Introduced Version
House Bill 2233 History
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H. B. 2233
(By Delegates Gearheart, Ellington and Householder)
[Introduced February 13, 2013; referred to the
Committee on Education then Finance.]
A BILL to amend and reenact §18-9D-15 and §18-9D-16 of the Code of
West Virginia, 1931, as amended, all relating to the School
Building Authority; eliminating local participation in funding
school construction projects and the associated limited
funding reserve; eliminating certain regional planning
activities when evaluating proposed construction projects;
eliminating the requirement of a county board's efforts in
school bond issues being a consideration when evaluating
proposed projects; eliminating the requirement that counties
receive explanations detailing the authority's decision
concerning the funding of projects; requiring funds awarded by
the School Building Authority must be consistent with the
evaluation report of the School Building Authority; and
declaring certain documents related to funding consideration
to be public documents and available to the public upon request.
Be it enacted by the Legislature of West Virginia:
That §18-9D-15 and §18-9D-16 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-15. Legislative intent; allocation of money among
categories of projects; lease-purchase options;
limitation on time period for expenditure of
project allocation; county maintenance budget
requirements; project disbursements over period of
years; preference for multicounty arrangements;
submission of project designs; set-aside to
encourage local participation.
(a) It is the intent of the Legislature to empower the School
Building Authority to facilitate and provide state funds and to
administer all federal funds provided for the construction and
major improvement of school facilities so as to meet the
educational needs of the people of this state in an efficient and
economical manner. The authority shall make funding determinations
in accordance with the provisions of this article and shall assess
existing school facilities and each facility's school major
improvement plan in relation to the needs of the individual
student, the general school population, the communities served by the facilities and facility needs statewide.
(b) An amount that is not more than three percent of the sum
of moneys that are determined by the authority to be available for
distribution during the then current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund or the Excess Lottery School
Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
paid into the School Major Improvement Fund pursuant to section six
of this article and moneys deposited into the School Access Safety
Fund pursuant to section five, article nine-f of this chapter, may
be allocated and may be expended by the authority for projects
authorized in accordance with the provisions of section sixteen of
this article that service the educational community statewide or,
upon application by the state board, for educational programs that
are under the jurisdiction of the state board. In addition, upon
application by the state board or the administrative council of an
area vocational educational center established pursuant to article
two-b of this chapter, the authority may allocate and expend under
this subsection moneys for school major improvement projects authorized in accordance with the provisions of section sixteen of
this article proposed by the state board or an administrative
council for school facilities under the direct supervision of the
state board or an administrative council, respectively.
Furthermore, upon application by a county board, the authority may
allocate and expend under this subsection moneys for school major
improvement projects for vocational programs at comprehensive high
schools, vocational programs at comprehensive middle schools,
vocational schools cooperating with community and technical college
programs, or any combination of the three. Each county board is
encouraged to cooperate with community and technical colleges in
the use of existing or development of new vocational technical
facilities. All projects eligible for funds from this subsection
shall be submitted directly to the authority which shall be solely
responsible for the project's evaluation, subject to the following:
(A) The authority may not expend any moneys for a school major
improvement project proposed by the state board or the
administrative council of an area vocational educational center
unless the state board or an administrative council has submitted
a ten-year facilities plan; and
(B) The authority shall, before allocating any moneys to the
state board or the administrative council of an area vocational
educational center for a school improvement project, consider all
other funding sources available for the project.
(c) An amount that is not more than two percent of the moneys
that are determined by the authority to be available for
distribution during the current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund or the Excess Lottery School
Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, shall be set aside by the
authority as an emergency fund to be distributed in accordance with
the guidelines adopted by the authority.
