - 22 - 9 A §29-22-9a. Veterans instant lottery scratch-off game.
(a) Beginning the first day of September, two thousand, the commission shall establish an instant lottery scratch-off game designated as the veterans benefit game, which is offered by the lottery.

(b) Notwithstanding the provisions of section eighteen of this article, all net profits received from the sale of veterans benefit game lottery tickets, materials and games are deposited with the State Treasurer into the Veterans Lottery Fund created under subsection (c) of this section. The Legislature may make appropriations from this fund for operational costs from moneys remaining in the Veterans Lottery Fund after the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the foregoing, have been paid. Funds from the Veterans Lottery Fund for the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the construction of a veterans nursing home and/or veterans cemetery, shall be transferred to the Veterans Nursing Home Building Fund and the Veterans Cemetery Fund upon written request of the Director of the Division of Veterans Affairs to the investment management board and the State Treasurer in accordance with the provisions of this section. Once the payment of the principal and interest, any required operational costs and architectural and other project costs associated with construction are paid in full for the construction and operation of the initial veterans skilled nursing facility or veterans cemetery, the Legislature may appropriate from the fund created under this section moneys for the construction, including the architectural fees and other associated costs, equipping and operation of additional skilled nursing facilities and/or cemeteries for veterans of the armed forces of the United States military: Provided, That in addition to the payment of the above-mentioned items, funds may be deposited in the Veterans Cemetery Fund created in section eleven-a, article one, chapter nine-a of this code and, thereafter, the Legislature may appropriate any excess funds to the General Revenue Fund.

(c) There is hereby created in the State Treasury a special revenue fund designated and known as the Veterans Lottery Fund which shall consist of all revenues derived from the veterans benefit game and any appropriations to the fund by the Legislature and all interest or other returns earned from investment of the fund.

(d) There is hereby created in the State Treasury a special revenue fund designated and known as the Veterans Nursing Home Building Fund which shall consist of all funds for the acquisition, design, construction, equipping, furnishing, including, without limitation, the payment of debt service on bonds issued to finance the foregoing. Following the selection of the architect, the director shall certify the estimated total cost of the architect and all construction and associated costs to the Joint Committee on Government and Finance prior to the transfer of funds for construction. If funds transferred exceed the estimated costs certified to the joint committee, the director shall certify the additional costs to the joint committee.

(e) There is hereby created in the State Treasury a special revenue fund designated and known as the Veterans Nursing Home Debt Service Fund to which the required funding from the Veterans Nursing Home Building Fund is transferred to refund revenue bonds to pay the principal, interest, redemption premium and coverage ratio requirement, if any, on the revenue bonds issued under the provisions of section seven, article twenty-nine-a, chapter sixteen of this code. The Veterans Nursing Home Debt Service Fund has first priority to all funds in the Veterans Nursing Home Building Fund established herein not otherwise designated or specified by the donor. Beginning on or before the twenty-eighth day of July, two thousand three, and continuing until the twenty-eighth day of June, two thousand thirty-five, the Treasurer shall allocate to the Veterans Nursing Home Debt Service Fund from the Veterans Nursing Home Building Fund, as a first priority, an amount equal to one tenth of the projected annual principal, interest, redemption premium and coverage ratio requirement on any and all revenue bonds and refunding bonds issued, or to be issued, on or after the first day of July, two thousand three, under the provisions of said section in connection with a veterans nursing home as certified to the Treasurer and the Investment Management Board by the Director of the Division of Veterans Affairs. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Veterans Nursing Home Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(f) The commission shall change the design or theme of the veterans benefit game regularly so that the game remains competitive with the other instant lottery scratch-off games offered by the commission. The tickets for the instant lottery game created in this section shall clearly state that the profits derived from the game are being used to benefit veterans in this state.


WVC 29 - 22 - 10 §29-22-10. Licensed lottery sales agents; restrictions; annual license and fee; factors; application; bond; age; nonassignable license; organizations qualified; commissions; display of license; geographic distribution; monopoly prohibited; lottery retailers; preprinted instant type lottery tickets; fee; certificate of authority; security; bond.
(a) The commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the licensing of lottery sales agents for the sale and dispensing of lottery tickets, materials and lottery games, and the operations of electronic computer terminals therefor, subject to the following:

(1) The commission shall issue its annual license to the lottery sales agents for each lottery outlet and for a fee established by the commission to cover its costs, but not to exceed one thousand dollars. Application for licensing as a lottery sales agent shall be on forms prescribed and furnished by the director;

(2) No licensee may engage in business exclusively as a lottery sales agent;

(3) The commission shall ensure geographic distribution of lottery sales agents throughout the state;

(4) Before issuance of a license to an applicant, the commission shall consider factors such as the financial responsibility, security, background, accessibility of the place of business or activity to the public, public convenience and the volume of expected sales;

(5) No person under the age of twenty-one may be licensed as an agent. No licensed agent may employ any person under the age of eighteen for sales or dispensing of lottery tickets or materials or operation of a lottery terminal;

(6) A license is valid only for the premises stated on the license;

(7) The director may issue a temporary license when determined necessary;

(8) A license is not assignable or transferable;

(9) Before a license is issued, an agent shall be bonded for an amount and in the form and manner determined by the director, or shall provide other security, in an amount, form and manner determined by the director, that will ensure the performance of the agent's duties and responsibilities as a licensed lottery agent or the indemnification of the commission;

(10) The commission may issue licenses to any legitimate business, organization, person or entity, including, but not limited to, civic or fraternal organizations; parks and recreation commissions or similar authorities; senior citizen centers, state-owned stores, persons lawfully engaged in nongovernmental business on state property, persons lawfully engaged in the sale of alcoholic beverages; political subdivisions or their agencies or departments, state agencies, commission-operated agencies; persons licensed under the provisions of article twenty-three, chapter nineteen of this code; and religious, charitable or seasonal businesses;

(11) Licensed lottery sales agents shall receive seven percent of gross sales as commission for the performance of their duties: Provided, That a portion of the commission not to exceed one and one quarter percent of gross sales may be paid from unclaimed prize moneys accumulated under section sixteen of this article. In addition, the commission may promulgate a bonus-incentive plan as additional compensation not to exceed one percent of annual gross sales. The method and time of payment shall be determined by the commission;

(12) Licensed lottery sales agents shall prominently display the license on the premises where lottery sales are made; and

(13) No person or entity or subsidiary, agent or subcontractor of that person or entity may receive or hold more than twenty-five percent of the licenses to act as licensed lottery sales agent in any one county or municipality nor more than five percent of the licenses issued throughout this state: Provided, That the limitations of twenty-five percent and five percent in this subdivision do not apply if it is determined by the commission that there are not a sufficient number of qualified applicants for licenses to comply with these requirements.

(b) The commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code specifying the terms and conditions for contracting with lottery retailers for sale of preprinted instant type lottery tickets and may provide for the dispensing of the tickets through machines and devices. Tickets may be sold or dispensed in any public or private store, operation or organization, without limitation. The commission may establish an annual fee not to exceed fifty dollars for those persons, per location or site, and shall issue a certificate of authority to act as a lottery retailer to them. The commission shall establish procedures to ensure the security, honesty and integrity of the lottery and distribution system. The commission shall establish the method of payment, commission structure, methods of payment of winners, including payment in merchandise and tickets, and may require prepayment by lottery retailers, require bond or security for payment and require deposit of receipts in accounts established therefor. Retailers shall prominently display the certificate of authority issued by the commission on the premises where lottery sales are made.


WVC 29 - 22 - 11 §29-22-11. Prohibited acts; restrictions on sales agents and retailers; unauthorized sales; sales to minors; gifts to minors; prizes to commission officers and staff prohibited; criminal penalties for prohibited acts.
(a) No person may sell lottery tickets or materials unless authorized by the commission to so act. No person may perform the functions of a licensed lottery sales agent unless licensed by the commission. No person may perform the functions of a lottery retailer unless authorized therefor by the commission. No person may sell a lottery ticket or material at a price greater than that established by the commission; except, that nothing in this section may be construed to prevent any person from giving a lottery ticket or material to another as a gift or bonus. No person other than a licensed lottery sales agent or an employee thereof, while acting within the scope of such employment, shall sell lottery tickets, and then only on the premises stated on the license.

(b) No ticket shall be sold to any person under the age of eighteen years. This section does not prohibit the purchase of a ticket by a person eighteen years of age or older for the purpose of making the ticket a gift to a person less than that age.

(c) No ticket may be purchased by and no prizes received by or awarded to any officers or employees of the commission or any member of their immediate household.

(d) Any person who violates the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.


WVC 29 - 22 - 12 §29-22-12. Crimes; forgery, counterfeiting, etc. of lottery tickets; penalties.
Any person who, with intent to defraud, falsely makes, alters, forges, utters, passes or counterfeits a lottery ticket is guilty of a felony, and, upon conviction thereof, shall be fined not more than one thousand dollars, or be imprisoned in the penitentiary for not less than one year or both fined and imprisoned.


WVC 29 - 22 - 13 §29-22-13. Prohibited acts; conflict of interest; prohibited gifts and gratuities.

(1) The commissioners, the director, the deputy directors and the employees of the lottery may not, directly or indirectly, individually, or as a member of a partnership or as a shareholder of a corporation have an interest in dealing in a lottery.

(2) A member of the commission, the director, and an employee of the lottery or a member of their immediate families may not ask for, offer to accept, or receive any gift, gratuity or other thing of value from any person, corporation, association or firm contracting or seeking to contract with the state to supply gaming equipment or materials for use in the operation of a lottery or from an applicant for a license to sell tickets in the lottery or from a licensee.

(3) A person, corporation, association or firm contracting or seeking to contract with the state to supply gaming equipment or materials for use in the operation of a lottery, an applicant for a license to sell tickets in the lottery or a licensee may not offer a member of the commission, an employee of the lottery, or a member of their immediate families any gift, gratuity or other thing of value.


WVC 29 - 22 - 14 §29-22-14. Administrative violations of articles; hearing; administrative penalties.
(a) In addition to any criminal penalty imposed under the provisions of this article or any other chapter of this code:

(1) No person shall be appointed, employed or continue to serve in any position or employment with the commission who has been convicted of any violation of this article, or of any felony or any crime related to theft or gambling or involving moral turpitude. The commission shall remove or discharge any person so convicted.

(2) No person shall be licensed as a lottery sales agent nor authorized to act as a lottery retailer who has been convicted of any violation of this article, or of any felony or any crime related to theft or gambling or involving moral turpitude. The commission shall revoke the license or the authority of any person so convicted.

(3) No person shall be permitted to act as vendor to the commission who has been convicted of any violation of this article, or of any felony or any crime related to theft, bribery or gambling or involving moral turpitude. The commission shall deny the privilege of acting as a vendor to the commission for any person so convicted.

(b) Any person aggrieved by any action of the commission under the provisions of this article may in writing to the commission request a hearing which shall be held before the commission or its duly authorized representative. Upon receipt of the request for a hearing, the commission shall set a hearing date within thirty days of the receipt of the request and shall notify the aggrieved party in writing at least seven days in advance of the hearing date of the time, date and place of the hearing. The commission shall issue an order within thirty days after the hearing date, either affirming or reversing the action of the director. The provisions of chapter twenty-nine-a of this code shall apply to such hearings.

(c) After hearing and determination that any provision of this article or rule or regulation of the commission has been violated, the commission may impose a penalty not to exceed one hundred dollars per violation.


WVC 29 - 22 - 15 §29-22-15. Payment of prizes to minors.
If the person entitled to a prize or any winning ticket is under the age of eighteen years, and such prize is less than five thousand dollars, the director may direct payment of the prize by delivery to an adult member of the minor's family or a legal guardian of the minor of a check or draft payable to the order of the minor. If the person entitled to a prize or any winning ticket is under the age of eighteen years, and the prize is five thousand dollars or more, the director may direct payment to the minor by depositing the amount of the prize in any bank to the credit of an adult member of the minor's family or a legal guardian of the minor as guardian for the minor. The person so named as guardian shall have qualified under and shall have the same duties and powers as a person designated as a guardian in the manner as provided in article ten, chapter forty-four of this code. The commission and director shall be discharged of all further liability upon payment of a prize pursuant to this section.


