hdj2005-04-09-60

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Saturday, April 9, 2005

The House of Delegates met at 9:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, March 8, 2005, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Messages from the Senate
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for S. B. 357, Authorizing Department of Revenue promulgate legislative rules.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 579), and there were--yeas 65, nays 3, absent and not voting 32, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane and Walters.
Absent And Not Voting: Amores, Anderson, Beach, Beane, Blair, Border, Brown, Canterbury, Craig, Doyle, Duke, Eldridge, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Howard, Hunt, Leach, Long, Mahan, Miley, Schoen, Sobonya, Spencer, Stevens, Susman, Tansill, Thompson, Ron and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 357) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 580), and there were--yeas 70, nays 1, absent and not voting 29, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Amores, Anderson, Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Duke, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Leach, Long, Mahan, Miley, Schoen, Sobonya, Spencer, Stevens, Susman, Tansill, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 357) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Eldridge announced that he was absent when the vote was taken on Roll No. 579, and that had he been present, he would have voted "Yea" thereon.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com . Sub. for H. B. 2663, Relating to digging, growing, collecting, gathering, possessing and selling ginseng.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page twenty, section three-a, line two hundred ninety-eight, by striking out the words "imprisoned in jail" and inserting in lieu thereof the words "confined in a correctional facility".
On page sixteen, section three-a, line two hundred twenty-two, by striking out all of paragraph (ii).
And,
By renumbering the remaining paragraphs.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with amendment, as follows:
On page twenty, section three-a, line two hundred ninety-eight, by striking out the words "confined in a correctional facility" and inserting in lieu thereof "confined in jail".
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 581), and there were--yeas 75, nays 1, absent and not voting 24, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Anderson, Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Long, Mahan, Miley, Schoen, Sobonya, Spencer, Tansill, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2663) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 2718, Authorizing the Department of Commerce to promulgate legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That article 10, chapter 64 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Economic development authority.
The legislative rule filed in the state register on the twenty-fourth day of August, two thousand four, under the authority of section nine, article thirteen-u, chapter eleven, of this code, modified by the Economic Development Authority to meet the objections of the Legislative Rule- Making Review Committee and refiled in the state register on the first day of February, two thousand five, relating to the Economic Development Authority (high-growth business investment tax credit, 117 CSR 5), is authorized, with the following amendments:
On page three, section three, line 4, by striking all of sections 3.2.b., 3.2.c. and 3.2.c.1 and inserting in lieu thereof the following:
"3.2.b. The Authority may not allocate more than fifty thousand dollars of this tax credit to an eligible taxpayer in a fiscal year.
3.2.c. Any unused portion of the tax credit may be carried forward to succeeding taxable years until the expiration of the fourth taxable year after the taxable year in which the investment was made. The tax credit remaining thereafter is forfeited."
On page three, section three, line eighteen, following the word "The", by striking out the word "Statute" and inserting in lieu thereof the words "tax credit".
§64-10-2. Bureau of Employment Programs.
The legislative rule filed in the state register on the nineteenth day of March, two thousand four, under the authority of section six, article two, chapter twenty-one-a, of this code, modified by the Bureau of Employment Programs to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on the seventeenth day of June, two thousand four, relating to the Bureau of Employment Programs (implementing the requirement that prohibits agencies from granting, issuing or renewing contracts, licenses, permits, certificates or other authority to conduct a trade, profession or business, 96 CSR 1), is authorized, with the following amendment:
On page five, section five, line one, following the word "The", by striking out the word "authorizing" and inserting the word "approval".
§64-10-3. Division of labor.
(a) The legislative rule filed in the state register on the twelfth day of August, two thousand four, under the authority of section eleven, article three-c, chapter twenty-one, of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on the sixteenth day of February, two thousand five, relating to the Division of Labor (Elevator Safety Act, 42 CSR 21), is authorized, with the following amendments:
On page three, subdivision 6.1., after the words "private inspector may not" by striking out the words "provide inspection services to an elevator on which the inspector, his or her employer or employee of his or her employer has made repairs or provided routine maintenance" and inserting in lieu thereof the words "inspect repairs or routine maintenance work performed by the inspector, the inspector's employer or another employee of the inspector's employer".
On page three, subdivision 6.1., after the words "may enter into any" by inserting the words "state owned".
(b) The legislative rule filed in the state register on the twelfth day of August, two thousand four, under the authority of section twenty, article one, chapter forty-seven, of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on the sixteenth day of February, two thousand five, relating to the Division of Labor (weights and measures calibration fees, 42 CSR 26), is authorized.
(c) The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section four, article nine, chapter twenty-one, of this code, relating to the Division of Labor (West Virginia Manufactured Housing Construction and Safety Standards Board, 42 CSR 19), is authorized.
§64-10-4. Division of Natural Resources.
(a) The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section twenty-three-a, article two, chapter twenty, of this code, relating to the Division of Natural Resources (commercial whitewater outfitters, 58 CSR 12), is authorized.