(d) An amount that is not more than five percent of the moneys
that are determined by the authority to be available for
distribution during the current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund or the Excess Lottery School
Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, may be reserved by the
authority for multiuse vocational-technical education facilities
projects that may include post-secondary programs as a first
priority use. The authority may allocate and expend under this
subsection moneys for any purposes authorized in this article on
multiuse vocational-technical education facilities projects,
including equipment and equipment updates at the facilities,
authorized in accordance with the provisions of section sixteen of
this article. If the projects approved under this subsection do
not require the full amount of moneys reserved, moneys above the
amount required may be allocated and expended in accordance with
other provisions of this article. A county board, the state board,
an administrative council or the joint administrative board of a
vocational-technical education facility which includes post-
secondary programs may propose projects for facilities or
equipment, or both, which are under the direct supervision of the
respective body: Provided, That the authority shall, before
allocating any moneys for a project under this subsection, consider
all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be
available for distribution during the then current fiscal year
from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund or the Excess Lottery School
Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, shall be allocated and
expended on the basis of need and efficient use of resources for
projects funded in accordance with the provisions of section
sixteen of this article.
(f) If a county board proposes to finance a project that is
authorized in accordance with section sixteen of this article
through a lease with an option to purchase leased premises upon the
expiration of the total lease period pursuant to an investment
contract, the authority may not allocate moneys to the county board
in connection with the project: Provided, That the authority may
transfer moneys to the state board which, with the authority, shall lend the amount transferred to the county board to be used only for
a one-time payment due at the beginning of the lease term, made for
the purpose of reducing annual lease payments under the investment
contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the
authority, in consultation with the state board, and shall be
repaid in a period and bear interest at a rate as determined by the
state board and the authority and shall have any terms and
conditions that are required by the authority, all of which shall
be set forth in a loan agreement among the authority, the state
board and the county board;
(2) The loan agreement shall provide for the state board and
the authority to defer the payment of principal and interest upon
any loan made to the county board during the term of the investment
contract, and annual renewals of the investment contract, among the
state board, the authority, the county board and a lessor, subject
to the following:
(A) In the event a county board which has received a loan from
the authority for a one-time payment at the beginning of the lease
term does not renew the lease annually until performance of the
investment contract in its entirety is completed, the county board
is in default and the principal of the loan, together with all
unpaid interest accrued to the date of the default, shall, at the
option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation
among the state board, the authority and the county board;
(B) If a county board renews the lease annually through the
performance of the investment contract in its entirety, the county
board shall exercise its option to purchase the leased premises;
(C) The failure of the county board to make a scheduled
payment pursuant to the investment contract constitutes an event of
default under the loan agreement;
(D) Upon a default by a county board, the principal of the
loan, together with all unpaid interest accrued to the date of the
default, shall, at the option of the authority, in consultation
with the state board, become due and payable immediately or subject
to renegotiation among the state board, the authority and the
county board; and
(E) If the loan becomes due and payable immediately, the
authority, in consultation with the state board, shall use all
means available under the loan agreement and law to collect the
outstanding principal balance of the loan, together with all unpaid
interest accrued to the date of payment of the outstanding
principal balance; and
(3) The loan agreement shall provide for the state board and
the authority to forgive all principal and interest of the loan
upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment contract in its entirety.
(g) To encourage county boards to proceed promptly with
facilities planning and to prepare for the expenditure of any state
moneys derived from the sources described in this section, any
county board or other entity to whom moneys are allocated by the
authority that fails to expend the money within three years of the
allocation shall forfeit the allocation and thereafter is
ineligible for further allocations pursuant to this section until
it is ready to expend funds in accordance with an approved
facilities plan: Provided, That the authority may authorize an
extension beyond the three-year forfeiture period not to exceed an
additional two years. Any amount forfeited shall be added to the
total funds available in the School Construction Fund of the
authority for future allocation and distribution. Funds may not be
distributed for any project under this article unless the
responsible entity has a facilities plan approved by the state
board and the School Building Authority and is prepared to commence
expenditure of the funds during the fiscal year in which the moneys
are distributed.