WVC 29 - 22 - 16 §29-22-16. Disposition of unclaimed prize money.
Unclaimed prize money for the prize on a winning ticket shall be retained by the director for the person entitled thereto for one hundred eighty days after the drawing in which the prize was won or for one hundred eighty days after the announced end of a game. If no claim is made for said money within one hundred eighty days, the prize money reverts to the state lottery fund for the purposes of paying a portion of the sales commission to lottery sales agents pursuant to section ten of this article or for awarding additional prizes. The commission shall promulgate rules for the awarding of additional prizes.


WVC 29 - 22 - 17 §29-22-17. Lottery proceeds; accounting therefor; deposit into account of state treasurer; reports; funds to be held in trust; failure to collect, account or deposit; personal liability.
(a) The commission shall establish rules and regulations for accounting for sales of lottery tickets and materials and accounting for all funds from sales and dispensing of lottery tickets, materials and games. Such regulations shall require all licensed lottery sales agents and lottery retailers to deposit in the bank account of the state treasurer in banks regularly used by said agents or retailers and approved by the director all moneys received by such agents and retailers from the sale of lottery tickets, materials and games, within twenty-four hours of the receipt thereof, and in accordance with the provisions of section two, article two, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as amended, unless the director specifies a different time within which the deposit must be made. The state treasurer shall credit all funds so deposited to the credit of the state lottery fund. The director shall require such reports of lottery receipts and transactions in the sale of lottery tickets and materials in such form and containing such information as the director deems necessary.

(b) All funds from the sale of lottery tickets, materials and games are the funds of the state and until deposited in the accounts and in the manner specified by the director are held in trust by the person or entity receiving them for deposit. If a person or entity fails to collect, account for or deposit such funds to the accounts and in the manner specified by the director, such person and entity shall be personally liable for the full amount of such funds. If the person so failing is an association, corporation or other entity, the officers thereof shall be personally liable, jointly and severally, for any default on the part of the association, corporation or entity, and payment may be enforced against them as against the association, corporation or entity.


WVC 29 - 22 - 18 §29-22-18. State Lottery Fund; appropriations and deposits; not part of general revenue; no transfer of state funds after initial appropriation; use and repayment of initial appropriation; allocation of fund for prizes, net profit and expenses; surplus; State Lottery Education Fund; State Lottery Senior Citizens Fund; allocation and appropriation of net profits.
(a) There is continued a Special Revenue Fund in the State Treasury which shall be designated and known as the State Lottery Fund. The fund consists of all appropriations to the fund and all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All revenues received from the sale of lottery tickets, materials and games shall be deposited with the State Treasurer and placed into the State Lottery Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall not be treated by the Auditor and Treasurer as part of the general revenue of the state.

(b) No appropriation, loan or other transfer of state funds may be made to the commission or Lottery Fund after the initial appropriation.

(c) A minimum annual average of forty-five percent of the gross amount received from each lottery shall be allocated and disbursed as prizes.

(d) Not more than fifteen percent of the gross amount received from each lottery may be allocated to and may be disbursed as necessary for fund operation and administration expenses.

(e) The excess of the aggregate of the gross amount received from all lotteries over the sum of the amounts allocated by subsections (c) and (d) of this section shall be allocated as net profit. In the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate to an amount not to exceed $250,000. On a monthly basis, the director shall report to the Joint Committee on Government and Finance of the Legislature any surplus in excess of $250,000 and remit to the State Treasurer the entire amount of those surplus funds in excess of $250,000 which shall be allocated as net profit.

(f) After first satisfying the requirements for funds dedicated to the School Building Debt Service Fund in subsection (h) of this section to retire the bonds authorized to be issued pursuant to section eight, article nine-d, chapter eighteen of this code, then satisfying the requirements for funds dedicated to the Education, Arts, Sciences and Tourism Debt Service Fund, in subsection (i) of this section to retire the bonds authorized to be issued pursuant to section eleven-a, article six, chapter five of this code and section sixteen-a, article fifteen, chapter thirty-one of this code, and then satisfying the requirements for funds dedicated to the Community and Technical College Capital Improvement Fund in subsection (j) of this section to retire the bonds for community and technical college capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, any and all remaining funds in the State Lottery Fund shall be made available to pay debt service in connection with any revenue bonds issued pursuant to section eighteen-a of this article, if and to the extent needed for such purpose from time to time. The Legislature shall annually appropriate all of the remaining amounts allocated as net profits in subsection (e) of this section, in such proportions as it considers beneficial to the citizens of this state, to: (1) The Lottery Education Fund created in subsection (g) of this section; (2) the School Construction Fund created in section six, article nine-d, chapter eighteen of this code; (3) the Lottery Senior Citizens Fund created in subsection (k) of this section; and (4) the Division of Natural Resources created in section three, article one, chapter twenty of this code and the West Virginia Development Office as created in section one, article two, chapter five-b of this code, in accordance with subsection (l) of this section. No transfer to any account other than the School Building Debt Service Fund, the Education, Arts, Sciences and Tourism Debt Service Fund, the Community and Technical College Capital Improvement Fund, the Economic Development Project Fund created under section eighteen-a, article twenty-two, chapter twenty-nine of this code, or any fund from which debt service is paid under subsection (c), section eighteen-a of this article may be made in any period of time in which a default exists in respect to debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission, the Economic Development Authority or which are otherwise secured by lottery proceeds. No additional transfer may be made to any account other than the School Building Debt Service Account and the Education, Arts, Sciences and Tourism Debt Service Fund, and the Community and Technical College Capital Improvement Fund, when net profits for the preceding twelve months are not at least equal to one hundred fifty percent of debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission and the Economic Development Authority which are secured by net profits.

(g) There is continued a special revenue fund in the State Treasury which shall be designated and known as the Lottery Education Fund. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which shall be deposited into the Lottery Education Fund by the State Treasurer. The Lottery Education Fund shall also consist of all interest earned from investment of the Lottery Education Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Education Fund from any source. The revenues received or earned by the Lottery Education Fund shall be disbursed in the manner provided below and may not be treated by the Auditor and Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Education Fund to the state system of public and higher education for these educational programs it considers beneficial to the citizens of this state.

(h) On or before the twenty-eighth day of each month, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the School Building Debt Service Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code, as a first priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1994, as certified to the lottery director in accordance with the provisions of section six, article nine-d, chapter eighteen of this code. In no event shall the monthly amount allocated exceed $1.8 million nor may the total allocation of the net profits to be paid into the School Building Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $18 million. In the event there are insufficient funds available in any month to transfer the amount required to be transferred pursuant to this subsection to the School Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $27 million annually, may be granted by the School Building Authority in favor of the bonds it issues which are secured by the net lottery profits. When the school improvement bonds, secured by profits from the lottery and deposited in the School Debt Service Fund, mature, the profits shall become available for debt service on additional school improvement bonds as a first priority from the net profits of the lottery or may at the discretion of the authority be placed into the School Construction Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code.

(i) Beginning on or before July 28, 1996, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds issued in accordance with section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code are outstanding, the lottery director shall allocate to the Education, Arts, Sciences and Tourism Debt Service Fund, created pursuant to the provisions of section eleven-a, article six, chapter five of this code, as a second priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1996, as certified to the lottery director in accordance with the provisions of section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code. In no event may the monthly amount allocated exceed $1 million nor may the total allocation paid into the Education, Arts, Sciences and Tourism Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Education, Arts, Sciences and Tourism Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A second-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $15 million annually, may be granted by the State Building Commission or the Economic Development Authority in favor of the bonds issued in accordance with section eleven-a, article six, chapter five or section sixteen-a, article fifteen, chapter thirty-one of this code.

(j) Beginning on or before July 28, 2008, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Community and Technical College Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after April 1, 2008, as certified by the lottery director in accordance with the provisions of that section. In no event may the monthly amount allocated exceed $500,000 nor may the total allocation paid to the Community and Technical Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $5 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Community and Technical College Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $7.5 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues which are secured by the net lottery profits.

(2) When the community and technical college capital improvement bonds secured by profits from the lottery and deposited in the Community and Technical College Capital Improvement Fund mature, the profits shall become available for debt service on additional community and technical college capital improvement bonds as a third priority from the net profits of the lottery.

(3) The Council for Community and Technical College Education shall approve all community and technical college capital improvement projects prior to the distribution of bond proceeds.

(4) Prior to the issuance of community and technical college revenue bonds pursuant to this subsection, the lottery director shall transfer $5 million to the Community and Technical College Improvement Fund, less any amounts needed for initial debt service payments, to be used on a cash basis for community and technical college capital improvements and capital projects.

(k) There is continued a special revenue fund in the State Treasury which shall be designated and known as the Lottery Senior Citizens Fund. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which amounts shall be deposited into the Lottery Senior Citizens Fund by the State Treasurer. The Lottery Senior Citizens Fund shall also consist of all interest earned from investment of the Lottery Senior Citizens Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Senior Citizens Fund from any source. The revenues received or earned by the Lottery Senior Citizens Fund shall be distributed in the manner provided below and may not be treated by the Auditor or Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Senior Citizens Fund to any senior citizens medical care and other programs it considers beneficial to the citizens of this state.

(l) The Division of Natural Resources and the West Virginia Development Office, as appropriated by the Legislature, may use the amounts allocated to them pursuant to subsection (f) of this section for one or more of the following purposes: (1) The payment of any or all of the costs incurred in the development, construction, reconstruction, maintenance or repair of any project or recreational facility, as these terms are defined in section four, article five, chapter twenty of this code, pursuant to the authority granted to it under article five, chapter twenty of this code; (2) the payment, funding or refunding of the principal of, interest on or redemption premiums on any bonds, security interests or notes issued by the parks and recreation section of the Division of Natural Resources under article five, chapter twenty of this code; or (3) the payment of any advertising and marketing expenses for the promotion and development of tourism or any tourist facility or attraction in this state.


WVC 29 - 22 - 18 A §29-22-18a. State Excess Lottery Revenue Fund.
(a) The State Lottery Fund in the State Treasury which is designated and known as the State Excess Lottery Revenue Fund is continued. The fund consists of all appropriations to the fund and all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All revenues received under the provisions of sections ten-b and ten-c, article twenty-two-a of this chapter and under article twenty-two-b of this chapter, except the amounts due the commission under subdivision (1), subsection (a), section one thousand four hundred eight, article twenty-two-b of this chapter, shall be deposited in the State Treasury and placed into the State Excess Lottery Revenue Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall not be treated by the State Auditor and the State Treasurer as part of the general revenue of the state.

(b) For the fiscal year beginning July 1, 2002, the commission shall deposit: (1) $65 million into the subaccount of the state Excess Lottery Revenue Fund hereby created in the State Treasury to be known as the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $10 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in section seven, article seven, chapter eighteen-c of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $20 million into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) $40 million into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. For the fiscal year beginning July 1, 2003, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $17 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in section seven, article seven, chapter eighteen-c of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $20 million into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) $40 million into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $7 million into the State Park Improvement Fund for Park Improvements.

(c) For the fiscal year beginning July 1, 2004, and subsequent fiscal years through the fiscal year ending June 30, 2009, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $27 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in section seven, article seven, chapter eighteen-c of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $19 million into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds: Provided, That for the fiscal year beginning July 1, 2008, and subsequent fiscal years, no moneys shall be deposited in the School Building Debt Service Fund pursuant to this subsection and instead $19 million shall be deposited into the Excess Lottery School Building Debt Service Fund; (5) $40 million into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. No portion of the distributions made as provided in this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, may be used to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of the bonds and payment of debt service on the bonds through statutory enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section, the distributions may be used only to fund capital improvements that are not financed by bonds and only pursuant to appropriation of the Legislature.

(d) For the fiscal year beginning July 1, 2009, and subsequent fiscal years, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) $29 million into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in section seven, article seven, chapter eighteen-c of this code; (3) $19 million into the Economic Development Project Fund created in subsection (e) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) $19 million into the Excess Lottery School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code; (5) $40 million into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million into the State Park Improvement Fund for Park Improvements. No portion of the distributions made as provided in this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, may be used to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of the bonds and payment of debt service on the bonds through statutory enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (e) of this section, the distributions may be used only to fund capital improvements that are not financed by bonds and only pursuant to appropriation of the Legislature.

(e) The Legislature finds and declares that in order to attract new business, commerce and industry to this state, to retain existing business and industry providing the citizens of this state with economic security and to advance the business prosperity of this state and the economic welfare of the citizens of this state, it is necessary to provide public financial support for constructing, equipping, improving and maintaining economic development projects, capital improvement projects and infrastructure which promote economic development in this state.