(b) The legislative rule filed in the state register on the twenty-third day of August, two thousand four, under the authority of section seven, article one, chapter twenty, and section eleven, article two, chapter twenty, of this code, relating to the Division of Natural Resources (commercial sale of wildlife, 58 CSR 63), is authorized.
(c) The legislative rule filed in the state register on the twelfth day of August, two thousand four, under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on the seventeenth day of November, two thousand four, relating to the Division of Natural Resources (revocation of hunting and fishing licenses, 58 CSR 23), is authorized.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 582), and there were--yeas 79, nays 1, absent and not voting 20, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Long, Mahan, Miley, Schoen, Sobonya, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2718) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 583), and there were--yeas 82, nays none, absent and not voting 18, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Mahan, Schoen, Sobonya, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2718) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 2816, Creating the West Virginia Healthy Act of 2005.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-1E-1, §5-1E-2, §5-1E-3, §5-1E-4 and §5-1E-5; and that §18-2-6a, §18-2-7a and §18-2-9 of said code be amended and reenacted, 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 1E. HEALTHY WEST VIRGINIA PROGRAM.
§5-1E-1. Findings and purposes.
The Legislature finds and declares that the rise in obesity and related weight problems accompanied by the resulting incidence of chronic disease has created a health care crisis that burdens the health care infrastructure of the state. The Legislature also finds that the State of West Virginia must take an informed, sensitive approach to communicate and educate the citizens of the state about health issues related to obesity and inappropriate weight gain. The Legislature further finds that the state must take action to assist West Virginia citizens in engaging in healthful eating and regular physical activity. The Legislature further finds that the state must invest in research that improves understanding of inappropriate weight gain and obesity. These efforts are needed to coordinate the state's interest in improving the health of its citizens and in reducing the cost of health care. Therefore, it is the purpose of this article to create, as an integral part of the Department of Health and Human Resources, an entity to coordinate the efforts of all agencies to prevent and remedy obesity and related weight problems and to ensure that all citizens are being educated on this serious health risk that is affecting the state.
§5-1E-2. Creation of the Office of Healthy Lifestyles.
There is hereby created the Office of Healthy Lifestyles within the Department of Health and Human Resources. The management of this office shall be provided in the manner determined by the Secretary of the Department of Health and Human Resources to be in the best interest of the state and its citizens.
§5-1E-3. Powers and duties of the Office.
The Office of Healthy Lifestyles shall:
(1) Establish a Healthy Lifestyle Coalition to assure consistency of the public health and private sector approach to dealing with programs that address the problems that affect overweight and obese individuals; to provide a forum for discussing the issues that affect healthy lifestyles and to identify best practices that can be replicated. By the first day of July, two thousand five, the Governor shall appoint thirteen members of the Coalition whose terms shall be for a period of four years, and the members may be reappointed to a second term. The terms may be staggered by the Governor to assure continuity of experience on the coalition. Members shall represent state agencies, community organizations and other entities which have an interest and expertise in obesity. Members may not be compensated but shall receive reimbursement for expenses incurred while performing the business of the coalition. The Coalition shall meet monthly for at least the first eighteen months of the Coalition to develop and implement an action plan to meet the goals established by the Coalition;
(2) Establish a clinical advisory committee to assure a unified approach using the latest research to assure consistency in program development;
(3) Establish a statewide voluntary private sector partnership and recognition program for employers, merchants, restaurants and other private sector businesses to encourage the development or further advance current programs that encourage healthy lifestyles;
(4) Coordinate higher education training programs for dietary and exercise physiology students with rural health care providers;
(5) Coordinate existing health promotion initiatives to assure clear, concise and consistent communication;
(6) Solicit, accept and expend grants, gifts, bequests, donations and other funds from any source for programs that will enable the state to accomplish the goals of this program;
(7) Develop a cross-agency series of goals to ensure consistency throughout the system of providers and agencies working in the area of improving lifestyles;
(8) Establish as a goal to increase the prevalence of healthy weight among all people in the state because obesity leads to diabetes, heart disease, strokes and kidney failure. These diseases, often arising in older age as a result of unhealthy lifestyles that began during a person's youth, place an undue financial burden on individuals, the health care industry and state health care programs;
(9) Consider the resources of the local health departments and recommend ongoing relationships, as appropriate, between local health departments, family resource networks, faith- based organizations, cooperative extension services, farm bureaus and other health care providers;
(10) Encourage the development of incentives for participation in employee wellness programs. Incentives may be based upon, but should not be limited to, the employee's completion of health questionnaires or participating in healthy lifestyles initiatives, and may use experiences of successful initiatives that have occurred in this state. The action plan should include among its targets, state government employees in this incentive program;
(11) Build upon existing initiatives that focus on any of the coalition's goals, soliciting input from these initiatives and eliminating duplication of efforts;
(12) Report its progress annually by the first of December to the Legislative Oversight Commission on Health and Human Resource Accountability.
§5-1E-4. Partnership to encourage healthy lifestyles by children and families.
