ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 670
(Senators Kessler, Edgell, Helmick, Boley, Bowman, Barnes and Facemyer,
original sponsors)
____________
[Passed April 9, 2005; in effect from passage.]
___________
AN ACT to amend and reenact §3-8-5 of the Code of West Virginia,
1931, as amended; and to amend and reenact §19-21A-3,
§19-21A-4 §19-21A-5, §19-21A-6 and §19-21A-7 of said code, all
relating to electing supervisors for conservation districts;
defining certain terms; authorizing emergency rulemaking;
providing that registered voters in the district may vote for
supervisors and in referendum; requiring candidate for
supervisor file statement; requiring Conservation Committee
certify qualified candidates for ballot; providing that
candidate may not be on ballot or take office if
qualifications not met; and requiring certain reports.
Be it enacted by the Legislature of West Virginia:
That §3-8-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that §19-21A-3, §19-21A-4 §19-21A-5,
§19-21A-6 and §19-21A-7 of said code be amended and reenacted, all
to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-5. Detailed accounts and verified financial statements
required.
(a) Every candidate, financial agent, person and association
of persons, organization of any kind, including every corporation,
directly or indirectly, supporting a political committee
established pursuant to paragraph (C), subdivision (1), subsection
(b), section eight of this article or engaging in other activities
permitted by this section and also including the treasurer or
equivalent officer of the association or organization, advocating
or opposing the nomination, election or defeat of any candidate,
and the treasurer of every political party committee shall keep
detailed accounts of every sum of money or other thing of value
received by him or her, including all loans of money or things of
value, and of all expenditures and disbursements made, liabilities
incurred, by the candidate, financial agent, person, association or
organization or committee, for political purposes, or by any of the
officers or members of the Committee, or any person acting under
its authority or on its behalf.
(b) Every person or association of persons required to keep
detailed accounts under this section shall file with the officers
hereinafter prescribed a detailed itemized sworn statement,
according to the following provisions and times:
(1) On the last Saturday in March or within six days
thereafter and annually whenever the total of all financial
transactions relating to an election exceed five hundred dollars,
a statement which shall include all financial transactions which
have taken place by the date of that statement, subsequent to any previous statement filed within the previous five years under this
section;
(2) Not less than ten nor more than seventeen days preceding
each primary or other election, a statement which shall include all
financial transactions which have taken place by the date of the
statement, subsequent to the previous statement, if any;
(3) Not less than twenty-five nor more than thirty-one days
after each primary or other election, a statement which shall
include all financial transactions which have taken place by the
date of the statement, subsequent to the previous statement; and
(4) On the first Saturday in September or within six days
thereafter, preceding the general election day whenever the total
of all financial transactions relating to an election exceed five
hundred dollars or whenever any loans are outstanding, a statement
which shall include all financial transactions which have taken
place by the date of the statement, subsequent to the previous
statement.
(c) Every person who shall announce as a write-in candidate
for any elective office and his or her financial agent or election
organization of any kind shall comply with all of the requirements
of this section after public announcement of the person's candidacy
has been made.
(d) For purposes of this section, the term "financial
transactions" includes all contributions or loans received and all
repayments of loans or expenditures made to promote the candidacy
of any person by any candidate or any organization advocating or
opposing the nomination, election or defeat of any candidate to be
voted on.
(e) Candidates for the office of conservation district
supervisor elected pursuant to the provisions of article twenty-
one-a, chapter nineteen of this code shall only be required to file
the reports required by subdivisions (2) and (3), subsection (b) of
this section immediately prior to and after the general election.
CHAPTER 19. AGRICULTURE.
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-3. Definitions.
Wherever used or referred to in this article, unless a
different meaning clearly appears from the context:
(1) "Agency of this state" includes the government of this
state and any subdivision, agency or instrumentality, corporate or
otherwise, of the government of this state.
(2) "Committee" or "State Conservation Committee" means the
agency created in section four of this article.