(1) The West Virginia Economic Development Authority created and provided for in article fifteen, chapter thirty-one of this code shall, by resolution, in accordance with the provisions of this article and article fifteen, chapter thirty-one of this code, and upon direction of the Governor, issue revenue bonds of the Economic Development Authority in no more than two series to pay for all or a portion of the cost of constructing, equipping, improving or maintaining projects under this section or to refund the bonds at the discretion of the authority. Any revenue bonds issued on or after July 1, 2002, which are secured by state excess lottery revenue proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of and the interest and redemption premium, if any, on the bonds shall be payable solely from the special fund provided in this section for the payment.

(2) The special revenue fund named the Economic Development Project Fund into which shall be is deposited the amounts to be deposited in the fund as specified in subsections (b), (c) and (d) of this section is continued. The Economic Development Project Fund shall consist of all such moneys, all appropriations to the fund, all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section, including any and all commercially customary and reasonable costs and expenses which may be incurred in connection with the issuance, refunding, redemption or defeasance of the bonds. The West Virginia Economic Development Authority may further provide in the resolution and in the trust agreement for priorities on the revenues paid into the Economic Development Project Fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have been issued, from time to time, under the provisions of this article.

(3) After the West Virginia Economic Development Authority has issued bonds authorized by this section and after the requirements of all funds have been satisfied, including any coverage and reserve funds established in connection with the bonds issued pursuant to this subsection, any balance remaining in the Economic Development Project Fund may be used for the redemption of any of the outstanding bonds issued under this subsection which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.

(4) Bonds issued under this subsection shall state on their face that the bonds do not constitute a debt of the State of West Virginia; that payment of the bonds, interest and charges thereon cannot become an obligation of the State of West Virginia; and that the bondholders' remedies are limited in all respects to the Special Revenue Fund established in this subsection for the liquidation of the bonds.

(5) The West Virginia Economic Development Authority shall expend the bond proceeds from the revenue bond issues authorized and directed by this section for projects certified under the provision of this subsection: Provided, That the bond proceeds shall be expended in accordance with the requirements and provisions of article five-a, chapter twenty-one of this code and either article twenty-two or twenty-two-a, chapter five of this code, as the case may be: Provided, however, That if the bond proceeds are expended pursuant to article twenty-two-a, chapter five of this code and if the Design-Build Board created under said article determines that the execution of a design-build contract in connection with a project is appropriate pursuant to the criteria set forth in said article and that a competitive bidding process was used in selecting the design builder and awarding the contract, the determination shall be conclusive for all purposes and shall be considered to satisfy all the requirements of said article.

(6) For the purpose of certifying the projects that will receive funds from the bond proceeds, a committee is hereby established and comprised of the Governor, or his or her designee, the Secretary of the Department of Revenue, the Executive Director of the West Virginia Development Office and six persons appointed by the Governor: Provided, That at least one citizen member must be from each of the state's three congressional districts. The committee shall meet as often as necessary and make certifications from bond proceeds in accordance with this subsection. The committee shall meet within thirty days of the effective date of this section.

(7) Applications for grants submitted on or before July 1, 2002, shall be considered refiled with the committee. Within ten days from the effective date of this section as amended in the year 2003, the lead applicant shall file with the committee any amendments to the original application that may be necessary to properly reflect changes in facts and circumstances since the application was originally filed with the committee.

(8) When determining whether or not to certify a project, the committee shall take into consideration the following:

(A) The ability of the project to leverage other sources of funding;

(B) Whether funding for the amount requested in the grant application is or reasonably should be available from commercial sources;

(C) The ability of the project to create or retain jobs, considering the number of jobs, the type of jobs, whether benefits are or will be paid, the type of benefits involved and the compensation reasonably anticipated to be paid persons filling new jobs or the compensation currently paid to persons whose jobs would be retained;

(D) Whether the project will promote economic development in the region and the type of economic development that will be promoted;

(E) The type of capital investments to be made with bond proceeds and the useful life of the capital investments; and

(F) Whether the project is in the best interest of the public. (9) A grant may not be awarded to an individual or other private person or entity. Grants may be awarded only to an agency, instrumentality or political subdivision of this state or to an agency or instrumentality of a political subdivision of this state. The project of an individual or private person or entity may be certified to receive a low-interest loan paid from bond proceeds. The terms and conditions of the loan, including, but not limited to, the rate of interest to be paid and the period of the repayment, shall be determined by the Economic Development Authority after considering all applicable facts and circumstances. (10) Prior to making each certification, the committee shall conduct at least one public hearing, which may be held outside of Kanawha County. Notice of the time, place, date and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least fourteen days prior to the date of the public hearing.

(11) The committee may not certify a project unless the committee finds that the project is in the public interest and the grant will be used for a public purpose. For purposes of this subsection, projects in the public interest and for a public purpose include, but are not limited to:

(A) Sports arenas, fields, parks, stadiums and other sports and sports-related facilities;

(B) Health clinics and other health facilities;

(C) Traditional infrastructure, such as water and wastewater treatment facilities, pumping facilities and transmission lines;

(D) State-of-the-art telecommunications infrastructure;

(E) Biotechnical incubators, development centers and facilities;

(F) Industrial parks, including construction of roads, sewer, water, lighting and other facilities;

(G) Improvements at state parks, such as construction, expansion or extensive renovation of lodges, cabins, conference facilities and restaurants;

(H) Railroad bridges, switches and track extension or spurs on public or private land necessary to retain existing businesses or attract new businesses;

(I) Recreational facilities, such as amphitheaters, walking and hiking trails, bike trails, picnic facilities, restrooms, boat docking and fishing piers, basketball and tennis courts, and baseball, football and soccer fields;

(J) State-owned buildings that are registered on the National Register of Historic Places;

(K) Retail facilities, including related service, parking and transportation facilities, appropriate lighting, landscaping and security systems to revitalize decaying downtown areas; and

(L) Other facilities that promote or enhance economic development, educational opportunities or tourism opportunities thereby promoting the general welfare of this state and its residents.

(12) Prior to the issuance of bonds under this subsection, the committee shall certify to the Economic Development Authority a list of those certified projects that will receive funds from the proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other than by legislative enactment.

(13) If any proceeds from sale of bonds remain after paying costs and making grants and loans as provided in this subsection, the surplus may be deposited in an account in the State Treasury known as the Economic Development Project Bridge Loan Fund administered by the Economic Development Authority created in article fifteen, chapter thirty-one of this code. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code. Loan repayment amounts, including the portion attributable to interest, shall be paid into the fund created in this subdivision.

(f) If the commission receives revenues in an amount that is not sufficient to fully comply with the requirements of subsections (b), (c), (d) and (i) of this section, the commission shall first make the distribution to the Economic Development Project Fund; second, make the distribution or distributions to the other funds from which debt service is to be paid; third, make the distribution to the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund; and fourth, make the distribution to the General Purpose Account: Provided, That, subject to the provisions of this subsection, to the extent the revenues are not pledged in support of revenue bonds which are or may be issued, from time to time, under this section, the revenues shall be distributed on a pro rata basis.

(g) Each fiscal year, the commission shall, after meeting the requirements of subsections (b), (c), (d) and (i) of this section and after transferring to the State Lottery Fund created under section eighteen of this article an amount equal to any transfer from the State Lottery Fund to the Excess Lottery Fund pursuant to subsection (f), section eighteen of this article, deposit fifty percent of the amount by which annual gross revenue deposited in the State Excess Lottery Revenue Fund exceeds $225 million in a fiscal year in a separate account in the State Lottery Fund to be available for appropriation by the Legislature.

(h) When bonds are issued for projects under subsection (d) (e) of this section or for the School Building Authority, infrastructure, higher education or park improvement purposes described in this section that are secured by profits from lotteries deposited in the State Excess Lottery Revenue Fund, the Lottery Director shall allocate first to the Economic Development Project Fund an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director; and second, to the fund or funds from which debt service is paid on bonds issued under this section for the School Building Authority, infrastructure, higher education and park improvements an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued as certified to the Lottery Director. In the event there are insufficient funds available in any month to transfer the amounts required pursuant to this subsection, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.

(i) Prior to the distributions provided in subsection (d) of this section, the Lottery Commission shall deposit into the General Revenue Fund amounts necessary to provide reimbursement for the refundable credit allowable under section twenty-one, article twenty-one, chapter eleven of this code.

(j)(1) The Legislature considers the following as priorities in the expenditure of any surplus revenue funds:

(A) Providing salary and/or increment increases for professional educators and public employees;

(B) Providing adequate funding for the Public Employees Insurance Agency; and

(C) Providing funding to help address the shortage of qualified teachers and substitutes in areas of need, both in number of teachers and in subject matter areas.

(2) The provisions of this subsection may not be construed by any court to require any appropriation or any specific appropriation or level of funding for the purposes set forth in this subsection.

(k) The Legislature further directs the Governor to focus resources on the creation of a prescription drug program for senior citizens by pursuing a Medicaid waiver to offer prescription drug services to senior citizens; by investigating the establishment of purchasing agreements with other entities to reduce costs; by providing discount prices or rebate programs for seniors; by coordinating programs offered by pharmaceutical manufacturers that provide reduced cost or free drugs; by coordinating a collaborative effort among all state agencies to ensure the most efficient and cost-effective program possible for the senior citizens of this state; and by working closely with the state's congressional delegation to ensure that a national program is implemented. The Legislature further directs that the Governor report his or her progress back to the Joint Committee on Government and Finance on an annual basis until a comprehensive program has been fully implemented.

(l) After all of the expenditures in subsections (a) through (i) of this section have been satisfied in any fiscal year, the next $2 million shall be distributed as follows:

(1) On the last day of the fiscal year that begins on July 1, 2010, and for each fiscal year thereafter, forty-six percent shall be placed in the general purse fund of a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992, for payment of regular purses;

(2) Forty-three and one half percent shall be distributed to the racing commission special account - unredeemed pari-mutual tickets established on behalf of a thoroughbred racetrack licensee that did participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992;

(3) Five and one half percent shall be distributed to the racing commission special account - unredeemed pari-mutuel tickets established on behalf of a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992; and

(4) Five percent shall be distributed to the West Virginia racing commission special account - greyhound breeding development fund.


WVC 29 - 22 - 18 B §29-22-18b. Definition of term "state employees."
As used in subsection (b), section eighteen-a of this article, the term "state employees" does not include those state employees who are employed within the higher education system of the state or within the judicial or legislative branches of the government of this state.


WVC 29 - 22 - 18 C §29-22-18c. Increase in allocation to Higher education Improvement Fund from State Excess Lottery Revenue Fund.
Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $10 million into the Higher Education Improvement Fund for Higher Education set forth above is for the fiscal year beginning July 1, 2009, only. For the fiscal year beginning July 1, 2010, and subsequent fiscal years, the commission shall deposit $15 million into the Higher Education Improvement Fund for Higher Education.


WVC 29 - 22 - 18 D §29-22-18d. Allocation to West Virginia Infrastructure Lottery Revenue Debt Service Fund and West Virginia Infrastructure Fund from State Excess Lottery Revenue Fund beginning July 1, 2011.
     Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $40 million into the West Virginia Infrastructure Fund set forth above is for the fiscal year beginning July 1, 2010, only. For the fiscal year beginning July 1, 2011, and each fiscal year thereafter, in lieu of the deposits required under subdivision (5), subsection (d), section eighteen-a of this article, the commission shall, first, deposit $6 million into the West Virginia Infrastructure Lottery Revenue Debt Service Fund created in subsection (h), section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of that subsection, and, second, deposit $40 million into the West Virginia Infrastructure Fund created in subsection (a), section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of that article.
WVC 29 - 22 - 18 E §29-22-18e. Increase in allocation to State Park Improvement Fund from State Excess Lottery Revenue Fund to permit the issuance of bonds for improvements to Cacapon Resort State Park and Beech Fork State Park.

     Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $5 million into the State Park Improvement Fund set forth in section eighteen-a of this article is for the fiscal year beginning July 1, 2012, only. For the fiscal year beginning July 1, 2013, and each fiscal year thereafter, in lieu of the deposits required under subdivision (7), subsection (d), section eighteen-a of this article, the commission shall deposit an amount equal to the certified debt service requirement for the following fiscal year, not to exceed $3 million in any one fiscal year, into the Cacapon and Beech Fork State Park Lottery Revenue Debt Service Fund created in section sixteen-b, article fifteen, chapter thirty-one of this code, to be used in accordance with the provisions of that section, and second, deposit $5 million into the State Park Improvement Fund, established in subsection (d), section eighteen-a of this article, to be used in accordance with the provisions of that section.
WVC 29 - 22 - 19 §29-22-19. Post audit of accounts and transactions of office.
Before the first day of July, two thousand one and at least every two fiscal years thereafter, the legislative auditor shall conduct a post audit of all accounts and transactions of the state lottery office. The cost of the audit shall be paid out of the state lottery fund moneys designated for payment of operating expenses. The commission shall have an annual audit performed by an independent certified public accountant, and the audits may be accepted by the legislative auditor in lieu of performance of its post audit.


WVC 29 - 22 - 20 §29-22-20. Monthly and annual reports.

(a) The director shall, upon the twentieth day of each month, provide the joint committee on government and finance of the Legislature with a report reviewing the lottery operations, including, but not limited to, the amount of gross sales, the amount of net profit, the types of games being played, the number of licensed sales agents, the names and amounts of winners and any other information requested by the Legislature or by the joint committee on government and finance.

(b) The director shall, no later than the tenth day of each regular session of the Legislature, provide to the Legislature, legislative auditor, governor and state treasurer an annual report focused upon subjects of interest concerning lottery operations, including, but not limited to, an annual financial analysis of the lottery operations, a discussion of the types of games played and revenues generated, a statement of expenditures for the last fiscal year, a summary of the benefit programs and recommendations to the Legislature.


WVC 29 - 22 - 21 §29-22-21. Officials who may appear at lottery drawing.

No elected or appointed official, other than the members of the lottery commission, the director or deputy directors, may preside or appear at any lottery drawing.


WVC 29 - 22 - 22 §29-22-22.
Repealed.

Acts, 2004 Reg. Sess., Ch. 59.
WVC 29 - 22 - 23 §29-22-23. Procurement; disclosures by vendors and related persons and entities; authorizing background investigation; unenforceability of contracts in contravention of section.
(a) The commission shall utilize the provisions of article three, chapter five-a of this code in the procurement of all commodities, printing, services and goods, materials, lottery tickets and other items necessary for the commission and lottery, subject to the provisions of subsection (b) of this section.

(b) For the printing of tickets used in any lottery game, any goods or services involving the receiving or recording of number selection of any lottery game, or any goods or services involving the determination of winners on any lottery game, which are hereby referred to as major procurements, the commission shall evaluate the competence, integrity, character, reputation and background of the vendor. To allow for this evaluation, potential vendors shall supply the following information prior to the submission of an initial bid or proposal and on or before the first day of July of each year thereafter;

(1) If the vendor is a corporation, the officers, directors and each stockholder in such corporation; except that, in the case of stockholders of publicly held equity securities of a publicly traded corporation, only the names and address of those known to the corporation to own beneficially five percent or more of such securities need be disclosed; and

(2) If the vendor is a partnership or joint venture, all of the general and limited partners or joint venturers; if such general and limited partners or joint venturers are themselves a partnership, joint venture, trust, association, corporation, subsidiary or intermediary corporation, the same information required by this section shall be supplied for such entities also;

(3) If the vendor is a trust, the name of the trustee;

(4) If the vendor is an association, the members, officers and directors; and

(5) If the vendor intends to or does subcontract to another person or entity any integral or substantial portion of the work to be performed in supplying such materials or equipment, then the vendor shall supply the above-mentioned information for all such persons or entities.

(6) The following information shall also be submitted:

(A) Other jurisdictions in which the vendor has contracts to supply gaming materials or equipment and the types of gaming materials or equipment involved therewith;

(B) The details of any felony conviction of a criminal offense, state or federal, of the vendor or any person whose name and address are required by this section;

(C) The details of any disciplinary action of a judicial nature relating to gaming taken by any state or person against the vendor or any person whose name and address are required by this section;

(D) The number of years the vendor has been in the business of supplying gaming materials or equipment;

(E) A disclosure of each state and jurisdiction in which the vendor has been denied, or has had revoked a gaming license of any kind, and the disposition of such in each such state or jurisdiction. If any gaming license has been revoked or has not been renewed or any gaming license application has been either denied or is pending and has remained pending for more than six months, all of the facts and circumstances underlying such failure to receive such license must be disclosed;

(F) A disclosure of the details of any bankruptcy, insolvency, reorganization or any pending litigation relating to gaming of each vendor;

(G) A signed authorization by each vendor and officer thereof allowing the deputy director for security to conduct a background investigation of such person; and

(H) Such other information, accompanied by such documents, as the commission, by rule or contract procurement documents, mayrequire as being necessary or appropriate in the public interest to accomplish the purposes of this section.

(c) No contract for the supply of gaming materials or equipment for use in the operation of the state lottery is enforceable against the state if the provisions of this section are not complied with.


WVC 29 - 22 - 24 §29-22-24. Disclosures by vendors and related persons and entities of political contributions.
(a) For purposes of this section:

"Vendor" means any person required to make any disclosure under the provisions of section twenty-three of this article.

"Major procurement" has the same meaning as set out in section twenty-three of this article.

(b) Prior to the submission of the initial bid or proposal, and on or before the first day of July of each year thereafter, a vendor who is submitting an initial bid or proposal to, or who has submitted such within the preceding twelve months to, or who has a current contract with, the state lottery commission or any state agency, board or commission or political subdivision, for any major procurement, shall file with the secretary of state a detailed itemized disclosure statement, subscribed and sworn to before an officer authorized to administer oaths, setting forth each contribution to any local, state or federal political candidate or political committee in this state, made in the preceding three years, or a statement that no such contributions have been made.


WVC 29 - 22 - 25 §29-22-25. Preemption of state laws or local regulation.
(a) No state or local law or regulation providing any penalty, disability, restriction, regulation or prohibition for the manufacture, transportation, storage, distribution, advertising, possession or sale of any lottery tickets or materials or for the operation of any lottery shall apply to authorized operations by or for the state lottery or commission.

(b) The provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict herewith: Provided, That nothing herein shall invalidate any zoning law, or Sunday closing law under article ten, chapter sixty-one of this code.

(c) Nothing in this article shall be deemed to permit the operation of any lottery otherwise prohibited by the laws of this state, not owned and operated by this state and permitted by this article.


WVC 29 - 22 - 26 §29-22-26.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 29 - 22 - 27 §29-22-27. Penalties for criminal violations.
(a) Any person violating any of the provisions of this article, except sections eleven and twelve of this article, is guilty of a misdemeanor, and, upon conviction thereof, for the first offense, shall be fined not less than one hundred nor more than five hundred dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

(b) Any person violating any of the provisions of this article, except sections eleven and twelve of this article, shall, for the second offense, be guilty of a felony, and, upon conviction thereof, shall be fined not more than one thousand dollars, or be imprisoned in the penitentiary for not less than one year, or both fined and imprisoned.


WVC 29 - 22 - 27 A §29-22-27a. Payment of prizes to the bureau for child support enforcement.
(a) Upon notification by the bureau for child support enforcement that a person who is entitled to all or part of a lottery prize is delinquent in the payment of child support or spousal support, the director shall forward to the bureau for child support enforcement the prize or portion to be distributed directly from the state lottery office that is available to be applied to the delinquent support payment.

(b) The director shall enter into a written agreement with the bureau for child support enforcement for the purpose of establishing a procedure for the collection of prizes as set forth in subsection (a) of this section. The director shall include in the agreement a method by which the bureau for child support enforcement will receive the names of lottery winners as expeditiously as possible.


WVC 29 - 22 - 28 §29-22-28. Severability.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable.


WVC 29 - 22 - 29 §29-22-29. Moneys transferred or allocated to nongovernmental entities are state moneys and have been so in the past; right to audit state moneys transferred to nongovernmental entities.
(a) Moneys transferred by the commission under provisions of this article and articles twenty-two-a, twenty-two-b, twenty-two-c and twenty-five of this chapter to nongovernmental recipients, are state moneys and have been state moneys in prior fiscal periods.

(b) All nongovernmental entities that have received state moneys as described in subsection (a) of this section are subject to audit by the commission. An audit provided for by this section may be conducted by employees or agents of the commission. An audit provided for by this section may also be conducted by the Legislative Auditor.


WVC 29 - 22 A- ARTICLE 22A. RACETRACK VIDEO LOTTERY.


WVC 29 - 22 A- 1 §29-22A-1. Short title.

This article shall be known and may be cited as the "Racetrack Video Lottery Act."


WVC 29 - 22 A- 2 §29-22A-2. Legislative findings and declarations.

(a) The Legislature finds and declares that the limited video lottery games authorized by this article are "lotteries" as that term is commonly understood and as that term is used in West Virginia Constitution, article VI, section thirty-six, the video lottery games authorized by this article being lottery games which utilize advanced computer technology; and that the Constitution grants to the Legislature the authority to establish, by general law, the manner of regulation, control, ownership and operation of lottery games in the state of West Virginia.

(b) The Legislature further finds and declares that the state can control, own and operate a video lottery by possessing a proprietary interest in the main logic boards, all erasable, programmable read-only memory chips used in any video lottery equipment or games, and software consisting of computer programs, documentation and other related materials necessary for the video lottery system to be operated. The state may acquire a proprietary interest in video lottery game software, for purposes of this article, through outright ownership or through an exclusive product license agreement with a manufacturer whereby the manufacturer retains copyrighted ownership of the software but the license granted to the state is nontransferable and authorizes the state to run the software program, solely for its own use, on the state's central equipment unit and electronic video terminals networked to the central equipment unit.

(c) The Legislature further finds and declares that the state can control and regulate a video lottery if the state limits licensure to a limited number of video lottery facilities located at qualified horse or dog racetracks, extends strict and exclusive state regulation to all persons, locations, practices and associations related to the operation of licensed video lottery facilities, and provides comprehensive law enforcement supervision of video lottery activities.

(d) The Legislature further finds and declares that since the public has an interest in video lottery operations and since lottery operations conducted pursuant to West Virginia Constitution, article VI, section thirty-six, and under this article represent an exception to the general statutory policy of the state concerning wagering for private gain, participation in a video lottery by a licensee or permittee under this article shall be deemed a privilege conditioned upon the proper and continued qualification of the licensee or permittee and upon the discharge of the affirmative responsibility of each licensee to provide to the regulatory and investigatory authorities established by this article any assistance and information necessary to assure that the policies declared by this article are achieved. Consistent with this policy, it is the intent of this article to preclude the creation of any property right in any license or permit issued by the state under this article, the accrual of any value to the privilege of participation in any video lottery operation, or the transfer of any license or permit, and to require that participation in video lottery operations be solely conditioned upon the individual qualifications of persons seeking such privilege.

(e) The purpose of this article is to define and provide specific standards for the operation of video lottery games at pari-mutuel racing facilities licensed by the state racing commission pursuant to article twenty-three, chapter nineteen of this code. The Legislature finds and declares that the existing pari-mutuel racing facilities in West Virginia provide a valuable tourism resource for this state and provide significant economic benefits to the citizens of this state through the provision of jobs and the generation of state revenues; that this valuable tourism resource is threatened because of a general decline in the racing industry and because of increasing competition from racing facilities and lottery products offered by neighboring states; and that the survival of West Virginia's pari-mutuel racing industry is in jeopardy unless modern lottery games areauthorized at the racetracks.


WVC 29 - 22 A- 3 §29-22A-3. Definitions.

     As used in this article:

     (a) "Applicant" means any person applying for any video lottery license or permit.

     (b) "Associated equipment" means any hardware located on a licensed racetrack's premises which is connected to the video lottery system for the purpose of performing communication, validation or other functions, but not including the video lottery terminals or the communication facilities of a regulated public utility.

     (c) "Background investigation" means a security, criminal and credit investigation of a person, as defined in this section, who has applied for a video lottery license or permit, or who has been granted a video lottery license or permit.

     (d) "Central computer," "central control computer" or "central site system" means any central site computer provided to and controlled by the commission to which video lottery terminals communicate for purposes of information retrieval and terminal activation and to disable programs.

     (e) "Commission" or "State Lottery Commission" means the West Virginia Lottery Commission created by article twenty-two of this chapter.

     (f) "Control" means the authority to direct the management and policies of an applicant or a license or permit holder.