(h) The remaining moneys that are determined by the authority
to be available for distribution during the then current fiscal
year from moneys paid into the School Major Improvement Fund
pursuant to section six of this article shall be allocated and
distributed on the basis of need and efficient use of resources for projects authorized in accordance with the provisions of section
sixteen of this article, subject to the following:
(1) The moneys may not be distributed for any project under
this section unless the responsible entity has a facilities plan
approved by the state board and the authority and is to commence
expenditures of the funds during the fiscal year in which the
moneys are distributed;
(2) Any moneys allocated to a project and not distributed for
that project shall be deposited in an account to the credit of the
project, the principal amount to remain to the credit of and
available to the project for a period of two years; and
(3) Any moneys which are unexpended after a two-year period
shall be redistributed on the basis of need from the School Major
Improvement Fund in that fiscal year.
(i) Local matching funds may not be required under the
provisions of this section. However, this article does not negate
the responsibilities of the county boards to maintain school
facilities. To be eligible to receive an allocation of school
major improvement funds from the authority, a county board must
have expended in the previous fiscal year an amount of county
moneys equal to or exceeding the lowest average amount of money
included in the county board's maintenance budget over any three of
the previous five years and must have budgeted an amount equal to
or greater than the average in the current fiscal year: Provided, That the state board shall promulgate rules relating to county
boards' maintenance budgets, including items which shall be
included in the budgets.
(j) Any county board may use moneys provided by the authority
under this article in conjunction with local funds derived from
bonding, special levy or other sources. Distribution to a county
board, or to the state board or the administrative council of an
area vocational educational center pursuant to subsection (b) of
this section, may be in a lump sum or in accordance with a schedule
of payments adopted by the authority pursuant to guidelines adopted
by the authority.
(k) Funds in the School Construction Fund shall first be
transferred and expended as follows:
(1) Any funds deposited in the School Construction Fund shall
be expended first in accordance with an appropriation by the
Legislature.
(2) To the extent that funds are available in the School
Construction Fund in excess of that amount appropriated in any
fiscal year, the excess funds may be expended for projects
authorized in accordance with the provisions of section sixteen of
this article.
(l) It is the intent of the Legislature to encourage county
boards to explore and consider arrangements with other counties
that may facilitate the highest and best use of all available funds, which may result in improved transportation arrangements for
students or which otherwise may create efficiencies for county
boards and the students. In order to address the intent of the
Legislature contained in this subsection, the authority shall grant
preference to those projects which involve multicounty arrangements
as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of
new school buildings to the School Building Authority for review
and approval prior to preparation of final bid documents. A vendor
who has been debarred pursuant to the provisions of sections
thirty-three-a through thirty-three-f, inclusive, article three,
chapter five-a of this code may not bid on or be awarded a contract
under this section.
(n) The authority may elect to disburse funds for approved
construction projects over a period of more than one year subject
to the following:
(1) The authority may not approve the funding of a school
construction project over a period of more than three years; and
(2) The authority may not approve the use of more than fifty
percent of the revenue available for distribution in any given
fiscal year for projects that are to be funded over a period of
more than one year. and
(3) In order to encourage local participation in funding
school construction projects, the authority may set aside limited funding, not to exceed $500,000, in reserve for one additional year
to provide a county the opportunity to complete financial planning
for a project prior to the allocation of construction funds. Any
funding shall be on a reserve basis and converted to a part of the
construction grant only after all project budget funds have been
secured and all county commitments have been fulfilled. Failure of
the county to solidify the project budget and meet its obligations
to the state within eighteen months of the date the funding is set
aside by the authority will result in expiration of the reserve and
the funds shall be reallocated by the authority in the succeeding
funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for
facilities and major improvement plans; guidelines
for modifications and updates, etc.; guidelines for
project evaluation; submission of certified list of
projects to be funded; department on-site
inspection of facilities; enforcement of required
changes or additions to project plans.