(3) "District" or "conservation district" means a subdivision
of this state, organized in accordance with the provisions of this
article, for the purposes, with the powers and subject to the
restrictions hereinafter set forth.
(4) "Governing body" means the supervisors of any conservation
district, town or city, council, city commission, county court or
body acting in lieu of a county court, in this state, and the term
"governmental division" means any conservation district, town, city
or county in this state.
(5) "Land occupier" or "occupier of land" includes any person,
firm or corporation who shall hold title to, or shall be in
possession of, any lands lying within a district organized under
the provisions of this article, whether as owner, lessee, renter or tenant.
(6) "Landowners" or "owners of land" includes any person or
persons, firm or corporation who shall hold title to three or more
acres of any lands lying within a district organized under the
provisions of this article.
(7) "Notice" means notice published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such
publication shall be the county in which is located the appropriate
area. At any hearing held pursuant to such notice at the time and
place designated in such notice, adjournment may be made, from time
to time, without the necessity of renewing such notice for such
adjournment dates.
(8) "Petition" means a petition filed under the provisions of
subsection (a), section five of this article for the creation of a
district.
(9) "Soil conservation", "erosion control" or "erosion
prevention projects", when used throughout the article, shall
denote those projects that have been established by federal
agencies in cooperation with state agencies for the purpose of
demonstrating soil erosion control and water conservation
practices.
(10) "State" means the State of West Virginia.
(11) "Supervisor" means one of the members of the governing
body of a district, elected or appointed in accordance with the
provisions of this article.
(12) "United States" or "agencies of the United States"
includes the United States of America, Natural Resources Conservation Service of the United States Department of Agriculture
and any other agency or instrumentality, corporate or otherwise, of
the United States of America.
(13) "Works of improvement" means such structures as may be
necessary or convenient for flood prevention or the conservation,
development, utilization or disposal of water.
§19-21A-4. State conservation committee; continuation.
(a) The State Conservation Committee is continued. It serves
as an agency of the state and is to perform the functions conferred
upon it in this article. The committee consists of the following
ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry
Experiment Station;
(C) The Secretary of the Department of Environmental
Protection;
(D) The State Commissioner of Agriculture, who is the
chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of
Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the
Senate, the four citizen members. Members shall be appointed for
four-year terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. In the event
of a vacancy, the appointment is for the unexpired term.
(c) The Committee may invite the Secretary of Agriculture of
the United States of America to appoint one person to serve with
the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions,
shall adopt a seal, which shall be judicially noticed, and may
perform those acts, hold public hearings and adopt or propose for
legislative approval rules necessary for the execution of its
functions under this article.
(e) The State Conservation Committee may employ an
administrative officer, technical experts and other agents and
employees, permanent and temporary, as it requires. The
administrative officer and support staff shall be known as the West
Virginia Conservation Agency. The Committee shall determine their
qualifications, duties and compensation. The Committee may call
upon the Attorney General of the state for legal services it
requires. It may delegate to its chairperson, to one or more of
its members, or to one or more agents or employees powers and
duties it considers proper. The Committee may secure necessary and
suitable office accommodations and the necessary supplies and
equipment. Upon request of the Committee, for the purpose of
carrying out any of its functions, the supervising officer of any
state agency or of any state institution of learning shall, insofar
as may be possible, under available appropriations and having due
regard to the needs of the agency to which the request is directed,
assign or detail to the Committee, members of the staff or
personnel of the agency or institution of learning and make special
reports, surveys or studies required by the Committee.
(f) A member of the Committee holds office so long as he or she retains the office by virtue of which he or she is serving on
the Committee. A majority of the Committee is a quorum and the
concurrence of a majority in any matter within their duties is
required for its determination. The chairperson and members of the
Committee may receive no compensation for their services on the
Committee, but are entitled to reimbursement of expenses, including
traveling expenses necessarily incurred in the discharge of their
duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees
and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate public
record of all proceedings and of all resolutions, rules and orders
issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts
and disbursements.