     (g) "Costs" means the expenses incurred by the commission in the testing and examination of video lottery terminals and the performance of background investigations and other related activities which are charged to and collected from applicants or license or permit holders.

     (h) "Director" means the individual appointed by the Governor to provide management and administration necessary to direct the State Lottery Office.

     (i) "Disable" or "terminal disable" means the process of executing a shutdown command from the central control computer which causes video lottery terminals to cease functioning.

     (j) "Display" means the visual presentation of video lottery game features on a video lottery terminal in the form of video images, actual symbols or both.

     (k) "EPROM" and "erasable programmable read-only memory chips" means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and which can also be in the form of CD-ROM, flash RAM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be the property of the State of West Virginia.

     (l) "Floor attendant" means a person, employed by a licensed racetrack, who holds a permit issued by the commission and who corrects paper jams and bill jams in video lottery terminals and also provides courtesy services for video lottery players.

     (m) "Gross terminal income" means the total amount of cash, vouchers or tokens inserted into the video lottery terminals operated by a licensee, minus the total value of coins and tokens won by a player and game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets.

     (n) "License" or "video lottery license" means authorization granted by the commission to a racetrack which is licensed by the West Virginia Racing Commission to conduct thoroughbred or greyhound racing meetings pursuant to article twenty-three, chapter nineteen of this code permitting the racetrack to operate video lottery terminals authorized by the commission.

     (o) "Lottery" means the public gaming systems or games established and operated by the State Lottery Commission.

     (p) "Manufacturer" means any person holding a permit granted by the commission to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which it is housed, and whose product is intended for sale, lease or other assignment to a licensed racetrack in West Virginia, and who contracts directly with the licensee for the sale, lease or other assignment to a licensed racetrack in West Virginia.

     (q) "Net terminal income" means gross terminal income minus an amount deducted by the commission to reimburse the commission for its actual costs of administering racetrack video lottery at the licensed racetrack. No deduction for any or all costs and expenses of a licensee related to the operation of video lottery games shall be deducted from gross terminal income.

     (r) "Noncash prize" means merchandise which a video lottery player may be given the option to receive in lieu of cash in exchange for a winning redemption ticket and which shall be assigned a redemption value equal to the actual cost of the merchandise to the licensed racetrack.

     (s) "Own" means any beneficial or proprietary interest in any property or business of an applicant or licensed racetrack.

     (t) "Pari-mutuel racing facility," "licensed racetrack," "racetrack" or "track" means a facility where horse or dog race meetings are held and the pari-mutuel system of wagering is authorized pursuant to the provisions of article twenty-three, chapter nineteen of this code: Provided, That, for the purposes of this article, "pari-mutuel racing facility," "licensed racetrack," "racetrack" or "track" includes only a facility which was licensed prior to January 1, 1994, to hold horse or dog race meetings, and which conducts not less than two hundred twenty live racing dates for each horse or dog race meeting or such other number of live racing dates as may be approved by the Racing Commission in accordance with the provisions of section twelve-b, article twenty- three, chapter nineteen of this code.

     (u) "Permit" means authorization granted by the commission to a person to function as either a video lottery manufacturer, service technician or validation manager.

     (v) "Person" means any natural person, corporation, association, partnership, limited partnership, or other entity, regardless of its form, structure or nature.

     (w) "Player" means a person who plays a video lottery game on a video lottery terminal at a racetrack licensed by the commission to conduct video lottery games.

     (x) "Service technician" means a person, employed by a licensed racetrack, who holds a permit issued by the commission and who performs service, maintenance and repair on licensed video lottery terminals in this state.

     (y) "Video lottery game" means a commission approved, owned and controlled electronically simulated game of chance which is displayed on a video lottery terminal and which:

     (1) Is connected to the commission's central control computer by an on-line or dial-up communication system;

     (2) Is initiated by a player's insertion of coins, currency, vouchers or tokens into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credit entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;

     (3) Allows the player to win additional game play credits, coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free play credits, coins or tokens to be awarded for each winning combination of symbols or numbers or both;

     (4) Is based upon computer-generated random selection of winning combinations based totally or predominantly on chance;

     (5) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and

     (z) "Validation manager" means a person who holds a permit issued by the commission and who performs video lottery ticket redemption services.

     (aa) "Video lottery" means a lottery which allows a game to be played utilizing an electronic computer and an interactive computer terminal device, equipped with a video screen and keys, a keyboard or other equipment allowing input by an individual player, into which the player inserts coins, currency, vouchers or tokens as consideration in order for play to be available, and through which terminal device the player may receive free games, coins, tokens or credit that can be redeemed for cash, annuitized payments over time, a noncash prize or nothing, as may be determined wholly or predominantly by chance. "Video lottery" does not include a lottery game which merely utilizes an electronic computer and a video screen to operate a lottery game and communicate the results of the game, such as the game "Travel," and which does not utilize an interactive electronic terminal device allowing input by an individual player.

     (bb) "Video lottery terminal" means a commission-approved interactive electronic terminal device which is connected with the commission's central computer system, and which is used for the purpose of playing video lottery games authorized by the commission. A video lottery terminal may simulate the play of one or more video lottery games.

     (cc) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.
WVC 29 - 22 A- 4 §29-22A-4. Video lottery games authorized.

The state lottery commission is authorized to implement and operate video lottery games at pari-mutuel racing facilities in this state in accordance with the provisions of this article and the applicable provisions of article twenty-two of this chapter. The provisions of article twenty-two of this chapter apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two of this chapter.


WVC 29 - 22 A- 5 §29-22A-5. Video lottery terminal requirements; filing of specific game rules with the secretary of state; application for approval of a video lottery terminal; testing of video lottery terminals; report of test results; modifications to previously approved models; conformity to prototype; seizure and destruction of terminals.

(a) Video lottery terminals registered with and approved by the commission for use at licensed racetracks may offer video lottery games regulated, controlled, owned and operated by the commission in accordance with the provisions of this section, and utilizing specific game rules separately filed from time to time by the commission with the secretary of state.

(b) A manufacturer may not sell or lease a video lottery terminal for placement at a licensed racetrack in this state unless the terminal has been approved by the commission. Only manufacturers with permits may apply for approval of a video lottery terminal or associated equipment. The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.

(c) The commission may require that two working models of a video lottery terminal be transported to the location designated by the commission for testing, examination and analysis.

(1) The manufacturer shall pay all costs of testing, examination, analysis and transportation of such video lottery terminal models. The testing, examination and analysis of any video lottery terminal model may require dismantling of the terminal and some tests may result in damage or destruction to one or more electronic components of such terminal model. The commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal.

(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the acceptance test conducted by the commission, the manufacturer shall make all modifications required by the commission.

(d) After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article. Prior to approving a particular terminal model, the commission may require a trial period not in excess of sixty days for a licensed racetrack to test the terminal. During the trial period, the manufacturer may not make any modifications to the terminal model unless such modifications are approved by the commission.

(e) The video lottery terminal manufacturer and licensed racetrack are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment. The manufacturer and licensed racetrack shall not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved by the commission. The request must contain a detailed description of the type of change, the reasons for the change and technical documentation of the change.

(f) Each video lottery terminal approved for placement at a licensed racetrack must conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission. If any video lottery terminal or any video lottery terminal modification, which has not been approved by the commission, is supplied by a manufacturer and operated by alicensed racetrack, the commission shall seize and destroy all of that licensed racetrack's and manufacturer's noncomplying video lottery terminals and shall suspend the license and permit of the licensed racetrack and manufacturer.


WVC 29 - 22 A- 6 §29-22A-6. Video lottery terminal hardware and software requirements; hardware specifications; software requirements for randomness testing; software requirements for percentage payout; software requirements for continuation of video lottery game after malfunction; software requirements for play transaction records.
     (a) The commission may approve video lottery terminals and in doing so shall take into account advancements in computer technology, competition from nearby states and the preservation of jobs in the West Virginia pari-mutuel racing industry. In approving video lottery terminals licensed for placement in this state, the commission shall ensure that the terminals meet the following hardware specifications:

     (1) Electrical and mechanical parts and design principles may not subject a player to physical hazards or injury.

     (2) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of one hundred eighty days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.

     (3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.

     (4) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.

     (5) A minimum of one electronic or mechanical coin acceptor or other means accurately and efficiently to establish credits shall be installed on each video lottery terminal. Each video lottery terminal may also contain bill acceptors for any legal United States currency. All coin and bill acceptors shall be approved by the commission prior to use on any video lottery terminal in this state.

     (6) Access to the interior of a video lottery terminal shall be controlled through a series of locks and seals.

     (7) The main logic boards and all erasable programmable read-only memory chips (EPROMS) are considered to be owned by the commission and shall be located in a separate locked and sealed area within the video lottery terminal.

     (8) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.

     (9) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may be approved by the commission.

     (10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and retaining an exact legible copy within the video lottery terminal or other means of capturing and retaining an electronic copy of the ticket data as approved by the commission: Provided, That such printing mechanism is optional on any video lottery terminal which is designed and equipped exclusively for coin or token payouts. The following information shall be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:

     (i) The number of credits accrued;

     (ii) Value of the credits in dollars and cents displayed in both numeric and written form;

     (iii) Time of day and date;

     (iv) Validation number; and

     (v) Any other information required by the commission.

     (11) A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:

     (i) Manufacturer of the video lottery terminal;

     (ii) Serial number of the terminal; and

     (iii) Model number of the terminal.

     (12) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play which are incomplete, confusing, misleading or inconsistent with game rules approved by the commission. For each video lottery game there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols. A video lottery terminal may allow the amounts of minimum and maximum wagers on a single game to be determined by licensee or permit holder in the exercise of its business judgment subject to the approval of the commission. All information required by this subdivision shall be displayed under glass or another transparent substance. No stickers or other removable devices shall be placed on the video lottery terminal screen or face without the prior approval of the commission.

     (13) Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the commission's central computer system by use of a communications protocol provided by the commission to each permitted manufacturer, which protocol shall include information retrieval and terminal activation and disable programs, and the commission may require each licensed racetrack to pay the cost of a central site computer as a part of the licensing requirement.

     (14) All video lottery terminals shall have a security system which temporarily disables the gaming function of the terminal while opened.

     (b) Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:

     (1) Chi-square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence level using the standard chi-square statistical analysis of the difference between the expected result and the observed result.

     (2) Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the runs test for the existence of recurring patterns within a set of data.

     (3) Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play.

     (4) Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.

     (c) Each video lottery terminal shall meet the following maximum and minimum theoretical percentage payout during the expected lifetime of the terminal:

     (1) Video lottery games shall pay out no less than eighty percent and no more than ninety-five percent of the amount wagered. The theoretical payout percentage will be determined using standard methods of probability theory.

     (2) Manufacturers must file a request and receive approval from the commission prior to manufacturing for placement in this state video lottery terminals programmed for a payout greater than ninety-two percent of the amount wagered. Commission approval shall be obtained prior to applying for testing of the high payout terminals.

     (3) Each terminal shall have a probability greater than one in seventeen million of obtaining the maximum payout for each play.

     (d) Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction shall be returned to the player.

     (e) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:

     (1) Number of coins inserted by players or the coin equivalent if a bill acceptor is being used or tokens or vouchers are used;

     (2) Number of credits wagered;

     (3) Number of total credits, coins and tokens won;

     (4) Number of credits paid out by a printed ticket;

     (5) Number of coins or tokens won, if applicable;

     (6) Number of times the logic area was accessed;

     (7) Number of times the cash door was accessed;

     (8) Number of credits wagered in the current game;

     (9) Number of credits won in the last complete video lottery game; and

     (10) Number of cumulative credits representing money inserted by a player and credits for video lottery games won but not collected.

     (f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, all meter readings shall be recorded in the presence of a commission employee.

     (g) The primary responsibility for the control and regulation of any video lottery games and video lottery terminals operated pursuant to this article rests with the commission.

     (h) The commission shall, directly or through a contract with a third-party vendor other than the video lottery licensee, maintain a central site system of monitoring the lottery terminals utilizing an on-line or dial-up inquiry. The central site system shall be capable of monitoring the operation of each video lottery game or video lottery terminal operating pursuant to this article and, at the direction of the director, immediately disable and cause not to operate any video lottery game and video lottery terminal. As provided in this section, the commission may require the licensed racetrack to pay the cost of a central site computer as part of the licensing requirement.
WVC 29 - 22 A- 7 §29-22A-7. License and permit qualifications; individual qualifications; applicant required to furnish information; waiver of liability; oath or affirmation; duty to provide accurate and material information.
(a) No video lottery license or permit may be granted unless the commission has determined that the applicant satisfies all of the following qualifications:

(1) An applicant for a video lottery license must hold a valid racing license granted by the West Virginia racing commission under provisions of article twenty-three, chapter nineteen of this code.