(a) The authority shall establish guidelines and procedures to
promote the intent and purposes of this article and assure the
prudent and resourceful expenditure of state funds for projects
under this article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school major improvement plans and projects submitted in the furtherance
of the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans as defined in
section two of this article;
(B) The procedures for a county to submit a preliminary plan,
a plan outline or a proposal for a plan to the authority prior to
the submission of the facilities plan. The preliminary plan, plan
outline or proposal for a plan shall be the basis for a
consultation meeting between representatives of the county and
members of the authority, including at least one citizen member,
which shall be held promptly following submission of the
preliminary plan, plan outline or proposal for a plan to assure
understanding of the general goals of this article and the
objective criteria by which projects will be evaluated, to discuss
ways the plan may be structured to meet those goals, and to assure
efficiency and productivity in the project approval process;
(C) The manner, time line and process for the submission of
each plan and annual plan updates to the authority;
(D) The requirements for public hearings, comments or other
means of providing broad-based input on plans and projects under
this article within a reasonable time period as the authority may
consider appropriate. The submission of each plan must be
accompanied by a synopsis of all comments received and a formal
comment by the county board, the state board or the administrative council of an area vocational educational center submitting the
plan;
(E) Any project specifications and maintenance specifications
considered appropriate by the authority including, but not limited
to, such matters as energy efficiency, preferred siting,
construction materials, maintenance plan and any other matter
related to how the project is to proceed;
(F) A prioritization by the county board, the state board or
the administrative council submitting the plan of each project
contained in the plan. In prioritizing the projects, the county
board, the state board or the administrative council submitting the
plan shall make determinations in accordance with the objective
criteria formulated by the School Building Authority in accordance
with this section. The priority list is one of the criteria that
shall be considered by the authority deciding how the available
funds should be expended;
(G) The objective means to be set forth in the plan and used
in evaluating implementation of the overall plan and each project
included in the plan. The evaluation must measure how the plan
addresses the goals of this article and any guidelines adopted
under this article, and how each project is in furtherance of the
facilities plan and school major improvement plan, as applicable,
as well as the importance of the project to the overall success of
the facilities plan or school major improvement plan and the overall goals of the authority; and
(H) Any other matters considered by the authority to be
important reflections of how a construction project or a major
improvement project or projects will further the overall goals of
this article.
(2) Guidelines and procedures which may be adopted by the
authority for requiring that a county board modify, update,
supplement or otherwise submit changes or additions to an approved
facilities plan or for requiring that a county board, the state
board or the administrative council of an area vocational
educational center modify, update, supplement or otherwise submit
changes or additions to an approved school major improvement plan.
The authority shall provide reasonable notification and sufficient
time for the change or addition as delineated in guidelines
developed by the authority. The guidelines shall require an update
of the estimated duration of school bus transportation times for
students associated with any construction project under
consideration by the authority that includes the closure,
consolidation or construction of a school or schools.
(3) Guidelines and procedures for evaluating project proposals
that are submitted to the authority that address, but are not
limited to, the following:
(A) Any project funded by the authority must be in furtherance
of the facilities plan or school major improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the
region, the facilities plan must state the manner in which the cost
and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction
project through a lease with an option to purchase pursuant to an
investment contract as described in subsection (f), section fifteen
of this article, the specifications for the project must include
the term of the lease, the amount of each lease payment, including
the payment due upon exercise of the option to purchase, and the
terms and conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects
which shall include, but are not limited to, the following:
(i) How the current facilities do not meet and how the plan
and any project under the plan meets the following:
(I) Student health and safety including, but not limited to,
critical health and safety needs;
(II) Economies of scale, including compatibility with similar
schools that have achieved the most economical organization,
facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing
other demographic considerations. The authority may not approve a
project after July 1, 2008, that includes a school closure,
consolidation or new construction for which a new bus route will be created for the transportation of students in any of the grade
levels prekindergarten through grade five to and from any school
included in the project, which new bus route exceeds by more than
fifteen minutes the recommended duration of the one-way school bus
transportation time for elementary students adopted by the state
board as provided in section five-d, article two-e of this chapter,
unless the county has received the written permission of the state
board to create the route in accordance with said that section;
five-d;
(IV) Multicounty and regional planning to achieve the most
effective and efficient instructional delivery system;
(V) (IV) Curriculum improvement and diversification, including
the use of instructional technology, distance learning and access
to advanced courses in science, mathematics, language arts and
social studies;
(VI) (V) Innovations in education;
(VII) (VI) Adequate space for projected student enrollments;
and
__(VIII) The history of efforts taken by the county board to
propose or adopt local school bond issues or special levies to the
extent Constitutionally permissible; and
(IX) (VII) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful
expenditure of state funds and achieve the purposes of this article for constructing, expanding, renovating or otherwise improving and
maintaining school facilities for a thorough and efficient
education.