(g) In addition to other duties and powers conferred upon the
State Conservation Committee, it may:
(1) Offer appropriate assistance to the supervisors of
conservation districts, organized as provided in this article, in
the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts,
organized under the provisions of this article, informed of the
activities and experience of all other districts organized under
this article and facilitate an interchange of advice and experience
between the districts and cooperation between them;
(3) Coordinate the programs of the several conservation
districts so far as this may be done by advice and consultation;
(4) Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this state in the work
of the districts;
(5) Disseminate information throughout the state concerning
the activities and programs of the conservation districts and
encourage the formation of the districts in areas where their
organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants
and appropriations in money, services, materials or otherwise from
the United States or any of its agencies, from the State of West
Virginia or from other sources and use or expend the money,
services, materials or other contributions in carrying out the
policy and provisions of this article, including the right to
allocate the money, services or materials in part to the various
conservation districts created by this article in order to assist
them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange,
lease, gift, grant, bequest, devise or otherwise any property, real
or personal, or rights or interests in the property; maintain,
administer, operate and improve any properties acquired; receive
and retain income from the property and to expend the income as
required for operation, maintenance, administration or improvement
of the properties or in otherwise carrying out the purposes and
provisions of this article; and sell, lease or otherwise dispose of
any of its property or interests in the property in furtherance of
the purposes and the provisions of this article. Money received
from the sale of land acquired in the small watershed program shall
be deposited in the special account of the State Conservation
Committee and expended as provided in this article.
(8) To promulgate emergency and legislative rules to
effectuate the provisions of this article as amended and reenacted
by the Legislature during the regular session of the Legislature in
the year two thousand five.
§19-21A-5. Creation of conservation districts.
(a) Any twenty-five owners of land lying within the limits of
the territory proposed to be organized into a district may file a
petition with the State Conservation Committee asking that a
conservation district be organized to function in the territory
described in the petition. The petition shall set forth:
(1) The proposed name of the district;
(2) That there is need, in the interest of the public health,
safety and welfare, for a conservation district to function in the
territory described in the petition;
(3) A description of the territory proposed to be organized as
a district, which shall not be required to be given by metes and
bounds or by legal subdivisions, but shall be deemed sufficient if
generally accurate;
(4) A request that the State Conservation Committee define the
boundaries for the district; that a referendum be held within the
territory so defined on the question of the creation of a
conservation district in the territory; and that the Committee
determine that a district be created.
Where more than one petition is filed covering neighboring
parts of the same region, whether or not these areas overlap, the
State Conservation Committee may consolidate all or any such
petitions.