(2) An applicant must be a person of good character and integrity.

(3) An applicant must be a person whose background, including criminal record, reputation and associations, does not pose a threat to the security and integrity of the lottery or to the public interest of the state. All new applicants for licenses and permits issued by the commission shall furnish fingerprints for a national criminal records check by the criminal identification bureau of the West Virginia state police and the federal bureau of investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the criminal investigation bureau and the federal bureau of investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the criminal identification bureau of the West Virginia state police and the federal bureau of investigation. A person who has been convicted of any violation of article twenty-two of this chapter or of this article or of any crime related to theft, bribery, gambling or involving moral turpitude is not eligible for any license or permit. The commission shall revoke the license or permit of any person who is convicted of any such crime after a license or permit is granted.

(4) An applicant must be a person who demonstrates the business ability and experience necessary to establish, operate and maintain the business for which a video lottery license or permit application is made.

(5) An applicant must be a person who has secured adequate financing for the business for which a video lottery license or permit application is made. The commission shall determine whether financing is from a source which meets the qualifications of this section and is adequate to support the successful performance of the duties and responsibilities of the licensed racetrack or permit holder. An applicant for a video lottery license shall disclose all financing or refinancing arrangements for the purchase, lease or other acquisition of video lottery terminals and associated equipment in the degree of detail requested by the commission. A licensed racetrack shall request commission approval of any change in financing or lease arrangements at least thirty days before the effective date of the change.

(6) A racetrack applying for a video lottery license or a license renewal must present to the commission evidence of the existence of an agreement, regarding the proceeds from video lottery terminals, between the applicant and the representative of a majority of the horse owners and trainers, the representative of a majority of the pari-mutuel clerks and the representative of a majority of the breeders or the representative of a majority of the kennel owners for the applicable racetrack who hold permits required by section two, article twenty-three, chapter nineteen of this code.

(7) A racetrack applying for a video lottery license or a license renewal must file with the commission a copy of any current or proposed agreement between the applicant and any manufacturer for the sale, lease or other assignment to the racetrack of video lottery terminals, the electronic computer components of the terminals, the random number generator of the terminals, or the cabinet in which it is housed. Once filed with the commission, the agreement is a public document subject to the provisions of article one, chapter twenty-nine-b of this code.

(b) No video lottery license or permit may be granted to an applicant until the commission determines that each person who has control of the applicant meets all applicable qualifications of subsection (a) of this section. The following persons are considered to have control of an applicant:

(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation.

(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant.

(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.

(c) Applicants must furnish all information, including financial data and documents, certifications, consents, waivers, individual history forms and other materials requested by the commission for purposes of determining qualifications for a license or permit. No video lottery license or permit may be granted to an applicant who fails to provide information and documentation requested by the commission. The burden of proving qualification for any video lottery license or permit is on the applicant.

(d) Each applicant bears all risks of adverse public notice, embarrassment, criticism, damages or financial loss which may result from any disclosure or publication of any material or information obtained by the commission pursuant to action on an application. The applicant shall, as a part of its application, expressly waive any and all claims against the commission, the state of West Virginia and the employees of either for damages as a result of any background investigation, disclosure or publication relating to an application for a video lottery license or permit.

(e) All application, registration and disclosure forms and other documents submitted to the commission by or on behalf of the applicant for purposes of determining qualification for a video lottery license or permit shall be sworn to or affirmed before an officer qualified to administer oaths.

(f) An applicant who knowingly fails to reveal any fact material to qualification or who knowingly submits false or misleading material information is ineligible for a video lottery license or permit.


WVC 29 - 22 A- 8 §29-22A-8. Form of application; local option elections; issuance of license; notice of incomplete application; notice of license or permit denial, suspension or revocation; procedure for review of license or permit denial, suspension or revocation; fees, renewal fees and renewal dates; bonding; renewal of licenses and permits; notice of change affecting license or permit; license or permit not transferrable or assignable.
(a) The commission shall determine the form of applications to be used and shall not consider incomplete applications. The commission may consider an application when the applicant has completed and executed all forms and documents required by the commission and all application fees and costs have been paid.

(b) The question of whether video lottery games shall be permitted at pari-mutuel racetracks shall be determined by local option election in each county in which a pari-mutuel racetrack is located. The local option election on this question may be placed on the ballot in each county at any general election. The county commission of the county in which the racetrack is located shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.

On the local option election ballot shall be printed the following:

Shall West Virginia lottery commission video lottery games be permitted within an area at the [name of racetrack] in which pari-mutuel betting is authorized by law?

[ ] Yes[ ] No

(Place a cross mark in the square opposite your choice.)

The ballots shall be counted, returns made and canvassed as in general elections, and the results certified by the commissioners of election to the county commission. The county commission shall, without delay, certify the result of the election to the commission.

(c) Upon receipt of the results of the election from the county commission, and if a majority has voted "yes", the commission shall issue the requested license if the applicant is otherwise qualified for the license. If a majority has voted "no", the commission shall notify the applicant of the results, the application shall be denied, and another election on the issue shall not be held for a period of two years: Provided, That for purposes of this section, the term "two years" means the interval between a general election and the next general election, and in no event shall it mean or encompass a period of time in excess of one hundred four weeks. If a majority has voted "yes", another local option election on the issue shall not be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which the horse or dog racetrack is located. The petition may be in any number of counterparts.

The petition shall be in the following form:

Petition For Local Option Election
We, the undersigned legally qualified voters, resident within the county of __________________, do hereby petition that a special election be held within the county of _________________ upon the following question: Shall West Virginia lottery commission video lottery games be permitted within an area at the [name of racetrack] in which pari-mutuel betting is authorized by law?

Name Address Date

(Post office or street address)

(d) The commission may not issue any license or permit until background investigations are concluded. The commission shall make an affirmative determination that the applicant is qualified and the applicable license or permit fees have been paid prior to issuing any license or permit.

(e) The commission shall notify the applicant if an application is incomplete and the notification shall state the deficiencies in the application.

(f) The commission shall notify applicants in writing of the denial, suspension or revocation of a permit or license and the reasons for the denial, suspension or revocation in accordance with the provisions of section fifteen of this article.

(g) An applicant may request a hearing to review a license or permit denial, suspension or revocation in accordance with section fifteen of this article.

(h) The following license or permit fees shall be paid annually by each licensed racetrack, or permitted manufacturer, service technician, floor attendant or validation manager:

(1) Racetrack: ................................. $1,000

(2) Manufacturer: ..............................$10,000

(3) Service technician: ...........................$100

(4) Validation manager: ............................$50

(5) Floor attendant: ..............................$50

The fees shall be paid to the commission at the time of license or permit application and on or before the first day of July of each year thereafter, at which time the license or permit may be renewed.

(i) An applicant for a video lottery license shall, prior to the issuance of the license, post a bond or irrevocable letter of credit in a manner and in an amount established by the commission. The bond shall be issued by a surety company authorized to transact business in West Virginia and the company shall be approved by the insurance commissioner of this state as to solvency and responsibility.

(j) The commission shall renew video lottery licenses and permits annually as of the first day of July of each year, if each person seeking license or permit renewal submits the applicable renewal fee, completes all renewal forms provided by the commission, and continues to meet all qualifications for a license or permit.

(k) License and permit holders shall notify the commission of any proposed change of ownership or control of the license or permit holder and of all other transactions or occurrences relevant to license or permit qualification. In order for a license or permit to remain in effect, commission approval is required prior to completion of any proposed change of ownership or control of a license or permit holder.

(l) A license or permit is a privilege personal to the license or permit holder and is not a legal right. A license or permit granted or renewed pursuant to this article may not be transferred or assigned to another person, nor may a license or a permit be pledged as collateral. The purchaser or successor of any license or permit holder shall independently qualify for a license or permit. The sale of more than five percent of a license or permit holder's voting stock, or more than five percent of the voting stock of a corporation which controls the license or permit holder or the sale of a license or permit holder's assets, other than those bought and sold in the ordinary course of business, or any interest therein, to any person not already determined to have met the qualifications of section seven of this article voids the license unless the sale has been approved in advance by the commission.


WVC 29 - 22 A- 9 §29-22A-9. General duties of all video lottery license and permit holders; duties of permitted manufacturers; duties of permitted service technicians; duties of permitted validation managers; duties of floor attendants; duties of licensed racetracks.
(a) All video lottery license and permit holders shall:

(1) Promptly report to the commission any facts or circumstances related to video lottery operations which constitute a violation of state or federal law;

(2) Conduct all video lottery activities and functions in a manner which does not pose a threat to the public health, safety or welfare of the citizens of this state, and which does not adversely affect the security or integrity of the lottery;

(3) Hold the commission and this state harmless from and defend and pay for the defense of any and all claims which may be asserted against a license or permit holder, the commission, the state or the employees thereof, arising from the license or permit holder's participation in the video lottery system authorized by this article;

(4) Assist the commission in maximizing video lottery revenues;

(5) Maintain all records required by the commission;

(6) Upon request by the commission, provide the commission access to all records and the physical premises of the business or businesses where the license or permit holder's video lottery activities occur, for the purpose of monitoring or inspecting the license or permit holder's activities and the video lottery games, video lottery terminals and associated equipment; and

(7) Keep current in all payments and obligations to the commission.

(b) Manufacturers shall:

(1) Manufacture terminals and associated equipment for placement in this state in accordance with the specifications and procedures specified in sections five and six of this article;

(2) Manufacture terminals and associated equipment to ensure timely delivery to licensed racetracks;

(3) Maintain and provide an inventory of spare parts to assure the timely repair and continuous operation of licensed video lottery terminals intended for placement in this state;

(4) Provide to licensed racetracks and permitted service technicians technical assistance and training in the service and repair of video lottery terminals and associated equipment so as to assure the continuous authorized operation and play of the video lottery terminals; and

(5) Obtain certification of compliance under the provisions of part fifteen of the federal communication commission rules for all video lottery terminals placed in this state.

(c) Service technicians shall:

(1) Maintain all skills necessary for the timely repair and service of licensed video lottery terminals and associated equipment so as to ensure the continued, approved operation of those terminals;

(2) Attend all commission mandated meetings, seminars and training sessions concerning the repair and maintenance of licensed video lottery terminals and associated equipment; and

(3) Promptly notify the commission of any electronic or mechanical video lottery terminal malfunctions.

(d) Validation managers shall:

(1) Attend all commission mandated meetings, seminars and training sessions concerning the validation and redemption of video lottery winning tickets and the operation of all ticket validation terminals and equipment;

(2) Maintain all skills necessary for the accurate validation of video lottery tickets; and

(3) Supervise video lottery ticket validation procedures at the applicable licensed racetrack.

(e) Floor attendants shall:

(1) Provide change and assistance to persons playing video lottery games in a licensed racetrack video lottery gaming area;

(2) Open video lottery terminal access doors to clear ticket paper jams and to insert new paper ticket tapes into the video lottery terminals; and

(3) Open video lottery terminal access doors to clear bill jams from the bill acceptors in video lottery terminals.

