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Introduced Version Senate Bill 622 History

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Senate Bill No. 622

(By Senators Kessler (Mr. President), Green, Kirkendoll, Barnes, Cann, Facemire, Miller, D. Hall, Boley, Carmichael, Chafin, Edgell, Fitzsimmons, M. Hall, Stollings, Sypolt, Tucker, Walters, Wells, Williams, Yost, Unger, McCabe, Palumbo and Jenkins)

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[Introduced March 22, 2013; referred to the Committee on Education; and then to the Committee on Finance.]

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A BILL to amend and reenact §5-6-4a of the Code of West Virginia, 1931, as amended; to amend and reenact §18B-1-6 of said code; to amend and reenact §18B-1B-4 of said code; to amend and reenact §18B-2A-3 and §18B-2A-4 of said code; to amend and reenact §18B-9A-2 of said code; to amend and reenact §18B-10-1 of said code; and to amend said code by adding thereto a new section, designated §18B-19-19, all relating to higher education; providing additional authority to and flexibility measures for certain state institutions of higher education; excepting certain institutions from certain required reports to the Joint Committee on Government and Finance regarding real property contracts and agreements; modifying rule-making requirements and authority granted to certain institutions; modifying, reducing or eliminating requirements related to the review or approval by the Higher Education Policy Commission of capital projects and facilities, capital project financing, compensation packages for presidents, course credit transfer rules, tuition and fee policies and academic programs with respect to certain institutions; excepting certain institutions from the supervision of the Higher Education Policy Commission; excepting certain institutions from laws and rules relating to the administration of personnel matters, including classification, compensation and discipline; expanding the definition of “nonclassified employee” at certain institutions; transferring to certain institutions authority to approve tuition and fee increases; and providing flexibility and transferring to certain institutions the authority to undertake, develop, maintain and finance capital projects, campus development plans and related infrastructure and items.

Be it enacted by the Legislature of West Virginia:

    That §5-6-4a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §18B-1-6 of said code be amended and reenacted; that §18B-1B-4 of said code be amended and reenacted; that §18B-2A-3 and §18B-2A-4 of said code be amended and reenacted; that §18B-9A-2 of said code be amended and reenacted; that §18B-10-1 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18B-19-19, all to read as follows:

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 6. STATE BUILDINGS.

§5-6-4a. Review of real property contracts and agreements; master plan for office space.

    (a) The Secretary of Administration shall provide to the Joint Committee on Government and Finance a copy of a contract or agreement for real property exceeding $1 million and a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property and the agent involved in the sale, at least thirty days prior to any sale, exchange, transfer, purchase, lease purchase, lease or rental of real property, any refundings of lease purchases, leases or rental agreements, any construction of new buildings and any other acquisition or lease of buildings, office space or grounds by any state agency, but excepting the transactions the state institutions of higher education known as Marshall University and West Virginia University, and of the Higher Education Policy Commission, Council for Community and Technical College Education, state institutions of higher education and the Division of Highways for state road purposes pursuant to article two-a, chapter seventeen of this code: Provided, That a contract or agreement for the lease purchase, lease or rental of real property by any state agency, where the costs of real property acquisition and improvements are to be financed, in whole or in part, with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.

    (b) For renewals of contracts or agreements required to be reported by this section, the Secretary of Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property.

    (c) Within thirty days after receipt of the contract, agreement or report, the committee shall meet and review the contract, agreement or report.

CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1. GOVERNANCE.

§18B-1-6. Rulemaking.

    (a) The commission is hereby empowered to promulgate, adopt, amend or repeal rules, in accordance with article three-a, chapter twenty-nine-a of this code, subject to section three of this article. This grant of rule-making power does not limit, restrict, supplant or supersede the rule-making authority provided to Marshall University and West Virginia University pursuant to subdivision (c)(3)(D) of this section.

    (b) The council is hereby empowered to promulgate, adopt, amend or repeal rules in accordance with article three-a, chapter twenty-nine-a of this code, subject to section three of this article. This grant of rule-making power extends only to those areas over which the council has been granted specific authority and jurisdiction by law.

    (c) As it relates to the authority granted to governing boards of state institutions of higher education to promulgate, adopt, amend or repeal any rule under this code:

    (1) "Rule" means any regulation, guideline, directive, standard, statement of policy or interpretation of general application which has institution-wide effect or which affects the rights, privileges or interests of employees, students or citizens. Any regulation, guideline, directive, standard, statement of policy or interpretation of general application that meets this definition is a rule for the purposes of this section.

    (2) Regulations, guidelines or policies established for individual units, divisions, departments or schools of the institution, which deal solely with the internal management or responsibilities of a single unit, division, department or school or with academic curricular policies that do not constitute a mission change for the institution, are excluded from this subsection, except for the requirements relating to posting.