(a) The West Virginia Healthy Lifestyles program will develop a statewide voluntary private sector partnership program to work with businesses throughout the State that encourage and promote healthy lifestyles among their employees and communities.
(b) Beginning the first day of July, two thousand five, those businesses voluntarily choosing to participate in the Healthy Lifestyles program shall submit their own detailed programs to the Office of Healthy Lifestyles for review. The programs should be creative and unique, highlighting the efforts of the business to promote healthy lifestyles to West Virginians through sensible diet and physical fitness.
(c) The West Virginia Healthy Lifestyles program will develop a recognition program for private sector enterprises that develop or advance programs that address the problems affecting overweight and obese individuals and that promote a healthy lifestyle.
(d) Any business program promoting healthy lifestyles that is recognized by the Office of Healthy Lifestyles will be issued a universally recognized logo, suitable for public display by the business.
(e) Marketing of programs recognized by the Office of Healthy Lifestyles shall take place through all state agencies. The West Virginia Public Employees Insurance Agency, the Bureau for Medical Services and the West Virginia Workers' Compensation Commission shall aggressively market this program to their members for the purposes of health promotion among their members.
(f) The Office of Healthy Lifestyles shall market recognized programs to other businesses, as models, to help create additional programs promoting healthy lifestyles.
(g) The Office of Healthy Lifestyles shall report annually by the first day of December to the Legislative Oversight Commission on Health and Human Resources Accountability: (1) The number of participants; (2) the impact on businesses as established by a survey of participating businesses; and (3) the results of consumer satisfaction surveys all designed by the Office of Healthy Lifestyles.
§5-1E-5. Creation of a Healthy Lifestyles Fund.
There is hereby created in the State Treasury a separate special revenue account, which shall be an interest bearing account, to be known as the 'Healthy Lifestyles Fund'. The special revenue account shall consist of all appropriations made by the Legislature, income from the investment of moneys held in the special revenue account and all other sums available for deposit to the special revenue account from any source, public or private. No expenditures for purposes of this section are authorized from collections except in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the general revenue fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. No expenses incurred under this section shall be a charge against the general funds of the state.

CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-6a. Sale of healthy beverages and soft drinks in schools.
(a) In order to generate funding for necessary programs and supplies, county boards may permit the sale of healthy beverages and soft drinks in county ~~high~~ schools except during breakfast and lunch periods as follows:
(1) During a school day, soft drinks may not be sold in areas accessible to students in an elementary school, middle school or junior high school through vending machines on the premises, in school stores or in school canteens or through fund raisers by students, teachers, groups or by any other means. In elementary, middle school or junior high school, only healthy beverages may be sold in vending machines on the premises, in school canteens or through fundraisers by students, teachers, groups or by any other means. Nothing in this section shall be construed to prohibit or limit sale or distribution of any food or beverage item through fund-raising activities of students, teachers or educational groups when the items are intended for sale off the school grounds.
(2) Those high schools which permit the sale of soft drinks through vending machines also shall offer for sale healthy beverages. Of the total beverages offered for sale, at least fifty percent shall be healthy beverages. Vending machines containing healthy beverages shall be in the same location or substantially similar location as vending machines containing soft drinks.
(3) The sale of ~~such~~ healthy beverages and soft drinks shall be in compliance with the rules of the National School Lunch Program and the School Breakfast Program of the State Board and the Nutrition Service of the United States Department of Agriculture, which became effective on the seventeenth day of June, one thousand nine hundred eighty-five. ~~Provided,~~ ~~That, if under such rules,~~ ~~the sale of soft drinks shall become prohibited, such rules shall not prohibit the sale of soft drinks in high~~ ~~schools in the state of West Virginia.~~ Seventy-five percent of the profits from the sale of healthy beverages and soft drinks shall be allocated by a majority vote of the faculty senate of each school and twenty-five percent of the profits from the sale of healthy beverages and soft drinks shall be allocated to the purchase of necessary supplies by the principal of the school.
(b) For the purposes of this section:
(1) 'School day' means the period of time between the arrival of the first student at the school building and the end of the last instructional period; and
(2) 'Healthy beverage' means water, one hundred percent fruit and vegetable juice, low-fat milk and other juice beverages with a minimum of twenty percent real juice.
§18-2-7a. Legislative findings; required physical education; program in physical fitness.
(a) The Legislature hereby finds that obesity is a problem of epidemic proportions in this state. There is increasing evidence that all segments of the population, beginning with children, are becoming more sedentary, more overweight, and more likely to develop health risks and diseases including Type II Diabetes, high blood cholesterol and high blood pressure. The Legislature further finds that the promotion of physical activity during the school day for school children is a crucial step in combating this growing epidemic and in changing the attitudes and behavior of the residents of this state toward health promoting physical activity.
(b) As a result of these findings, the State Department of Education shall establish the requirement that each child enrolled in the public schools of this state actively participates in physical education classes during the school year to the level of his or her ability as follows:
(1) Kindergarten to and including grade five. -- Not less than thirty minutes of physical education, including physical exercise and age appropriate physical activities, for not less than three days a week.