(f) The specific duties required of all licensed racetracks are as follows:

(1) Acquire video lottery terminals by purchase, lease or other assignment and provide a secure location for the placement, operation and play of the video lottery terminals;

(2) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or on-line communication between each video lottery terminal and the commission's central control computer;

(3) Permit no person to tamper with or interfere with the operation of any video lottery terminal;

(4) Ensure that telephone lines from the commission's central control computer to the video lottery terminals located at the licensed racetrack are at all times connected and prevent any person from tampering or interfering with the operation of the telephone lines;

(5) Ensure that video lottery terminals are within the sight and control of designated employees of the licensed racetrack;

(6) Ensure that video lottery terminals are placed and remain placed in the specific locations within the licensed racetrack which have been approved by the commission. No video lottery terminal or terminals at a racetrack shall be relocated without the prior approval of the commission;

(7) Monitor video lottery terminals to prevent access to or play by persons who are under the age of eighteen years or who are visibly intoxicated;

(8) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;

(9) Provide no access by a player to an automated teller machine (ATM) in the area of the racetrack where video lottery games are played, accept no credit card or debit card from a player for the exchange or purchase of video lottery game credits or for an advance of coins or currency to be utilized by a player to play video lottery games, and extend no credit, in any manner, to a player so as to enable the player to play a video lottery game;

(10) Pay for all credits won upon presentment of a valid winning video lottery ticket;

(11) Report promptly to the manufacturer and the commission all video lottery terminal malfunctions and notify the commission of the failure of a manufacturer or service technician to provide prompt service and repair of such terminals and associated equipment;

(12) Conduct no video lottery advertising and promotional activities without the prior written approval of the director;

(13) Install, post and display prominently at locations within or about the licensed racetrack, signs, redemption information and other promotional material as required by the commission;

(14) Permit video lottery to be played only during those hours established and approved by the commission;

(15) Maintain general liability insurance coverage for all video lottery terminals in an amount of at least two million dollars per claim;

(16) Promptly notify the commission in writing of any breaks or tears to any logic unit seals;

(17) Assume liability for lost or stolen money from any video lottery terminal; and

(18) Submit an audited financial statement, which has been approved by the commission, to the commission when applying for a license or permit and annually thereafter prior to the time a license or permit may be renewed.


WVC 29 - 22 A- 10 §29-22A-10. Accounting and reporting; commission to provide communications protocol data; distribution of net terminal income; remittance through electronic transfer of funds; establishment of accounts and nonpayment penalties; commission control of accounting for net terminal income; settlement of accounts; manual reporting and payment may be required; request for reports; examination of accounts and records.
     (a) The commission shall provide to manufacturers, or applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.

     (b) The gross terminal income of a licensed racetrack shall be remitted to the commission through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. Licensed racetracks must provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the commission:

     (1) The commission shall deduct an amount sufficient to reimburse the commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the State Lottery Fund. For the fiscal years ending June 30,2011 through June 30, 2020, the term "actual costs and expenses" may include transfers of$ up to $10 million in surplus allocations for each fiscal year, as calculated by the commission when it has closed its books for the fiscal year, to the Licensed Racetrack Modernization Fund created by subdivision(2), subsection (b) of this section. For all fiscal years beginning on or after July 1, 2001, the commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on June 30, 2001, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on June 30, 2001, shall be deposited into the fund established in section eighteen-a, article twenty-two of this chapter; and

     (2) A Licensed Racetrack Modernization Fund is created within the lottery fund. For all fiscal years beginning on or after July 1, 2011, and ending with the fiscal year beginning July 1, 2020, the commission shall deposit such amounts as are available according to subdivision (1), subsection (b) of this section into a separate facility modernization account maintained within the Licensed Racetrack Modernization Fund for each racetrack. Each racetrack's share of each year's deposit shall be calculated in the same ratio as each racetrack's apportioned contribution to the four percent administrative costs and expenses allowance provided for in subdivision (1), subsection (b) of this section for that year. For each two dollars expended by a licensed racetrack for facility modernization improvements at the racetrack, having a useful life of three or more years and placed in service after July 1, 2011, the licensed racetrack shall receive $1 in recoupment from its facility modernization account. If the licensed racetrack's facility modernization account contains a balance in any fiscal year, the unexpended balance from that fiscal year will be available for matching for one additional fiscal year, after which time, the remaining unused balance carried forward shall revert to the lottery fund. For purposes of this section, the term "facility modernization improvements" includes acquisitions of new and unused video lottery terminals and related equipment. Video lottery terminals financed through the recoupment provided in this subdivision must be retained by the licensee in its West Virginia licensed location for a period of not less than five years from the date of initial installation.

     (c) The amount resulting after the deductions required by subsection (b) of this section constitutes net terminal income that shall be divided as set out in this subsection. For all fiscal years beginning on or after July 1, 2001, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on June 30, 2001, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:

     (1) The commission shall receive thirty percent of net terminal income, which shall be paid into the State Lottery Fund as provided in section ten-a of this article;

     (2) Until July 1, 2005, fourteen percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee, and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code, on and after July 1, 2005, the rate shall be seven percent of net terminal income;

     (3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:

     (A) Beginning July 1, 1999, and thereafter, any amount in excess of the two percent received during the fiscal year 1999 by a county in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before January 1, 1999 shall be divided as follows:

     (i) The county shall receive fifty percent of the excess amount; and

     (ii) The municipalities of the county shall receive fifty percent of the excess amount, said fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and

     (B) Beginning July 1, 1999, and thereafter, any amount in excess of the two percent received during the fiscal year 1999 by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before January 1, 1999 shall be divided, if applicable, as follows:

     (i) The county shall receive fifty percent of the excess amount; and

     (ii) The municipality shall receive fifty percent of the excess amount; and

     (C) This proviso shall not affect the amount to be received under this subdivision by any other county other than a county described in paragraph (A) or (B) of this proviso;

     (4) One percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the licensed racing association;

     (5) The West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income;

     (6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code.

     (7) A licensee shall receive forty-six and one-half percent of net terminal income.

     (8)(A) The Tourism Promotion Fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year beginning July 1, 2003, the tourism commission shall transfer from the Tourism Promotion Fund $5 million of the three percent of the net terminal income described in this section and section ten-b of this article into the fund administered by the West Virginia Economic Development Authority pursuant to section seven, article fifteen, chapter thirty-one of this code, $5 million into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code and $5 million into the Tax Reduction and Federal Funding Increased Compliance Fund; and

     (B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after June 30, 2004, this three percent of net terminal income and the three percent of net terminal income described in paragraph (B), subdivision (8), subsection (a), section ten-b of this article shall be distributed as provided in this paragraph as follows:

     (i) 1.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Tourism Promotion Fund created under section twelve, article two, chapter five-b of this code;

     (ii) 0.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Development Office Promotion Fund created under section three-b, article two, chapter five-b of this code;

     (iii) 0.5 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Research Challenge Fund created under section ten, article one-b, chapter eighteen-b of this code;

     (iv) 0.6875 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code; and

     (v) 0.0625 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the 2004 Capitol Complex Parking Garage Fund administered by the Department of Administration pursuant to section five-a, article four, chapter five-a of this code;

     (9)(A) On and after July 1, 2005, seven percent of net terminal income shall be deposited into the Workers' Compensation Debt Reduction Fund created in section five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision totals $11 million, all subsequent distributions under this subdivision shall be deposited in the special fund established by the licensee and used for the payment of regular purses in addition to the other amounts provided in article twenty-three, chapter nineteen of this code;

     (B) The deposit of the seven percent of net terminal income into the Worker's Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds and shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided in article twenty-three, chapter nineteen of this code, on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to article two-d, chapter twenty-three of this code, have been retired or payment of the debt service provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the old fund, as defined in chapter twenty-three of this code, has been paid or provided for in its entirety; and

     (10) The remaining one percent of net terminal income shall be deposited as follows:

     (A) For the fiscal year beginning July 1, 2003, the veterans memorial program shall receive one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the State Capitol Complex in Charleston, West Virginia. The moneys shall be deposited in the State Treasury in the Division of Culture and History special fund created under section three, article one-i, chapter twenty-nine of this code: Provided, That only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than $20,000 of the one percent of net terminal income provided in this subdivision shall be deposited into a special revenue fund in the State Treasury, to be known as the "John F. 'Jack' Bennett Fund". The moneys in this fund shall be expended by the Division of Veterans Affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The Division of Veterans Affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker and setting forth the standards to be used to determine the priority in which the veterans grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, $100,000 of the one percent of net terminal income provided in this subdivision shall be deposited in the special fund in the Division of Culture and History created under section three, article one-i, chapter twenty-nine of this code and be expended by the Division of Culture and History to establish a West Virginia veterans memorial archives within the Cultural Center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That $500,000 of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state Capitol Complex; and the remainder of the one percent of net terminal income shall be deposited in equal amounts in the Capitol Dome and Improvements Fund created under section two, article four, chapter five-a of this code and Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one of this chapter.

     (B) For each fiscal year beginning after June 30, 2004:

     (i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the State Capitol Complex; and

     (ii) The remainder of the one percent of net terminal income and all of the one percent of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of this article shall be distributed as follows: The net terminal income shall be deposited in equal amounts into the Capitol Dome and Capitol Improvements Fund created under section two, article four, chapter five-a of this code and the Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one, chapter twenty-nine of this code until a total of $1,500,000 is deposited into the Cultural Facilities and Capitol Resources Matching Grant Program Fund; thereafter, the remainder shall be deposited into the Capitol Dome and Capitol Improvements Fund.

     (d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the commission on dates established by the commission. Upon a licensed racetrack's failure to maintain this balance, the commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the commission.

     (e) The commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed racetrack shall report to the commission any discrepancies between the commission's statement and each terminal's mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the commission's billing statement.

     (f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software. If the meter readings and the commission's records cannot be reconciled, final disposition of the matter shall be determined by the commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the commission.

     (g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.

     (h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the commission. The commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.

     (i) The commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed racetrack's possession, under its control or in which it has an interest and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the commission.
WVC 29 - 22 A- 10 A §29-22A-10a. Lottery commission income to be deposited in state lottery fund.

Notwithstanding the provisions of subdivision one, subsection (c), section ten of this article, beginning on the first day of July, one thousand nine hundred ninety-five and continuing thereafter, the net terminal income received by the commission shall be paid into the state lottery fund created by section eighteen, article twenty-two of this chapter, to be appropriated by the Legislature: Provided, That income deposited pursuant to this section shall not be subject to the provisions of subsections (b), (c), (d) or (e), section eighteen, article twenty-two of this chapter.


WVC 29 - 22 A- 10 B §29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of July, two thousand one, any amount of net terminal income generated annually by a licensed racetrack in excess of the amount of net terminal income generated by that licensed racetrack during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as follows:

(1) The Commission shall receive forty-one percent of net terminal income, which the Commission shall deposit in the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter;

(2) Until the first day of July, two thousand five, eight percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided in article twenty-three, chapter nineteen of this code; on and after the first day of July, two thousand five, the rate shall be four percent of net terminal income;

(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income Provided, That:

(A) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia thoroughbred development fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:

(i) The county shall receive fifty percent of the excess amount; and

(ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and

(B) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:

(i) The county shall receive fifty percent of the excess amount; and

(ii) The municipality shall receive fifty percent of the excess amount; and

(C) This proviso shall not affect the amount to be received under this subdivision by any county other than a county described in paragraph (A) or (B) of this proviso;

(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the licensed racing association;

(5) The West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income.

(6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;

(7) A licensee shall receive forty-two percent of net terminal income;

(8) The tourism promotion fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income shall be distributed pursuant to the provisions of paragraph (B), subdivision (8), subsection (c), section ten of this article;

(9) (A) On and after the first day of July, two thousand five, four percent of net terminal income shall be deposited into the Workers' Compensation Debt Reduction Fund created in section five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision together with the total allocation transferred by the operation of subdivision (9), subsection (c), section ten of this article totals eleven million dollars, all subsequent distributions under this subdivision (9) during that fiscal year shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided in article twenty-three, chapter nineteen of this code;

(B) The deposit of the four percent of net terminal income into the Worker's Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds, which shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided in article twenty-three, chapter nineteen of this code on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to article two-d, chapter twenty-three of this code have been retired or payment of the debt service is provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the Old Fund, as defined in chapter twenty-three of this code, has been paid or provided in its entirety; and

(10) (A) One percent of the net terminal income shall be deposited in equal amounts in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter; and

(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this one percent of net terminal income shall be distributed pursuant to the provisions of subparagraph (ii), paragraph (B), subdivision (9), subsection (c), section ten of this article.

(b) The Commission may establish orderly and effective procedures for the collection and distribution of funds under this section in accordance with the provisions of this section and section ten of this article.


WVC 29 - 22 A- 10 C §29-22A-10c. Surcharge; Capital Reinvestment Fund.
     (a) For all fiscal years beginning on or after July 1, 2001, there shall be imposed a surcharge of ten percent against the excess of total net terminal income generated from a licensed racetrack for that fiscal year over total net terminal income from that licensed racetrack for the fiscal year ending June 30, 2001.