    (3) The commission and council each shall promulgate a rule to guide the development and approval of rules made by their respective governing boards, including except for the governing boards of Marshall University and West Virginia University, each of which may promulgate and implement rules pursuant to paragraph (D) of this subdivision. The rules promulgated by the commission and council shall include, but are not limited to, the following provisions which shall be included in the rule on or rules adopted by each governing board of a state institution of higher education:

    (A) A procedure to ensure that public notice is given and that the right of interested parties to have a fair and adequate opportunity to respond is protected, including providing for a thirty-day public comment period prior to final adoption of a rule;

    (B) Designation of a single location where all proposed and approved rules, guidelines and other policy statements are posted and can be accessed by the public;

    (C) A procedure to maximize Internet access to all proposed and approved rules, guidelines and other policy statements to the extent technically and financially feasible; and

    (D) A procedure for the governing board to follow in submitting its rules for review and approval to the commission and/or council, as appropriate, except the following conditions apply for the governing boards of Marshall University and West Virginia University:

    (i) The governing boards shall submit rules for review and comment to the commission.

    (ii) The commission shall return to the governing board its comments and suggestions within thirty days of receiving the rule.

    (iii) If a governing board receives comments or suggestions on a rule from the commission, it shall record these as part of the minute record. The rule is not effective and may not be implemented until the governing board holds a meeting and places on the meeting agenda the comments it has received from the commission.

    (d) Nothing in this section requires that any rule reclassified or transferred by the commission or the council under this section be promulgated again under the procedures set out in article three-a, chapter twenty-nine-a of this code unless the rule is amended or modified.

    (e) The commission and council each shall file with the Legislative Oversight Commission on Education Accountability any rule it proposes to promulgate, adopt, amend or repeal under the authority of this article.

    (f) The governing boards shall promulgate and adopt any rule which they are required to adopt by this chapter or chapter eighteen-c of this code no later than July 1, 2011, unless a later date is specified. On and after this date:

    (1) Any rule of a governing board which meets the definition set out in subsection (c) of this section and which has not been promulgated and adopted by formal vote of the appropriate governing board is void and may not be enforced;

    (2) Any authority granted by this code which inherently requires the governing board to promulgate and adopt a rule is void until the governing board complies with this section.

    (g) Within thirty days of the adoption of a rule, including repeal or amendment of an existing rule, and before the change is implemented, a governing board shall furnish a copy of each rule which it has adopted to the commission or the council, respectively, for review and approval, except the governing boards of Marshall University and West Virginia University are subject to subsection (c) of this section.

    (h) Annually, by October 1, each governing board shall file with the commission or the council, as appropriate, a list of all rules that were in effect for that institution on July 1 of that year, including the most recent date on which each rule was considered and adopted, amended or repealed by the governing board. For all rules adopted, amended or repealed after the effective date of this section, the list shall include a statement by the chair of the governing board, except for the governing boards of Marshall University and West Virginia University, certifying that the governing board has complied with this section when each listed rule was promulgated and adopted.

ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.

§§18B-1B-4. Powers and duties of Higher Education Policy Commission.

    (a) The primary responsibility of the commission is to develop, establish and implement policy that will achieve the goals, objectives and priorities found in section one-a, article one and article one-d of this chapter. The commission shall exercise its authority and carry out its responsibilities in a manner that is consistent and not in conflict with the powers and duties assigned by law to the West Virginia Council for Community and Technical College Education and the powers and duties assigned to the governing boards. To that end, the commission has the following powers and duties relating to the governing boards under its jurisdiction:

    (1) Develop, oversee and advance the public policy agenda pursuant to article one-d of this chapter to address major challenges facing the state, including, but not limited to, the following:

    (A) The goals, objectives and priorities established in this chapter including specifically those goals, objectives and priorities pertaining to the compacts created pursuant to section seven, article one-d of this chapter; and

    (B) Development and implementation of the master plan described in section five, article one-d of this chapter for the purpose of accomplishing the mandates of this section;

    (2) Develop, oversee and advance the promulgation and implementation of a financing rule for state institutions of higher education under its jurisdiction. The rule shall meet the following criteria:

    (A) Provide for an adequate level of educational and general funding for institutions pursuant to section five, article one-a of this chapter;

    (B) Serve to maintain institutional assets, including, but not limited to, human and physical resources and eliminating deferred maintenance; and

    (C) Invest and provide incentives for achieving the priority goals in the public policy agenda, including, but not limited to, those found in section one-a, article one and article one-d of this chapter;

    (3) In collaboration with the council, create a policy leadership structure capable of the following actions:

    (A) Developing, building public consensus around and sustaining attention to a long-range public policy agenda. In developing the agenda, the commission and council shall seek input from the Legislature and the Governor and specifically from the state Board of Education and local school districts in order to create the necessary linkages to assure smooth, effective and seamless movement of students through the public education and post-secondary education systems and to ensure that the needs of public school courses and programs can be fulfilled by the graduates produced and the programs offered;

    (B) Ensuring that the governing boards carry out their duty effectively to govern the individual institutions of higher education; and

    (C) Holding the governing boards and the higher education systems as a whole accountable for accomplishing their missions and implementing their compacts;

    (4) Develop and adopt each compact for the governing boards under its jurisdiction;

    (5) Review and adopt the annual updates of the institutional compacts;

    (6) Serve as the accountability point to state policymakers:

    (A) The Governor for implementation of the public policy agenda; and

    (B) The Legislature by maintaining a close working relationship with the legislative leadership and the Legislative Oversight Commission on Education Accountability;

    (7) Jointly with the council, promulgate legislative rules pursuant to article three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;

    (8) Establish and implement a peer group for each institution as described in section three, article one-a of this chapter;

    (9) Establish and implement the benchmarks and performance indicators necessary to measure institutional progress in achieving state policy priorities and institutional missions pursuant to section seven, article one-d of this chapter;

    (10) Report to the Legislature and to the Legislative Oversight Commission on Education Accountability annually during the January interim meeting period on a date and at a time and location to be determined by the President of the Senate and the Speaker of the House of Delegates. The report shall address at least the following:

    (A) The performance of its system of higher education during the previous fiscal year, including, but not limited to, progress in meeting the goals, objectives and priorities set forth in section one-a, article one and article one-d of this chapter and in the commission’s master plan and institutional compacts;

    (B) The commission’s priorities for new operating and capital investments and the justification for the priority;

    (C) Recommendations of the commission for statutory changes necessary or expedient to achieve state goals, objectives and priorities;

    (11) Establish a formal process for identifying capital investment needs and for determining priorities for these investments for consideration by the Governor and the Legislature as part of the appropriation request process pursuant to article nineteen of this chapter.  

    (12) Develop standards and evaluate governing board requests for capital project financing in accordance with article nineteen of this chapter, except that Marshall University and West Virginia University are not subject to this subdivision;

    (13) Ensure that governing boards manage capital projects and facilities needs effectively, including review and approval or disapproval of capital projects, in accordance with article nineteen of this chapter, except that the governing boards of Marshall University and West Virginia University are not subject to this subdivision;

    (14) Acquire legal services as considered necessary, including representation of the commission, its governing boards, employees and officers before any court or administrative body, notwithstanding any other provision of this code to the contrary. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the commission may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law;

    (15) Employ a Chancellor for Higher Education pursuant to section five of this article;

    (16) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the commission and the council, in accordance with article four of this chapter;

    (17) Provide suitable offices in Kanawha County for the chancellor, vice chancellors and other staff;

    (18) Advise and consent in the appointment of the presidents of the institutions of higher education under its jurisdiction pursuant to section six of this article. The role of the commission in approving an institutional president is to assure through personal interview that the person selected understands and is committed to achieving the goals, objectives and priorities set forth in the compact, in section one-a, article one and article one-d of this chapter;

    (19) Approve the total compensation package from all sources for presidents of institutions under its jurisdiction, as proposed by the governing boards, except the compensation packages proposed for the presidents of the state institutions of higher education known as Marshall University and West Virginia University, respectively, are not subject to the provisions of this subdivision. The governing boards must obtain approval from the commission of the total compensation package both when institutional presidents are employed initially and afterward when any change is made in the amount of the total compensation package;

    (20) Establish and implement the policy of the state to assure that parents and students have sufficient information at the earliest possible age on which to base academic decisions about what is required for students to be successful in college, other post-secondary education and careers related, as far as possible, to results from current assessment tools in use in West Virginia;

    (21) Approve and implement a uniform standard jointly with the council to determine which students shall be placed in remedial or developmental courses. The standard shall be aligned with college admission tests and assessment tools used in West Virginia and shall be applied uniformly by the governing boards throughout the public higher education system. The chancellors shall develop a clear, concise explanation of the standard which they shall communicate to the state Board of Education and the state Superintendent of Schools;

    (22) Jointly with the council, develop and implement an oversight plan to manage systemwide technology including, but not limited to, the following:

    (A) Expanding distance learning and technology networks to enhance teaching and learning, promote access to quality educational offerings with minimum duplication of effort; and

    (B) Increasing the delivery of instruction to nontraditional students, to provide services to business and industry and increase the management capabilities of the higher education system.

    (C) Notwithstanding any other provision of law or this code to the contrary, the council, commission and governing boards are not subject to the jurisdiction of the Chief Technology Officer for any purpose;

    (23) Establish and implement policies and procedures to ensure that a student may transfer and apply toward the requirements for a bachelor’s degree the maximum number of credits earned at any regionally accredited in-state or out-of-state community and technical college with as few requirements to repeat courses or to incur additional costs as are consistent with sound academic policy;

    (24) Establish and implement policies and procedures to ensure that a student may transfer and apply toward the requirements for a degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as are consistent with sound academic policy;

    (25) Establish and implement policies and procedures to ensure that a student may transfer and apply toward the requirements for a master’s degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as are consistent with sound academic policy;

    (26) Establish and implement policies and programs, in cooperation with the council and the governing boards, through which a student who has gained knowledge and skills through employment, participation in education and training at vocational schools or other education institutions, or Internet-based education programs, may demonstrate by competency-based assessment that he or she has the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate’s degree or a bachelor’s degree at a state institution of higher education;

    (27) Seek out and attend regional, national and international meetings and forums on education and workforce development-related topics as, in the commission’s discretion, are critical for the performance of their duties as members, for the purpose of keeping abreast of education trends and policies to aid it in developing the policies for this state to meet the established education goals, objectives and priorities pursuant to section one-a, article one and article one-d of this chapter;