(2) Grade six to and including grade eight. -- Not less than one full period of physical education, including physical exercise and age appropriate physical activities, each school day of one semester of the school year.
(3) Grade nine to and including grade twelve. -- Not less than one full course credit of physical education, including physical exercise and age appropriate physical activities which shall be required for graduation and the opportunity to enroll in an elective lifetime physical education course.
(c) Enrollment in physical education classes and activities required by the provisions of this section shall not exceed, and shall be consistent with, state guidelines for enrollment in all other subjects and classes: Provided, That schools which do not currently have the number of certified physical education teachers or required physical setting may develop alternate programs that will enable current staff and physical settings to be used to meet the physical education requirements established herein. These alternate programs shall be submitted to the State Department of Education and the Healthy Lifestyle Council for approval. Those schools needing to develop alternate programs shall not be required to implement this program until the school year commencing two thousand six.
(d) The State Board ~~of Education~~ shall prescribe a program within the existing health and physical education program which incorporates ~~the~~ fitness testing, ~~awards~~ reporting, recognition, fitness events and incentive programs ~~designed under the auspices of the President's Council on Physical Fitness and Sports~~ ~~and~~ which requires the participation ~~through grade~~ in grades four through eight and the required high school course ~~nine of each student and~~ ~~of each school in the state in both the challenge program and the~~ ~~state champion program of the council~~. The program shall be selected from nationally accepted fitness testing programs designed for school-aged children that test cardiovascular fitness, muscular strength and endurance, flexibility and body composition: Provided, That nothing in this subsection shall be construed to prohibit the use of programs designed under the auspices of the President's Council on Physical Fitness and Sports. The program shall include ~~the~~ modified ~~test~~ tests for exceptional students. Each school in the state shall participate in National Physical Fitness and Sports Month in May of each year and shall make every effort to involve the community it serves in the related events.
(e) Body mass index measures shall be used as an indicator of progress toward promoting healthy lifestyles among school-aged children. The body mass index measures shall be determined using student height and weight data and reported to the State Department of Education via the West Virginia Education Information System. Body mass index measures shall be included in kindergarten screening procedures. Students in grades four through eight and students enrolled in high school physical education courses shall have their body mass index measured through required fitness testing procedures. All school personnel responsible for conducting and reporting body mass index measures shall receive training or written documentation on the appropriate methodology for assessing the body mass index and reporting data in a manner that protects student confidentiality. All body mass index data shall be reported in aggregate to the Governor, the State Board of Education, the Healthy Lifestyles Coalition and the Legislative Oversight Commission on Health and Human Resource Accountability.
§18-2-9. Required courses of instruction; violation and penalty.
(a) In all public, private, parochial and denominational schools located within this state there shall be given prior to the completion of the eighth grade at least one year of instruction in the history of the state of West Virginia. ~~Such~~ The schools shall require regular courses of instruction by the completion of the twelfth grade in the history of the United States, in civics, in the constitution of the United States, and in the government of the state of West Virginia for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of political and economic democracy in America and increasing the knowledge of the organization and machinery of the government of the United States and of the state of West Virginia. The State Board ~~of education~~ shall, with the advice of the State Superintendent, ~~of schools~~ prescribe the courses of study covering these subjects for the public schools. It shall be the duty of the officials or boards having authority over the respective private, parochial and denominational schools to prescribe courses of study for the schools under their control and supervision similar to those required for the public schools. To further such study, every high school student eligible by age for voter registration shall be afforded the opportunity to register to vote pursuant to section twenty-two, article two, chapter three of this code.
(b) The State Board ~~of education~~ shall cause to be taught in all of the public schools of this state the subject of health education, including instruction in any of the grades six through twelve as ~~deemed~~ considered appropriate by the county board, on (1) the prevention, transmission and spread of acquired immune deficiency syndrome and other sexually transmitted diseases, ~~and~~ (2) substance abuse, including the nature of alcoholic drinks and narcotics, tobacco products, and other potentially harmful drugs, with special instruction as to their effect upon the human system and upon society in general and (3) the importance of healthy eating and physical activity to maintaining healthy weight. The course curriculum requirements and materials for ~~such~~ the instruction shall be adopted by the State Board by rule in consultation with the Department of Health and Human Resources. The State Board shall prescribe a standardized health education assessment to be administered within health education classes to measure student health knowledge and program effectiveness.
An opportunity shall be afforded to the parent or guardian of a child subject to instruction in the prevention, transmission and spread of acquired immune deficiency syndrome and other sexually transmitted diseases to examine the course curriculum requirements and materials to be used in ~~such~~ the instruction. The parent or guardian may exempt ~~such~~ the child from participation in ~~such~~ the instruction by giving notice to that effect in writing to the school principal.