     (b) A Capital Reinvestment Fund is hereby created within the Lottery Fund. Forty-two percent of the surcharge amount attributable to each racetrack shall be retained by the commission and deposited into a separate Capital Reinvestment Account for that licensed racetrack. For each dollar expended by a licensed racetrack for capital improvements at the racetrack, at the location of any amenity associated with the licensed racetrack's destination resort facility operations, or at adjacent facilities owned by the licensee, having a useful life of three or more years and placed in service after April 1, 2001, the licensed racetrack shall receive $1 in recoupment from its Capital Reinvestment Fund Account: Provided, That in the case of thoroughbred horse tracks, four cents of every dollar in recoupment shall be reserved into a separate account, which shall only be spent on capital improvements and upgrading to facilities used for the housing and care of horses, facilities located inside the perimeter of the racing surface, including the surface thereof, facilities used for housing persons responsible for the care of horses, and that any such capital improvements and upgrading shall be subject to recoupment under this section only if they have been approved by the Horsemen's Benevolent and Protective Association acting on behalf of the horsemen: Provided, however, That in the case of greyhound race tracks, four cents of every dollar in recoupment shall be spent on capital improvements and upgrading in the kennel area or other areas at the track. If a licensed racetrack's unrecouped capital improvements exceed its capital reinvestment fund account at the end of any fiscal year, the excess improvements may be carried forward to fifteen subsequent fiscal years.

     (c) Fifty-eight percent of the surcharge amount plus any moneys remaining in a racetrack's Capital Reinvestment Fund Account at the end of any fiscal year shall be deposited in the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.
WVC 29 - 22 A- 11 §29-22A-11. Maintenance of video lottery terminals; manufacturers required to provide training; notice of availability of training; reports and certificates of training programs; terminals to be maintained in the condition approved; maintenance log required; keys to video lottery terminals; notice of repairs to the logic area; notice of broken seals on logic board.

(a) No video lottery terminal may be placed in operation in this state until the manufacturer provides training in the service and repair of each approved video lottery terminal model and service technicians complete such training. Manufacturers must submit to the commission the following information on each training program conducted:

(1) An outline of the training curriculum;

(2) A list of the instructors and their qualifications;

(3) Instructional materials; and

(4) The time, dates and location of the training programs.

(b) Manufacturers shall notify all licensed racetracks who have purchased or leased that manufacturer's video lottery terminals of all scheduled training programs. Training programs must be scheduled at convenient locations within this state to facilitate attendance by service technicians. Manufacturers must inform licensed racetracks of any new developments in the service and repair of video lottery terminals and provide appropriate subsequent training programs.

(c) The manufacturers shall issue training certificates to each person upon successful completion of a video lottery training program. The certificate shall include the name of the person who completed the training program and the date and the location of the training program. A person who successfully completes training is eligible for a service technician's permit. No person may conduct maintenance on any video lottery terminal or associated equipment unless the commission has issued a service technician permit to that person.

(d) Each manufacturer shall file with the commission the following information within two weeks after the completion of a training program:

(1) The name of each person who attended and completed the training program;

(2) The name of the manufacturer offering the course;

(3) The manufacturer's video lottery terminal models on which training for service and repair was provided;

(4) The date and location of the training program; and

(5) Copies of all certificates of completion.

(e) A written maintenance log shall be kept within the main cabinet access area in each video lottery terminal. Every person, including lottery personnel, who gains entry into any internal space of a video lottery terminal must sign the log, record the time and date of entry, record the mechanical meter readings and list the areas inspected or repaired. The maintenance log forms shall be retained by licensed racetracks for a period of three years from the date of the last entry. The maintenance logs shall be available upon request for inspection by the commission.

(f) Licensed racetracks shall provide the commission with a master key for access into the main cabinet door of each video lottery terminal placed in operation. A logic box seal shall be provided by the commission. The seal shall be affixed by commission personnel to prevent unauthorized access to the video lottery terminal logic unit.

(g) No repairs to, or replacement of, the logic board or circuitry within the logic area may occur unless authorized commission personnel are present and observe the repairs or replacement. The logic area seal shall not be broken by anyone other than authorized commission personnel. Each service technician shall submit a written report within twenty-four hours after the repairs or replacement are completed and the report shall include the serial number of any replacement board and thenew logic area seal number.

(h) The software eproms on the logic board of each video lottery terminal shall be tested by the commission prior to sealing the logic area. Licensed racetracks or permit holders shall notify the commission in writing of any discovered damage, tears or breaks in the logic area seal and, upon notice, the video lottery terminal shall be disabled. The video lottery terminal shall remain disabled until completion by the commission of an investigation of the seal damage.


WVC 29 - 22 A- 12 §29-22A-12. Number and location of video lottery terminals security.
(a) A racetrack which has been licensed to conduct video lottery games has the right to install and operate up to four hundred video lottery terminals at a licensed racetrack. A licensed racetrack may apply to the commission for authorization to install and operate more than four hundred video lottery terminals. If the commission determines that the installation of additional machines is in the best interest of the licensed racetrack, the lottery commission and the citizens of this state, the commission may grant permission to install and operate additional machines.

(b) All video lottery terminals in licensed racetracks shall be physically located as follows:

(1) The video lottery location shall be continuously monitored through the use of a closed circuit television system capable of recording activity for a continuous 24-hour period. All video tapes shall be retained for a period of at least thirty days;

(2) Access to video lottery terminal locations shall be restricted to persons legally entitled by age to play video lottery games;

(3) The licensed racetrack shall submit for commission approval a floor plan of the area or areas where video lottery terminals are to be operated showing terminal locations and security camera mount locations;

(4) No video lottery terminal may be relocated without prior approval from the commission; and

(5) Operational video lottery terminals may only be located in the building or structure in which the grandstand area of the racetrack is located and in the area of the building or structure where pari-mutuel wagering is permitted under the provisions of article twenty-three, chapter nineteen of this code: Provided, That if the commission, before the first day of November, one thousand nine hundred ninety-three, has authorized any racetrack to operate video lottery terminals and offer video lottery games in a location which would not conform to the requirements of this subdivision, the racetrack may continue to use video lottery terminals registered with and approved by the commission at that nonconforming location and to offer the games and any variations or composites of the games as may be approved by the commission.

(c) A licensee shall allow video lottery games to be played only on days when live racing is being conducted at the racetrack and/or on televised racing days: Provided, That this restriction shall not apply to any racetrack authorized by the commissioner prior to the first day of November, one thousand nine hundred ninety-three, to operate video lottery terminals and conduct video lottery games.

(d) Security personnel shall be present during all hours of operation at each video lottery terminal location. Each license holder shall employ the number of security personnel the commission determines is necessary to provide for safe and approved operation of the video lottery facilities and the safety and well-being of the players.


WVC 29 - 22 A- 13 §29-22A-13. Payment of credits; no state liability; method of payment; restrictions on payment of credits; redeemed tickets required to be defaced; liability for video lottery terminal malfunction.
(a) No payment for credits awarded on a video lottery terminal may be made unless the ticket meets the following requirements:

(1) The ticket is fully legible and printed on paper approved by the commission and the ticket contains all information required by this article;

(2) The ticket is not mutilated, altered, unreadable or tampered with in any manner;

(3) The ticket is not counterfeit, in whole or in part; and

(4) The ticket is presented by a person authorized to play video lottery pursuant to this article.

(b) Each licensed racetrack shall designate validation managers and employees authorized to redeem tickets and to sell and redeem tokens during the business hours of operation. Credits shall be immediately paid in cash, by check, by annuitized payments over time or in the form of a noncash prize, when a player presents a valid ticket for payment.

(c) Licensed racetracks shall not redeem tickets for credits awarded on video lottery terminals which are not located on its premises. A ticket must be presented for payment no later than ten days after the date the ticket is printed. The commission is not liable for the payment of any video lottery ticket credits.

(d) All tickets redeemed by a licensed racetrack shall be defaced in a manner which prevents any subsequent presentment and payment.

(e) The commission is not responsible for any video lottery terminal malfunction which causes a credit to be wrongfully awarded or denied to players. The licensed racetrack is solely responsible for any wrongful award or denial of credits.


WVC 29 - 22 A- 14 §29-22A-14. Transportation and registration of video lottery.

(a) Trucking companies or common carriers shipping video lottery terminals shall be bonded and shall ship all terminals in sealed trailers.

(b) A manufacturer transporting one or more video lottery terminals into this state shall, prior to shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and permit number of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name, address and license number of the licensed racetrack to which the video lottery terminals are being sent and the destination of the terminals if different from the address;

(4) The number of video lottery terminals in the shipment;

(5) The serial number of each video lottery terminal in the shipment;

(6) The model number and description of each video lottery terminal in the shipment; and

(7) The expected arrival date of the video lottery terminals at their respective destination within this state.

(c) A licensed racetrack which purchases or leases a video lottery terminal shall, upon receipt of the terminal, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and license number of the licensed racetrack receiving the video lottery terminal;

(2) The full name, address and permit number of the manufacturer from whom the video lottery terminal was received;

(3) The serial number of each video lottery terminal received;

(4) The model number and description of each video lottery terminal received;

(5) The expected date and time of video lottery terminal arrival; and

(6) The expected date and time of video lottery terminal installation, and if a video lottery terminal is not placed in operation, the licensed racetrack must notify the commission of the location where the terminal is stored.

(d) Any person transporting a video lottery terminal from one location to another in this state, other than for repair or servicing purposes, shall notify the commission in writing prior to the transportation of the terminal and provide the following information on forms required by the commission:

(1) The full name, address and license number of the person or entity transporting the video lottery terminal;

(2) The reason for transporting the video lottery terminal;

(3) The full name, address and license number of the person or entity to whom the terminal is being sent and the destination of the video lottery terminal if it is different from the address;

(4) The serial and model number of the video lottery terminal;

(5) The video lottery terminal license number, if affixed;

(6) The manufacturer of the video lottery terminal; and

(7) The expected date and time of video lottery terminal installation or reinstallation.

(e) Any person shipping video lottery terminals to a destination outside of this state shall, prior to the shipment, provide the commission with the following information on forms prescribed by the commission:

(1) The full name, address and license or permit number of the person shipping the video lottery terminals;

(2) The method of shipment and the name of the carrier;

(3) The full name and address of the person to whom the video lottery terminals are being sent and the destination of the video lottery terminals if different from the address;

(4) The serial number of each video lottery terminal being shipped;

(5) The model number and description of the video lottery terminal being shipped;

(6) The video lottery terminal control number, if affixed;

(7) The manufacturer of the video lottery terminal being shipped; and

(8) The expected date and time of the shipment.

(f) Each video lottery terminal placed in operation in this state must have a commission registration decal permanently affixed, with a video lottery terminal registration control number placed thereon. A decal registration fee is hereby imposed. The amount of the fee shall equal six percent of the total consideration paid to the manufacturer for the use or the ownership of the video lottery terminal. The fee shall be paid by the manufacturer to the commission prior to the receipt of the registration decal. The registration decal fee shall be collected by the commission and deposited to the credit of the general revenue fund of the state. No person other than authorized commission personnel shall affix or remove a registration control number. The affixing of the commission decal on a video lottery terminal evidences that the decal registration fee has been paid and that the terminal has been registered, inspected and approved for operation in this state. No terminal may be transported out of this state until authorized commission personnel have removed the commission registration control number.


WVC 29 - 22 A- 15 §29-22A-15. Hearing and appeal procedure; order refusing license or permit or suspending or revoking same; petition for hearing; petition requirements; cost of hearings; subpoenas and subpoenas duces tecum; no stay of suspension or revocation order; hearing date; place of hearing; continuances; absence of petitioner; hearing; argument and briefs; evidence admissible at hearing; record of proceedings; commission's decision; appeal to circuit court.

(a) If the commission refuses to issue a license or permit, or suspends or revokes a license or permit, it shall make and enter an order to that effect including a statement of the reasons for that action and shall, by certified mail, return receipt requested, mail a copy of the order to the applicant, or the license or permit holder, or serve the same in the manner provided for the service of legal process.

(b) Any applicant or licensee or permit holder adversely affected by such order has the right to a hearing thereon before the commission or a person designated as hearing examiner, if a petition in writing requesting a hearing is served upon the commission within ten days following the receipt of the order by such applicant, or license or permit holder.

(c) The petition for a hearing shall be in writing and shall include an original and one copy. The petition must contain the following:

(1) A clear and concise statement of each error which the petitioner alleges to have been committed by the commission in refusing to issue a license or permit, or suspending or revoking a license or permit, with each assignment of error b