    (28) Promulgate and implement a rule for higher education governing boards and institutions to follow when considering capital projects pursuant to article nineteen of this chapter;

    (29) Consider and submit to the appropriate agencies of the executive and legislative branches of state government an appropriation request that reflects recommended appropriations for the commission and the governing boards under its jurisdiction. The commission shall submit as part of its appropriation request the separate recommended appropriation request it received from the council, both for the council and for the governing boards under the council’s jurisdiction. The commission annually shall submit the proposed allocations based on each institution’s progress toward meeting the goals of its compact;

    (30) The commission may assess institutions under its jurisdiction, including Marshall University and West Virginia University, for the payment of expenses of the commission or for the funding of statewide higher education services, obligations or initiatives related to the goals set forth for the provision of public higher education in the state;

    (31) Promulgate rules allocating reimbursement of appropriations, if made available by the Legislature, to governing boards for qualifying noncapital expenditures incurred in providing services to students with physical, learning or severe sensory disabilities;

    (32) Make appointments to boards and commissions where this code requires appointments from the State College System Board of Directors or the University of West Virginia System Board of Trustees which were abolished effective June 30, 2000, except in those cases where the required appointment has a specific and direct connection to the provision of community and technical college education, the appointment shall be made by the council. Notwithstanding any provisions of this code to the contrary, the commission or the council may appoint one of its own members or any other citizen of the state as its designee. The commission and council shall appoint the total number of persons in the aggregate required to be appointed by these previous governing boards;

    (33) Pursuant to article three-a, chapter twenty-nine-a of this code and section six, article one of this chapter, promulgate rules necessary or expedient to fulfill the purposes of this chapter. The commission and the council shall promulgate a uniform joint legislative rule for the purposes of standardizing, as much as possible, the administration of personnel matters among the state institutions of higher education and implementing the provisions of articles seven, eight, nine and nine-a of this chapter;

    (34) Determine when a joint rule among the governing boards under its jurisdiction is necessary or required by law and, in those instances, in consultation with the governing boards under its jurisdiction, promulgate the joint rule;

    (35) In consultation with the governing boards of Marshall University and West Virginia University, promulgate and implement a rule jointly with the council whereby course credit earned at a community and technical college transfers for program credit at any other state institution of higher education and is not limited to fulfilling a general education requirement;

    (36) By October 1, 2011 2014, promulgate a rule pursuant to section one, article ten of this chapter, establishing tuition and fee policy for all governing boards under the jurisdiction of the commission, including except for Marshall University and West Virginia University, which are subject to and governed by the provisions of section one, article ten of this chapter. The rule shall include, but is not limited to, the following:

    (A) Comparisons with peer institutions;

    (B) Differences among institutional missions;

    (C) Strategies for promoting student access;

    (D) Consideration of charges to out-of-state students; and

    (E) Such other policies as the commission and council consider appropriate;

    (37) Implement general disease awareness initiatives to educate parents and students, particularly dormitory residents, about meningococcal meningitis; the potentially life-threatening dangers of contracting the infection; behaviors and activities that can increase risks; measures that can be taken to prevent contact or infection; and potential benefits of vaccination. The commission shall encourage governing boards that provide medical care to students to provide access to the vaccine for those who wish to receive it; and

    (38) Notwithstanding any other provision of this code to the contrary sell, lease, convey or otherwise dispose of all or part of any real property that it owns, in accordance with article nineteen of this chapter.

    (b) In addition to the powers and duties listed in subsection (a) of this section, the commission has the following general powers and duties related to its role in developing, articulating and overseeing the implementation of the public policy agenda:

    (1) Planning and policy leadership, including a distinct and visible role in setting the state’s policy agenda and in serving as an agent of change;

    (2) Policy analysis and research focused on issues affecting the system as a whole or a geographical region thereof;

    (3) Development and implementation of institutional mission definitions, including use of incentive funds to influence institutional behavior in ways that are consistent with public priorities;

    (4) Academic program review and approval for governing boards under its jurisdiction, except for the governing boards of Marshall University and West Virginia University. The review and approval includes use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes.

    (A) The commission’s commission may authority to review and approve academic programs for either Marshall University or West Virginia University is limited to programs that are proposed to be offered at a new location not presently served by that institution, but authority to approve those academic programs rests with the respective governing boards;

    (B) The commission shall approve or disapprove proposed academic degree programs in those instances where approval is required as soon as practicable, but in any case not later than six months from the date the governing board makes an official request. The commission may not withhold approval unreasonably.

    (5) Distribution of funds appropriated to the commission, including incentive and performance-based funds;

    (6) Administration of state and federal student aid programs under the supervision of the vice chancellor for administration, including promulgation of rules necessary to administer those programs;

    (7) Serving as the agent to receive and disburse public funds when a governmental entity requires designation of a statewide higher education agency for this purpose;

    (8) Developing, establishing and implementing information, assessment, accountability and personnel systems, including maintaining statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;

    (9) Jointly with the council, promulgating and implementing rules for licensing and oversight for both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs in the state. The council has authority and responsibility for approval of all post-secondary courses or programs providing community and technical college education as defined in section two, article one of this chapter.