(c) Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding ten dollars for each violation, and each week during which there is a violation shall constitute a separate offense. If the person so convicted occupy a position in connection with the public schools, that person shall automatically be removed from ~~such~~ that position and shall be ineligible for reappointment to that or a similar position for the period of one year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2816 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-1E-1, §5-1E-2, §5-1E-3, §5-1E-4 and §5-1E-5; and to amend and reenact §18-2-6a, §18-2-7a and §18-2-9 of said code, all relating to promoting healthy lifestyles; creating a Healthy Lifestyles Office in the Department of Health and Human Resources; establishing the functions of the Office; creating a special revenue account; establishing a voluntary private sector partnership program to encourage healthy lifestyles; establishing physical activity requirements in the schools; using body mass index as an indicator of progress; encouraging the use of healthy beverages in schools; and adding requirements for health education."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 584), and there were--yeas 81, nays none, absent and not voting 19, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Iaquinta, Mahan, Schoen, Sobonya, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2816) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 2866, Providing for continuation of tuition and fee payments to members after discharge from military service due to wounds or injuries received in the line of duty.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section twenty-one, line twelve, by striking out the word "such" and inserting in lieu thereof the word "the".
On page two, section twenty-one, line seventeen, by striking out the word "such" and inserting in lieu thereof the word "the".
On page two, section twenty-one, line nineteen, after the word "may" by inserting the word "it".
And,
On page three, section twenty-one, line thirty-one, by striking out the word "Such" and inserting in lieu thereof the word "The".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 585), and there were--yeas 87, nays none, absent and not voting 13, with the absent and not voting being as follows:
Absent And Not Voting: Beane, Canterbury, Doyle, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Mahan, Schoen, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2866) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 586), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Mahan, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2866) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3018, Relating to designation of Mountaineer Challenge Academy as a special alternative education program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages three through seven, by striking out all of section six and inserting in lieu thereof a new section six, to read as follows:

"§18-2-6. Classification and standardization of schools; standards for degrees and diploma; certificates of proficiency; establishment of alternative education programs.

(a) The State Board shall ~~make~~ promulgate rules for the accreditation, classification and standardization of all schools in the state, except institutions of higher education, and shall determine the minimum standards for the granting of diplomas and certificates of proficiency by those schools. ~~Not later than the school year one thousand nine hundred ninety--ninety-one,~~ The certificates of proficiency ~~including~~ shall include specific information regarding the graduate's skills, competence and readiness for employment or honors and advanced education and shall be granted, along with the diploma, to every eligible high school graduate. The certificate of proficiency shall include the program of study major completed by the student only for those students who have completed the required major courses, or higher level courses, advanced placement courses, college courses or other more rigorous substitutes related to the major, and the recommended electives.
No (b) An institution of less than collegiate or university status may not grant any diploma or certificate of proficiency on any basis of work or merit below the minimum standards prescribed by the State Board.
No (c) A charter or other instrument containing the right to issue diplomas or certificates of proficiency ~~shall~~ may not be granted by the State of West Virginia to any institution or other associations or organizations of less than collegiate or university status within the state until the condition of granting or issuing such diplomas or other certificates of proficiency has first been approved in writing by the State Board.
(d) The State Board ~~also may~~ ~~establish policies and procedures~~ shall promulgate a rule for the approval of alternative education programs for disruptive students who are at risk of not succeeding in the traditional school structure. ~~These policies and procedures~~ This rule may provide for the waiver of other policies of the State Board, the establishment and delivery of a nontraditional curriculum, the establishment of licensure requirements for alternative education program teachers, and the establishment of performance measures for school accreditation.
(e) If a student attends an approved alternative education program or the Mountaineer Challenge Academy, which is designated as a special alternative education program pursuant to section twenty-four, article one-b, chapter fifteen of this code, and the student graduates or passes the General Equivalency Development (GED) tests within five years of beginning ninth grade, that student shall be considered graduated for the purposes of calculating the high school graduation rate used for school accreditation and school system approval, subject to the following:
(1) The student shall only be considered graduated to the extent that this is not in conflict with any provision of federal law relating to graduation rates;
(2) If the State Board determines that this is in conflict with a provision of federal law relating to graduation rates, the State Board shall request a waiver from the United States Department of Education; and
(3) If the waiver is granted, notwithstanding the provisions of subdivision (1) of this subsection, the student graduating or passing the General Educational Development (GED) tests within five years shall be considered graduated.
(f) The State Board shall promulgate a rule to support the operation of the National Guard Youth Challenge Program operated by the Adjutant General and known as the 'Mountaineer Challenge Academy' which is designated as a special alternative education program pursuant to section twenty-four, article one-b, chapter fifteen of this code, for students who are at risk of not succeeding in the traditional school structure. The rule shall set forth policies and procedures applicable only to the Mountaineer Challenge Academy that provide for, but are not limited to, the following:
(1) Implementation of provisions set forth in section twenty-four, article one-b, chapter fifteen of this code;
(2) Precedence of the policies and procedures designated by the National Guard Bureau for the operation of the Mountaineer Challenge Academy special alternative education program;
(3) Consideration of a student participating in the Mountaineer Challenge Academy special alternative education program at full enrollment status in the referring county for the purposes of funding and calculating attendance and graduation rates, subject to the following:
(A) The student shall only be considered at full enrollment status for the purposes of calculating attendance and graduation rates to the extent that this is not in conflict with any provision of federal law relating to attendance or graduation rates;
(B) If the State Board determines that this is in conflict with a provision of federal law relating to attendance or graduation rates, the State Board shall request a waiver from the United States Department of Education;
(C) If the waiver is granted, notwithstanding the provisions of paragraph (A) of this subdivision, the student shall be considered at full enrollment status in the referring county for the purposes of calculating attendance and graduation rates; and
(D) Consideration of the student at full enrollment status in the referring county is for the purposes of funding and calculating attendance and graduation rates only. For any other purpose, a student participating in the Academy is considered withdrawn from the public school system.
