West Virginia
Legislature
2017 Regular Session
Introduced
House Bill 2409
(By Delegate Gearheart)
[
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. Therefore, as a prerequisite for eligibility to receive an
allocation of school major improvement funds from the authority, a county board
must provide annual school facility maintenance expenditure data to the
authority which shall be jointly reviewed by the authority and the state
Department of Education Office of School Facilities and Transportation to
assist the authority in its determination of the most meritorious projects to
be funded through the School Major Improvement Fund. The state board shall
promulgate rules relating to county boards' school facility maintenance
budgets, including items which shall be included in these 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 a heading or the present law, and underscoring
indicates new language that would be added.