    (10) Developing, implementing and overseeing statewide and regional projects and initiatives related to providing post-secondary education at the baccalaureate level and above such as those using funds from federal categorical programs or those using incentive and performance-based funds from any source;

    (11) Quality assurance that intersects with all other duties of the commission particularly in the areas of research, data collection and analysis, personnel administration, planning, policy analysis, program review and approval, budgeting and information and accountability systems; and

    (12) Developing budgets and allocating resources for governing boards under its jurisdiction:

    (A) For all governing boards under its jurisdiction, except the governing boards of Marshall University and West Virginia University, the commission shall review institutional operating budgets, review and approve capital budgets, and distribute incentive and performance-based funds;

    (B) For the governing boards of Marshall University and West Virginia University, the commission shall distribute incentive and performance-based funds and may review and comment upon the institutional operating budgets and capital budgets. The commission’s comments, if any, shall be made part of the governing board’s minute record.

    (c) In addition to the powers and duties provided in subsections (a) and (b) of this section and any other powers and duties assigned to it by law, the commission has other powers and duties necessary or expedient to accomplish the purposes of this article.

    (d) The commission may withdraw specific powers of a governing board under its jurisdiction for a period not to exceed two years, if the commission determines that any of the following conditions exist:

    (1) The governing board has failed for two consecutive years to develop or implement an institutional compact as required in article one-d of this chapter;

    (2) The commission has received information, substantiated by independent audit, of significant mismanagement or failure to carry out the powers and duties of the governing board according to state law; or

    (3) Other circumstances which, in the view of the commission, severely limit the capacity of the governing board to exercise its powers or carry out its duties and responsibilities.

    The commission may not withdraw specific powers for a period exceeding two years. During the withdrawal period, the commission shall take all steps necessary to reestablish sound, stable and responsible institutional governance.

ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNANCE.

§§18B-2A-3. Supervision of governing boards; promulgation of rules.

    (a) The governing boards are subject to the supervision of the commission or the council, as appropriate, except in those instances where specific statutory exceptions are granted by law to for the governing boards of Marshall University and West Virginia University.

    (b) The governing boards of all state institutions of higher education, except for the governing boards of Marshall University and West Virginia University, are subject to the provisions of law that relate to the administration of personnel matters including, specifically, articles seven, eight, nine and nine-a of this chapter and to rules promulgated and adopted in accordance with these provisions.

    (c) The Chancellor for Higher Education and the Chancellor for Community and Technical College Education, under the supervision of their respective boards, are responsible for the coordination of policies, purposes and rules of the governing boards and shall provide for and facilitate sufficient interaction among the governing boards and between the governing boards and the state Board of Education to meet the goals and objectives provided in the compacts and in section one-a, article one and article one-d of this chapter.

    (d) The governing boards and the state Board of Education shall provide all information requested by the commission and the council, whether the request is made separately or jointly, in an appropriate format and in a timely manner.

§18B-2A-4. Powers and duties of governing boards generally.

    Each governing board separately has the following powers and duties:

    (a) Determine, control, supervise and manage the financial, business and education policies and affairs of the state institution of higher education under its jurisdiction;

    (b) Develop a master plan for the institution under its jurisdiction.

    (1) The ultimate responsibility for developing and updating each master plan at the institution resides with the governing board, but the ultimate responsibility for approving the final version of each master plan, including periodic updates, resides with the commission or council, as appropriate.

    (2) Each master plan shall include, but is not limited to, the following:

    (A) A detailed demonstration of how the master plan will be used to meet the goals, objectives and priorities of the compact;

    (B) A well-developed set of goals, objectives and priorities outlining missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinates and projections necessary in a plan to assure that the needs of the institution’s area of responsibility for a quality system of higher education are addressed;

    (C) Documentation showing how the governing board involved the commission or council, as appropriate, constituency groups, clientele of the institution and the general public in the development of all segments of the master plan.

    (3) The plan shall be established for periods of not fewer than three nor more than five years and shall be revised periodically as necessary, including adding or deleting bachelor’s, master’s and doctoral degree programs for all governing boards as approved by the commission or council, respectively, except for the governing boards of Marshall University and West Virginia University only, the commission may review, but may not approve or disapprove, additions or deletions of degree programs.

    (c) Develop a ten-year campus development plan in accordance with article nineteen of this chapter;

    (d) Prescribe for the institution, under its jurisdiction, in accordance with its master plan and compact, specific functions and responsibilities to achieve the goals, objectives and priorities established in articles one and one-d of this chapter to meet the higher education needs of its area of responsibility and to avoid unnecessary duplication;

    (e) Direct the preparation of an appropriation request for the institution under its jurisdiction, which relates directly to missions, goals and projections found in the master plan and the compact;

    (f) Consider, revise and submit for review and approval to the commission or council, as appropriate, an appropriation request on behalf of the institution under its jurisdiction;