(4) Articulation of the knowledge, skills and competencies gained through alternative education so that students who return to regular education may proceed toward attainment or attain the standards for graduation without duplication; and
(5) Consideration of eligibility to take the General Educational Development (GED) Tests by qualifying within the extraordinary circumstances provisions established by State Board rule of a student participating in the Mountaineer Challenge Academy special alternative education program who does not meet any other criteria for eligibility.
(g) Nothing in this section or the rules promulgated hereunder compels the Mountaineer Challenge Academy to be operated as a special alternative education program or to be subject to any other laws governing the public schools except by its consent.
(h) The State Board shall report to the Legislative Oversight Commission on Education Accountability on or before the first day of January of each year on its efforts to cooperate with and support the Mountaineer Challenge Academy pursuant to this section and section twenty-four, article one-b, chapter fifteen of this code."
And,
By amending the title of the bill to read as follows:
H. B. 3018 - "A Bill to amend and reenact §15-1B-24 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-2-6 of said code, all relating to cooperation of the State Board of Education with the Mountaineer Challenge Academy; mandating a rule for the approval of alternative education programs; diplomas and certificates of proficiency; designation of Academy as special alternative education program; calculation of graduation rate for student attending an approved alternative education program or the Academy; requiring State Board rule to support the operation of the Academy; providing minimum provisions to be included in the rule; application limited to Academy consent; requiring report to Legislative Oversight Commission on Education Accountability; and technical amendments."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 587), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3018) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3031, Prohibiting unlicensed practice of landscape architecture.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §30-22-5a, to read as follows:
ARTICLE 22. LANDSCAPE ARCHITECTS.
§30-22-5a. Limited fee increase.
Notwithstanding the fees set forth in this article, the West Virginia State Board of Landscape Architects is hereby authorized to increase the fees it assesses under the provisions of this article. The fee increase shall be for one year, commencing the first day of July, two thousand five. Each increased fee may not exceed one hundred dollars."
And,
By amending the title of the bill to read as follows:
H. B. 3031 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-22-5a, relating to the West Virginia State Board of Landscape Architects; authorizing an increase of fees for one year; and limiting the increase."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 588), and there were--yeas 83, nays 9, absent and not voting 8, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Carmichael, Lane, Sumner, Rick Thompson, Trump and Walters.
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3031) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 589), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hartman, Hunt, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3031) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 3051, Relating to defining certain terms relative to hunting.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section two, line forty-three, by striking out the word "galliformes" and inserting in lieu thereof the word "gallinule".
And,
On page four, line forty-five, by striking out the word "galli" and inserting in lieu thereof the word "galliformes".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 590), and there were--yeas 90, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3051) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3203, Authorizing the closure of certain existing retirement funds for municipal policemen and firemen and establishment of a defined contribution plan in lieu thereof.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §8-13C-1 and §8-13C-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §8-13C- 14, all to read as follows:
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX; AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS; ADDITIONAL AUTHORITIES RELATING TO PENSIONS AND BOND ISSUANCE.

§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the citizens of the state;
(b) Imposing additional taxes can be detrimental to the economy of the state;
(c) Imposing additional taxes is only proper under certain circumstances;
(d) For many municipalities with severe unfunded liabilities of the police and fire pension funds, all available sources of local revenue have been exhausted. Property taxes are at the maximum allowed by the State Constitution and local business and occupation taxes and utility taxes are at the maximum rates allowed by state law. Other fees have reached the economic maximum and are causing relocation of business outside the municipal boundaries;
(e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of significant future growth;
(f) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year period;
(g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds now constitute a large percentage of those municipalities' total budget and will rise to an even larger percentage of the available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities by state law;
(h) As the required pension payments rise, many of the municipalities with severe unfunded police and fire pension fund liabilities will find it impossible to maintain at minimum levels necessary and proper city services including, but not limited to, police and fire protection, street maintenance and repair and sanitary services;
(i) For some of the municipalities with severe unfunded liabilities of the police and fire pension funds, the combination of the steeply rising pension obligations and the stagnant revenue sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this happens, pensioners would either not receive the full benefits which they have been promised or pressure would be placed on the state to fund these programs;
(j) For a municipality that has the most severe unfunded liability in its pension funds, paying off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the municipality's citizens;
(k) Only for a municipality that has the most severe unfunded liability in its pension funds would the imposition of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of those taxes be an appropriate method of addressing the unfunded liability; ~~and~~
(l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax and an alternative municipal use tax be appropriate;
(m) Only for a municipality that has the most severe unfunded liability in its pension funds would the closure of its existing pension and relief fund plan for policemen and firemen to those newly employed and the creation of a defined contribution plan for newly employed policemen and firemen be appropriate; and
(n) Only for a municipality that has the most severe unfunded liability in its pension funds, that closes its existing pension and relief fund plan for policemen and firemen to those newly employed and that creates a defined contribution plan for newly employed policemen and firemen, would the issuance of bonds to address the unfunded liability of its existing pension and relief fund plan for policemen and firemen be appropriate.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be used solely for one of the ~~purpose of~~ following purposes:
(1) Directly reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds of the qualifying municipality imposing the tax; or ~~The proceeds used for this purpose shall be in addition to the minimum annual contribution required by section twenty, article twenty-two of this chapter.~~
(2) Meeting the principal, interest and any reserve requirement obligations of any bonds issued pursuant to section fourteen of this article.