(b) Within thirty days after a petition has been filed with the State Conservation Committee, it shall cause notice to be given
of a proposed hearing upon the question of the desirability and
necessity, in the interest of the public health, safety and
welfare, of the creation of such district, upon the question of the
appropriate boundaries to be assigned to such district, upon the
propriety of the petition and other proceedings taken under this
article and upon all questions relevant to such inquiries. Notice
of the date, place and time of the hearing shall be published no
less than fourteen days prior to the hearing as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area is the
county or counties where the proposed district is located. All
owners of land within the limits of the territory described in the
petition, and of lands within any territory considered for addition
to the described territory, and all other interested parties shall
have the right to attend the hearings and to be heard. If it
appears upon the hearing that it may be desirable to include within
the proposed district territory outside of the area within which
notice of the hearing has been given, the hearing shall be
adjourned and notice of further hearing shall be given throughout
the entire area considered for inclusion in the district and
another hearing held. After the hearing, if the Committee
determines, upon the facts presented at the hearing and other
relevant facts and information as may be available, that there is
need, in the interest of the public health, safety and welfare, for
a conservation district to function in the territory considered at
the hearing, it shall make and record such determination and shall
define, by metes and bounds or by legal subdivisions, the boundaries of such district. Districts thus defined may be a
watershed or portion thereof and nothing in this article shall be
interpreted to exclude from consideration, small areas often
constituting a very small part of a large watershed. The district
may be large or small, but in making that determination and in
defining the boundaries, the committee shall give due weight and
consideration to the topography of the area considered and of the
state, the composition of soils therein, the distribution of
erosion, the prevailing land-use practices, the desirability and
necessity of including within the boundaries the particular lands
under consideration and the benefits such lands may receive from
being included within the boundaries, the relation of the proposed
area to existing watersheds and agricultural regions and to other
conservation districts already organized or proposed for
organization under the provisions of this article and other
physical, geographical and economic factors as are relevant, having
due regard to the legislative determinations set forth in section
two of this article. The territory to be included within the
boundaries need not be contiguous. If the Committee determines
after the hearing, after consideration of the relevant facts, that
there is no need for a conservation district to function in the
territory considered at the hearing, it shall make and record its
determination and deny the petition. After six months shall have
expired from the date of the denial of any petition, subsequent
petitions covering the same or substantially the same territory may
be filed as aforesaid and new hearings held and determinations made
thereon.
(c) After the Committee has made and recorded a determination that there is need, in the interest of the public health, safety
and welfare, for the organization of a district in a particular
territory and has defined the boundaries thereof, it shall consider
the question whether the operation of a district within such
boundaries with the powers conferred upon conservation districts in
this article is administratively practicable and feasible. To
assist the Committee in the determination of administrative
practicability and feasibility, it is the duty of the Committee to
hold a referendum within the proposed district upon the proposition
of the creation of the district and to cause due notice of such
referendum to be given. The question of the creation of the
proposed district shall be submitted to the registered voters of
the proposed district at the next primary or general election. All
of the provisions of chapter three of this code, unless in conflict
with the provisions of this article, apply to voting and elections
on the referendum, insofar as practicable.
The question shall be submitted by ballots upon which the
words "For creation of a conservation district of the lands below
described and lying in the (counties) of ____________,
____________, and ____________. Against creation of a conservation
district of the lands below described and lying in the (counties)
of ___________, ____________, and ____________" shall appear, with
a square before each proposition and a direction to insert an X
mark in the square before one or the other of the propositions as
the voter may favor or oppose creation of a district. The ballot
shall set forth the boundaries of the proposed districts as
determined by the Committee.
(d) The Committee shall pay all expenses for the issuance of notices and conducting hearings. It shall promulgate rules in
accordance with the provisions of article three, chapter
twenty-nine-a of this code governing the conduct of hearings.
(e) The Committee shall publish the result of the referendum
and shall thereafter consider and determine whether the operation
of the district within the defined boundaries is administratively
practicable and feasible. If the Committee determines that the
operation of the district is not administratively practicable and
feasible, it shall record its determination and deny the petition.
If the Committee shall determine that the operation of the district
is administratively practicable and feasible, it shall record the
determination and proceed with the organization of the district in
the manner hereinafter provided. In making its determination the
Committee shall give due regard and weight to the attitudes of the
occupiers of lands lying within the defined boundaries, the number
of landowners eligible to vote in the referendum who have voted,
the proportion of the votes cast in the referendum in favor of the
creation of the district to the total number of votes cast, the
approximate wealth and income of the land occupiers of the proposed
district, the probable expense of carrying on erosion-control
operations within the district and other economic and social
factors as may be relevant to the determination, having due regard
to the legislative determinations set forth in section two of this
article.
(f) If the Committee determines that the operation of the
proposed district within the defined boundaries is administratively
practicable and feasible, it shall appoint two supervisors to act
with the supervisors elected as provided hereinafter, as the governing body of the district.