    (g) Review, at least every five years, all academic programs offered at the institution under its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation to established state goals, objectives and priorities, the master plan, the compact and the education and workforce needs of its responsibility district. As a part of the review, each governing board shall require the institution under its jurisdiction to conduct periodic studies of its graduates and their employers to determine placement patterns and the effectiveness of the education experience. Where appropriate, these studies should coincide with the studies required of many academic disciplines by their accrediting bodies;

    (h) Ensure that the sequence and availability of academic programs and courses offered by the institution under its jurisdiction is such that students have the maximum opportunity to complete programs in the time frame normally associated with program completion. Each governing board is responsible to see that the needs of nontraditional college-age students are appropriately addressed and, to the extent it is possible for the individual governing board to control, to assure core course work completed at the institution is transferable to any other state institution of higher education for credit with the grade earned;

    (i) Subject to article one-b of this chapter, approve the teacher education programs offered in the institution under its control. In order to permit graduates of teacher education programs to receive a degree from a nationally accredited program and in order to prevent expensive duplication of program accreditation, the commission may select and use one nationally recognized teacher education program accreditation standard as the appropriate standard for program evaluation;

    (j) Involve faculty, students and classified employees in institution-level planning and decisionmaking when those groups are affected;

    (k) Subject to federal law and pursuant to articles seven, eight, nine and nine-a of this chapter and to rules adopted by the commission and the council, administer a system for the management of personnel matters, including, but not limited to, discipline for employees at the institution under its jurisdiction, except that the governing boards of West Virginia University and Marshall University each may administer its own system for the management of personnel matters, including, but not limited to, classification, compensation, and discipline of employees at the institution under its respective jurisdiction;

    (l) Administer a system for hearing employee grievances and appeals. Notwithstanding any other provision of this code to the contrary, the procedure established in article two, chapter six-c of this code is the exclusive mechanism for hearing prospective employee grievances and appeals;

    (m) Solicit and use or expend voluntary support, including financial contributions and support services, for the institution under its jurisdiction;

    (n) Appoint a president for the institution under its jurisdiction subject to section six, article one-b of this chapter;

    (o) Conduct written performance evaluations of the president pursuant to section six, article one-b of this chapter;

    (p) Employ all faculty and staff at the institution under its jurisdiction. The employees operate under the supervision of the president, but are employees of the governing board;

    (q) Submit to the commission or council, as appropriate, any data or reports requested by the commission or council within the time frame set by the commission or council;

    (r) Enter into contracts or consortium agreements with the public schools, private schools or private industry to provide technical, vocational, college preparatory, remedial and customized training courses at locations either on campuses of the state institutions of higher education or at off-campus locations in the institution’s responsibility district. To accomplish this goal, the boards may share resources among the various groups in the community;

    (s) Provide and transfer funds and property to certain corporations pursuant to section ten, article twelve of this chapter;

    (t) Delegate, with prescribed standards and limitations, the part of its power and control over the business affairs of the institution to the president in any case where it considers the delegation necessary and prudent in order to enable the institution to function in a proper and expeditious manner and to meet the requirements of its master plan and compact. If a governing board elects to delegate any of its power and control under this subsection, it shall enter the delegation in the minutes of the meeting when the decision was made and shall notify the commission or council, as appropriate. Any delegation of power and control may be rescinded by the appropriate governing board, the commission or council, as appropriate, at any time, in whole or in part, except that the commission may not revoke delegations of authority made by the governing board of Marshall University or West Virginia University;

    (u) Unless changed by the commission or the council, as appropriate, continue to abide by existing rules setting forth standards for accepting advanced placement credit for the institution under its jurisdiction. Individual departments at a state institution of higher education, with approval of the faculty senate, may require higher scores on the advanced placement test than scores designated by the governing board when the credit is to be used toward meeting a requirement of the core curriculum for a major in that department;

    (v) Consult, cooperate and coordinate with the State Treasurer and the State Auditor to update as necessary and maintain an efficient and cost-effective system for the financial management and expenditure of appropriated and nonappropriated revenue at the institution under its jurisdiction. The system shall ensure that properly submitted requests for payment are paid on or before the due date but, in any event, within fifteen days of receipt in the State Auditor's office;

    (w) In consultation with the appropriate chancellor and the Secretary of the Department of Administration, develop, update as necessary and maintain a plan to administer a consistent method of conducting personnel transactions, including, but not limited to, hiring, dismissal, promotions, changes in salary or compensation and transfers at the institution under its jurisdiction. Each personnel transaction shall be accompanied by the appropriate standardized system or forms, as appropriate, which shall be submitted to the respective governing board and the Department of Administration:

    (1) Not later than July 1, 2012, the Department of Administration shall make available to each governing board the option of using a standardized electronic system for these personnel transactions.

    (2) The Secretary of the Department of Administration may suspend a governing board’s participation in the standardized electronic system if he or she certifies to the Governor that the governing board has failed repeatedly and substantially to comply with the department’s policies for administering the electronic system;

    (x) Notwithstanding any other provision of this code to the contrary, transfer funds from any account specifically appropriated for its use to any corresponding line item in a general revenue account at any agency or institution under its jurisdiction as long as the transferred funds are used for the purposes appropriated;

    (y) Transfer funds from appropriated special revenue accounts for capital improvements under its jurisdiction to special revenue accounts at agencies or institutions under its jurisdiction as long as the transferred funds are used for the purposes appropriated in accordance with article nineteen of this chapter;

    (z) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the governing board, its institution, employees and officers before any court or administrative body. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the governing board may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law; and

    (aa) Contract and pay for disability insurance for a class or classes of employees at a state institution of higher education under its jurisdiction.