(b) A qualifying municipality loses its authority to impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax pursuant to this article after: For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes directly to reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds, the qualifying municipality loses its authority to impose those taxes after:
(1) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated; or
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to eliminate the unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds.
(c) For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes to the principal, interest and any reserve requirement and arbitrage rebate obligations on any bonds issued pursuant to section fourteen of this article, the qualifying municipality loses its authority to impose those taxes after:
(1) The principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article are met; or
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article; and
(3) After retirement of bonds issued pursuant to section fourteen of this article, any unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated.
§8-13C-14. Authorization for closure of existing retirement plans, creation of defined contribution plans and issuance of bonds for certain qualifying municipalities.

(a) Notwithstanding any other section of code to the contrary and subject to subsection (b) of this section, any qualifying municipality, as that term is defined in section two of this article, has the following authority:
(1) To close its existing pension and relief fund plan for policemen and firemen provided in article twenty-two of this chapter for policemen and firemen hired on and after a future date to be set by the governing body of the municipality;
(2) To establish a defined contribution plan for policemen and firemen hired on and after the future date set by the governing body of the municipality to close its existing pension and relief fund plan for policemen and firemen; and
(3) to issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding bonds issued to refund, in whole or in part, bonds issued for such purpose.
(b) The authority granted in subsection (a) of this section is subject to the following:
(1) No qualifying municipality may close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section unless the qualifying municipality also establishes a defined contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of this section. No qualifying municipality may establish a defined contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of this section unless the qualifying municipality also closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section. No qualifying municipality may issue bonds pursuant to subdivision (3), subsection (a) of this section unless the qualifying municipality also closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision ~~(a)~~ (1), subsection (a) of this section and establishes a defined contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of this section. If a qualifying municipality elects not to issue bonds pursuant to subdivision (3), subsection (a) of this section, nothing in this section may be construed to prohibit the qualifying municipality from closing its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section and establishing a defined contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of this section.
(2) No qualifying municipality may exercise any authority provided in subsection (a) of this section unless it obtains a determination of the unfunded actuarial accrued liability of its existing pension and relief fund plans for policemen and firemen from the State Treasurer;
(3) If the qualifying municipality chooses to issues bonds pursuant to subdivision (3), subsection (a) of this section, the following applies:
(A) The proceeds of the revenue bonds shall be at least equal to the unfunded actuarial accrued liability as determined by the State Treasurer plus any reserve fund requirements and any costs, including accrued or capitalized interest, associated with issuing the bonds. All of the proceeds shall be applied to the payment of the unfunded actuarial accrued liability, the funding of reserve requirements and the payment of costs associated with the issuance of the bonds, and may not be used for any other purpose; and
(B) The proceeds of any refunding bonds shall be used to refund all or any portion of the revenue bonds authorized in this section, to fund any required reserve requirements for such refunding bonds and to pay costs of issuance associated with such refunding bonds and for no other purpose;
(4) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) ~~(1)~~ of this section, the qualifying municipality shall impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes at a rate projected to generate sufficient revenue to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds, subject to the following:
(A) This requirement is void after the qualifying municipality loses its authority to impose those taxes pursuant to subsections (b) or (c), section nine of this article; and
(B) If the revenue generated by a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax is insufficient to meet the principal, interest, and any reserve requirement and arbitrage rebate obligations on the bonds, the qualifying municipality shall not issue the bonds;
(5) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) of this section, all proceeds from the taxes shall be dedicated solely to paying the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds;
(6) If the qualifying municipality elects to close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section, all current and retired employees in the existing pension and relief fund plans for policemen and firemen shall remain in that plan and shall be paid all benefits of that plan in accordance with Part III, article twenty-two of this chapter;