(g) The two appointed supervisors shall present to the
Secretary of State an application signed by them which shall set
forth by recitals: (1) That a petition for the creation of the
district was filed with the State Conservation Committee pursuant
to the provisions of this article and that the proceedings
specified in this article were taken pursuant to the petition; that
the application is being filed in order to complete the
organization of the district under this article; and that the
Committee has appointed them as supervisors; (2) the name and
official residence of each of the supervisors, together with a
certified copy of the appointments evidencing their right to
office; (3) the term of office of each of the supervisors; (4) the
name which is proposed for the district; and (5) the location of
the principal office of the supervisors of the district. The
application shall be subscribed and sworn to by each of the
supervisors before an officer authorized by the laws of this state
to take and certify oaths, who shall certify upon the application
that he or she personally knows the supervisors and knows them to
be the officers as affirmed in the application and that each has
subscribed thereto in the officer's presence. The application
shall be accompanied by a statement by the State Conservation
Committee, which shall certify by recitals that a petition was
filed, notice issued and hearing held as aforesaid; that the
Committee did determine that there is need, in the interest of the
public health, safety and welfare, for a conservation district to
function in the proposed territory and did define the boundaries
thereof; that notice was given and a referendum held on the question of the creation of the district; that the result of the
referendum showed a majority of the votes cast in the referendum to
be in favor of the creation of the district; and that thereafter
the Committee did determine that the operation of the proposed
district is administratively practicable and feasible. The
statement shall set forth the boundaries of the district as they
have been defined by the Committee.
The Secretary of State shall examine the application and
statement and, if he or she finds that the name proposed for the
district is not identical with that of any other conservation
district of this state or so nearly similar as to lead to confusion
or uncertainty, he or she shall file them and shall record them in
an appropriate book of record in his or her office. If the
Secretary of State finds that the name proposed for the district is
identical with that of any other conservation district of this
state, or so nearly similar as to lead to confusion and
uncertainty, he or she shall certify that fact to the State
Conservation Committee which shall thereupon submit to the
Secretary of State a new name for the district, which shall not be
subject to defects. Upon receipt of the new name, free of defects,
the Secretary of State shall record the application and statement,
with the name so modified, in an appropriate book of record in his
or her office. The Secretary of State shall make and issue to the
supervisors a certificate, under the seal of the state, of the
organization of the district and shall record the certificate with
the application and statement. The boundaries of the district
shall include the territory as determined by the State Conservation
Committee as aforesaid, but in no event shall they include any area included within the boundaries of another conservation district
organized under the provisions of this article.
(h) After six months has expired from the date of entry of a
determination by the State Conservation Committee that operation of
a proposed district is not administratively practicable and
feasible and denial of a petition pursuant to such determination,
subsequent petitions may be filed as aforesaid and action taken
thereon in accordance with the provisions of this article.
(i) Petitions for including additional territory within an
existing district may be filed with the State Conservation
Committee and the proceedings herein provided for in the case of
petitions to organize a district shall be observed in the case of
petitions for inclusion. The Committee shall prescribe the form
for petitions, which shall be as nearly as may be in the form
prescribed in this article for petitions to organize a district.
Where the total number of landowners in the area proposed for
inclusion is less than twenty-five, the petition may be filed when
signed by a majority of the landowners of the area and in such case
no referendum need be held.
(j) In any suit, action or proceeding involving the validity
or enforcement of, or relating to, any contract, proceeding or
action of the district, the district shall be deemed to have been
established in accordance with the provisions of this article upon
proof of the issuance of the aforesaid certificate by the Secretary
of State. A copy of the certificate certified by the Secretary of
State shall be admissible in evidence in any suit, action or
proceeding and shall be proof of the filing and contents thereof.
§19-21A-6. Election of supervisors for each district.