ARTICLE 9A. CLASSIFICATION AND COMPENSATION SYSTEM.

§18B-9A-2. Definitions.

    As used in this article and articles seven, eight and nine of this chapter, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:

    (a) “Classification system” means the process by which jobs, job titles, career ladders and assignment to pay grades are determined.

    (b) “Classified employee” or “employee” means any regular employee of an organization who holds a position that is assigned a particular job and job title within the classification system established by this article, article nine and by duly promulgated and adopted rules of the commission and council.

    (c) “Job” means the total collection of tasks, duties and responsibilities assigned to one or more individuals whose work is of the same nature and level.

    (d) “Job description” means a summary of the most important features of a job, including the general nature and level of the work performed.

    (e) “Job evaluation” means a formal process used to create a job worth hierarchy.

    (f) “Job family” means a group of jobs having the same nature of work, but requiring different levels of skill, effort, responsibility or working conditions.

    (g) “Job title” means the descriptive name for the total collection of tasks, duties and responsibilities assigned to one or more individuals whose positions have the same nature of work performed at the same level.

    (h) “Job worth hierarchy” means the perceived internal value of jobs in relation to each other within an organization.

    (i) “Nonclassified employee” means an employee of an organization who holds a position that is not assigned a particular job and job title within the classification system established by this article, article nine, and by duly promulgated and adopted rules of the commission and council and who meets one or more of the following criteria:

    (1) Holds a direct policy-making position at the department or organization level; or

    (2) Reports directly to the president or chief executive officer of the organization; or

    (3) Is an employee of Marshall University or of West Virginia University who:

    (A) Is determined by the president of the respective institution to be a critical employee; and

    (B) Whose status as a critical employee as determined by the respective president is consistent with the rules of procedures established by the respective institution’s governing board for making such a determination.

    (j) “Organization” means the commission, the council, an agency or entity under the respective jurisdiction of the commission or the council or a state institution of higher education as defined in section two, article one of this chapter.

    (k) “Pay grade” means the level to which a job is assigned within a job worth hierarchy.

    (l) “Point factor methodology” means a quantitative job evaluation process in which elements of a job are given a factor value and each factor is weighted according to its importance.

    (m) “Position description” means a summary of the total duties and responsibilities of a position based on factors provided in the position information questionnaire (PIQ).

    (n) “Position information questionnaire” or “PIQ” means a tool used in the creation and evaluation of position descriptions and includes the factors of knowledge, experience, complexity and problem solving, freedom of action, scope and effect, breadth of responsibility, intra-systems contacts, external contacts, direct supervision of personnel, indirect supervision of personnel and health, safety and physical considerations.

    (o) “Step” means a standard progression in pay rate that is established within a pay grade.

ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.

    (a) Each governing board shall fix tuition and other fees for each academic term for the different classes or categories of students enrolling at the state institution of higher education under its jurisdiction and may include among the tuition and fees any one or more of the following as defined in section one-b of this article:

    (1) Tuition and required educational and general fees;

    (2) Auxiliary and auxiliary capital fees; and

    (3) Required educational and general capital fees.

    (b) A governing board may establish a single special revenue account for each of the following classifications of fees:

    (1) All tuition and required educational and general fees collected;

    (2) All auxiliary and auxiliary capital fees collected; and

    (3) All required educational and general capital fees collected to support existing systemwide and institutional debt service and future systemwide and institutional debt service, capital projects and campus renewal for educational and general facilities.

    (4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable from the accounts, a governing board may expend funds from each special revenue account for any purpose for which funds were collected within that account regardless of the original purpose for which the funds were collected.

    (c) The purposes for which tuition and fees may be expended include, but are not limited to, health services, student activities, recreational, athletic and extracurricular activities. Additionally, tuition and fees may be used to finance a students’ attorney to perform legal services for students in civil matters at the institutions. The legal services are limited to those types of cases, programs or services approved by the president of the institution where the legal services are to be performed.

    (d) By October 1, 2011, the commission and council each shall propose a rule for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees by the governing boards under their respective jurisdictions.

    (e) The schedule of all tuition and fees, and any changes in the schedule, shall be entered in the minutes of the meeting of the appropriate governing board and the board shall file with the commission or council, or both, as appropriate, and the Legislative Auditor a certified copy of the schedule and changes.

    (f) The governing boards shall establish the rates to be charged full-time students, as defined in section one-b of this article, who are enrolled during a regular academic term.

    (1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.

    (2) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with this subsection.

    (g) All fees are due and payable by the student upon enrollment and registration for classes except as provided in this subsection:

    (1) The governing boards shall permit fee payments to be made in installments over the course of the academic term. All fees shall be paid prior to awarding course credit at the end of the academic term.

    (2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.