(4) Guidelines and procedures for evaluating projects for
funding that address, but are not limited to, the following:
(A) Requiring each county board's facilities plan and school
major improvement plan to prioritize all the construction projects
or major improvement projects, respectively, within the county. A
school major improvement plan submitted by the state board or the
administrative council of an area vocational educational center
shall prioritize all the school improvement projects contained in
the plan. The priority list shall be one of the criteria to be
considered by the authority in determining how available funds
shall be expended. In prioritizing the projects, the county board,
the state board or the administrative council submitting a plan
shall make determinations in accordance with the objective criteria
formulated by the School Building Authority. The priority list
memorializing these determinations and all required reports,
including staff reports, and any other of the criteria required to
be submitted for funding consideration are public documents and are
to be provided to members of the public upon request; and
__(B) The return to each county submitting a project proposal an
explanation of the evaluative factors underlying the decision of
the authority to fund or not to fund the project; and
(C) (B) The allocation and expenditure of funds in accordance
with this article, subject to the availability of funds. Any
allocation and expenditure of funds that is awarded by vote of the
members of the School Building Authority that is not consistent
with the evaluation report of the School Building Authority staff
must account for any inconsistency by preparing findings of fact,
setting forth the rationales and if need be providing a concise
explanation of the reasoning behind such inconsistency in order to
provide justification for the funding.
(b) Prior to final action on approving projects for funding
under this article, the authority shall submit a certified list of
the projects to the Joint Committee on Government and Finance.
(c) The State Department of Education shall conduct on-site
inspections, at least annually, of all facilities which have been
funded wholly or in part by moneys from the authority or state
board to ensure compliance with the county board's facilities plan
and school major improvement plan as related to the facilities; to
preserve the physical integrity of the facilities to the extent
possible; and to otherwise extend the useful life of the
facilities: Provided, That the state board shall submit reports
regarding its on-site inspections of facilities to the authority
within thirty days of completion of the on-site inspections:
Provided, however, That the state board shall promulgate rules
regarding the on-site inspections and matters relating thereto, in consultation with the authority, as soon as practical and shall
submit proposed rules for legislative review no later than December
1, 1994.
(d) Based on its on-site inspection or notification by the
authority to the state board that the changes or additions to a
county's board facilities plan or school major improvement plan
required by the authority have not been implemented within the time
period prescribed by the authority, the state board shall restrict
the use of the necessary funds or otherwise allocate funds from
moneys appropriated by the Legislature for those purposes set forth
in section nine, article nine-a of this chapter.
NOTE: The purpose of this bill is to eliminate local
participation in funding school construction projects and the
associated limited funding reserve. The bill eliminates certain
regional planning activities when evaluating proposed construction
projects. The bill eliminates the requirement of a county board's
efforts in school bond issues being a consideration when evaluating
proposed projects. The bill eliminates the requirement that
counties receive explanations detailing the authority's decision
concerning the funding of projects. The bill also declares certain
documents related to funding consideration to be public documents
and available to the public upon request. The bill requires that
funds awarded by the School Building Authority must be consistent
with the evaluation report of the School Building Authority.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.