Within thirty days after the date of issuance by the Secretary
of State of a certificate of organization of a conservation
district, nominating petitions may be filed with the State
Conservation Committee to nominate candidates for supervisors of
the district. A candidate for supervisor shall own land in the
district and have the education, training or experience necessary
to carry out the duties required by this article and rules
promulgated thereunder. A candidate shall file with the Committee
a sworn written statement specifying that he or she meets the
requirements of office. A candidate may not be placed on the
ballot or be seated as a supervisor unless he or she meets these
requirements. The Committee shall provide a list of qualified
candidates to the Secretary of State prior to any election for
supervisor at the time and in the manner specified by the
Secretary.
The Committee shall have authority to extend the time within
which nominating petitions may be filed. No nominating petition
shall be accepted by the Committee unless it is subscribed by
twenty-five or more owners of lands lying within the boundaries of
the district and within the boundaries of the county in which the
candidate resides. Registered voters in the district may sign more
than one nominating petition to nominate more than one candidate
for supervisor. All registered voters in the district shall be
eligible to vote in the election for two candidates from the county
or portion thereof within the boundaries of the district in which
they reside. The two candidates in each county who receive the
largest number of votes cast in the election shall be elected
supervisors for district.
Supervisors shall be elected in the general election to be
conducted in the year two thousand eight as nonpartisan candidates.
The term of office for supervisor receiving the second highest
number of votes in the general election of two thousand eight shall
be for two years, commencing on the first day of January, two
thousand nine, and ending on the thirty-first day of December, two
thousand eleven. Subsequent terms of office for supervisors
elected thereafter shall be for four years. Persons currently
holding the position of supervisor shall, regardless of the
expiration of the currently designated term of office, continue to
serve until the two thousand eight election. Unless otherwise
provided or in conflict with this article, the provisions of
chapter three shall apply to election of supervisors.
§19-21A-7. Supervisors to constitute governing body of district;
qualifications and terms of supervisors; powers and
duties.
(a) The governing body of the district consists of the
supervisors, appointed or elected, as provided in this article.
The supervisors shall be persons who are by training and experience
qualified to perform the specialized skilled services which are
required of them in the performance of their duties under this
section and shall be legal residents and landowners in the
district.
(b) The supervisors shall designate a chairperson and may,
from time to time, change the designation. On and after the
election of supervisors in two thousand eight, term of office of
each supervisor is four years. A supervisor holds office until his
or her successor has been elected or appointed. In case a new county or portion of a county is added to a district, the committee
may appoint a supervisor to represent it until the next regular
election of supervisors for the district takes place. If a vacancy
occurs among the elected supervisors of a district, the Committee
shall appoint a successor from the same county to fill the
unexpired term. The appointment shall be made from a name or list
of names submitted by the conservation district.
(c) A supervisor is entitled to expenses and a per diem not to
exceed thirty dollars when engaged in the performance of his or her
duties.
(d) The supervisors may, with the approval of the State
Committee, employ a secretary, technical experts and any other
officers, agents and employees, permanent and temporary, as they
may require and shall determine their qualifications, duties and
compensation. The supervisors may delegate to their chairperson,
to one or more supervisors or to one or more agents, or employees,
those administrative powers and duties they consider proper. The
supervisors shall furnish to the State Conservation Committee, upon
request, copies of the ordinances, rules, orders, contracts, forms
and other documents they adopt or employ and any other information
concerning their activities required in the performance of State
Conservation Committee's duties under this article.
(e) The supervisors shall:
(1) Require the execution of surety bonds for all employees
and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate record of
all proceedings and of all resolutions, rules and orders issued or
adopted; and
(3) Provide for an annual audit of the accounts of receipts
and disbursements.
(f) Any supervisor may be removed by the State Conservation
Committee upon notice and hearing for neglect of duty or
malfeasance in office, but for no other reason.
(g) The supervisors may invite the legislative body of any
municipality or county located near the territory comprised within
the district to designate a representative to advise and consult
with the supervisors of a district on all questions of program and
policy which may affect the property, water supply or other
interests of the municipality or county.