    (3) If a governing board determines that a student's finances are affected adversely by a legal work stoppage, it may allow the student an additional six months to pay the fees for any academic term. The governing board shall determine on a case-by-case basis whether the finances of a student are affected adversely.

    (4) The commission and council jointly shall propose a rule in accordance with article three-a, chapter twenty-nine-a of this code defining conditions under which a governing board may offer tuition and fee deferred payment plans itself or through third parties.

    (5) A governing board may charge interest or fees for any deferred or installment payment plans.

    (h) In addition to the other fees provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group if the students at the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. The fee may not be used to finance litigation against the institution.

    (i) Governing boards shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with the tuition rules proposed by the commission and council pursuant to this section. The tuition rules shall address the following areas:

    (1) Providing a basis for establishing nonresident tuition and fees;

    (2) Allowing governing boards to charge different tuition and fees for different programs;

    (3) Authorizing a governing board to propose to the commission, council or both, as appropriate, a mandatory auxiliary fee under the following conditions:

    (A) The fee shall be approved by the commission, council or both, as appropriate, and either the students below the senior level at the institution or the Legislature before becoming effective;

    (B) Increases may not exceed previous state subsidies by more than ten percent;

    (C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;

    (D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee is implemented;

    (E) The commission or council or both, as appropriate, shall certify to the Legislature annually by October 1 the amount of fees collected for each of the five years;

    (4) Establishing methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for students in all community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.

    (j) A penalty may not be imposed by the commission or council upon any governing board based upon the number of nonresidents who attend the institution unless the commission or council determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of resident students to attend the institution or participate in the programs of the institution. The governing boards shall report annually to the commission or council on the numbers of nonresidents and any other enrollment information the commission or council may request.

    (k) The governing boards of Marshall University and West Virginia University each may annually:

    (1) Increase tuition and fees for undergraduate resident students to the maximum allowed by this section without seeking approval from the commission; and

    (2) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident students, including establishing regional tuition and fee rates, reciprocity agreements or both.

    (k) (l) Tuition and fee increases of the governing boards, including except for the governing boards of Marshall University and West Virginia University, are subject to rules adopted by the commission and council pursuant to this section and in accordance with article three-a, chapter twenty-nine-a of this code. The commission or council, as appropriate, shall examine individually each request from a governing board for an increase and make its determinations as follows:

    (1) A tuition and fee increase greater than five percent for resident students proposed by a governing board requires the approval of the commission or council, as appropriate.

    (2) A fee used solely for the purpose of complying with the athletic provisions of 20 U.S.C. 1681, et seq., known as Title IX of the Education Amendment of 1972, is exempt from the limitations on fee increases set forth in this subsection for three years from the effective date of the section.

    (3) In determining whether to approve or deny a governing board's request for a tuition and/or fee increase for resident students greater than the increases granted pursuant to subdivision (1) of this subsection, the commission or council shall determine the progress the governing board has made toward meeting the conditions outlined in this subsection and shall make this determination the predominate factor in its decision. The commission or council shall consider the degree to which each governing board has met the following conditions:

    (A) Maximizes resources available through nonresident tuition and fee charges to the satisfaction of the commission or council;

    (B) Consistently achieves the benchmarks established in the compact pursuant to article one-d of this chapter;

    (C) Continuously pursues the statewide goals for post-secondary education and the statewide compact established in this chapter;

    (D) Demonstrates to the satisfaction of the commission or council that an increase will be used to maintain high-quality programs at the institution;

    (E) Demonstrates to the satisfaction of the commission or council that the governing board is making adequate progress toward achieving the goals for education established by the southern regional education board;

    (F) Demonstrates to the satisfaction of the commission or council that the governing board has considered the average per capita income of West Virginia families and their ability to pay for any increases; and

    (G) Demonstrates to the satisfaction of the commission or council that base appropriation increases have not kept pace with recognized nation-wide inflationary benchmarks;

    (4) This section does not require equal increases among governing boards nor does it require any level of increase by a governing board.

    (5) The commission and council shall report to the Legislative Oversight Commission on Education Accountability regarding the basis for approving or denying each request as determined using the criteria established in this subsection.

ARTICLE 19. CAPITAL PROJECTS AND FACILITIES NEEDS.

§18B-19-19. Applicability to certain institutions.

    (a) The governing boards of Marshall University and West Virginia University each may take any action in this article that does not require approval of the commission.

    (b) The governing boards of Marshall University and West Virginia University each may, without obtaining approval of the commission, take any action described or set forth in this article that otherwise would require the approval of the commission. The respective governing board shall provide notice of the action to the commission. If the commission requests additional information relevant to the action from the respective governing board, the governing board shall provide information regarding the action to the commission.



 

    NOTE: The purpose of this bill is to provide additional authority and flexibility to the Boards of Governors of Marshall University and West Virginia University with regard to real property contracts and agreements, rulemaking, capital project financing, capital projects, facility needs, the setting of compensation of the president, course credit transfers, tuition and fees, academic program review and approval, personnel matters, and the definition of nonclassified employees.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §18B-19-19 is new, therefore strike-throughs and underscoring have been omitted.

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