(7) Any such revenue bonds or refunding bonds shall bear interest at not more than twelve percent per annum, payable semiannually, or at shorter intervals, and shall mature at such time or times, not exceeding thirty years, as may be determined by the ordinance authorizing the issuance of such bonds. Such bonds may be made redeemable before maturity, at the option of the municipality at not more than the par value thereof, plus a premium of not more than five percent, under such terms and conditions as may be fixed by the ordinance authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. The ordinance shall determine the form of the bonds and shall set forth any registration or conversion privileges, and shall fix the denomination or denominations of such bonds, and the place or places of the payment of principal and interest thereof, which may be at any banking institution or trust company within or without the state. The bonds shall contain a statement on their face that the municipality shall not be obligated to pay the same, or the interest thereon, except from the special fund derived from revenues collected by the municipality from the imposition of a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes and which the municipality may pledge as security for such bonds. All such bonds shall be, and shall have and are hereby declared to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial Code of the state. The bonds shall be executed in such manner as the governing body of the municipality may direct. The bonds shall be sold by municipality in such manner as may be determined to be for the best interest of the municipality. Any surplus of the bond proceeds over and above the cost of paying the unfunded liability, plus any amount required for reserves, capitalized interest and costs of issuance thereof or in the case of refunding bonds over and above the amount necessary to refund the existing bonds being refunded by such issue, plus any amount required for reserves, capitalized interest and costs of issuance thereof, shall be paid into the debt service fund for such bonds; and
(8) The defined contribution plan established by the municipality shall:
(A) Meet the federal qualification requirements of 26 U.S.C. §401 and related sections of the Internal Revenue Code as applicable to governmental plans;
(B) Set the amount of each employee's contribution and the amount of each employer's contribution;
(C) Require that the amount of annuity payments a retired member receives be based solely upon the balance in the member's annuity account at the date of retirement, the retirement option selected, or in the event of an annuity option being selected, the actuarial life expectancy of the member of any other factors that normally govern annuity payments;
(D) Include detailed provisions that require the prudent and safe handling of the retirement funds;
(E) Provide retirement options; and
(F) Include any other provision and authorize any policy that the qualifying municipality determines is necessary or incidental to the establishment and operation of the defined contribution plan. The other provisions may include, but are not limited to, the authorization to contract with a one or more private pension, insurance, annuity, mutual fund or other qualified company or companies to administer the day-to-day operations of the plan and to provide investments.
(c) The right of any person to a benefit provided under a defined contribution plan established by a qualifying municipality pursuant to this section shall not be subjected to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever nor shall any assignment thereof be enforceable in any court with the exception that the benefits or contributions under the plan shall be subject to 'qualified domestic relations orders' as that term is defined in 26 U.S.C. §414 with respect to governmental plans.
(d) The interest earned on any bonds issued under the authority granted in this section is exempt from any tax imposed under the provisions of this code."
And,
By amending the title of the bill to read as follows:
H. B. 3203 - "A Bill to amend and reenact §8-13C-1 and §8-13C-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §8- 13C-14, all relating to the use of proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax; the loss of authority to impose those taxes; authorizing a qualifying municipality, subject to meeting certain requirements, to close their existing pension and relief fund plan for policemen and firemen to those hired after a future date; authorizing a qualifying municipality, subject to meeting certain requirements, to establish a defined contribution plan for policemen and firemen hired on and after the future date; and authorizing policy and authorizing a qualifying municipality, subject to meeting certain requirements, to issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding bonds issued to refund, in whole or in part, bonds issued for that purpose."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 591), and there were--yeas 90, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3203) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3281, Relating to making it a crime to alter, destroy, or tamper with computer equipment containing voter registration information.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §3-9-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9. OFFENSES AND PENALTIES.

§3-9-1. False or fraudulent returns; tampering with, destroying or misdelivering ballots, records, etc.; forgeries; aiding, etc., in offense; penalties.

Every person named and identified in this section, who shall violate any of the provisions of the election laws as herein specified, shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in ~~the penitentiary~~ a state correctional facility for not less than one nor more than ten years:
(a) Any commissioner of election or poll clerk who shall knowingly make or cause to be made, or conspire with others to make, a false return of the result of the votes cast for any candidate at any precinct in an election held pursuant to law; or
(b) Any commissioner of election receiving the ballot of a voter to be deposited in the ballot box at any election precinct, who shall put another ballot in the box instead of the one received by him; or
(c) Any commissioner of election or poll clerk, who knowingly shall count and string a ballot not taken from the ballot box, in lieu of one taken, or which should have been taken from such ballot box; or
(d) Any commissioner of a county court, whether acting as such or ex officio as a member of a board of canvassers or otherwise, clerk of a county court, or other person, who shall, except as authorized by law, abstract any ballot from any package of ballots voted, sealed or returned from any election precinct, either before or after they are filed with the clerk of the county court, or who shall in any manner change any such ballot from what it was when voted by the voter, or who shall put another ballot in such package in the place of the one so abstracted therefrom; or
(e) Any commissioner of a county court, whether acting as such commissioner or ex officio as a member of a board of canvassers, or otherwise, who shall knowingly make and enter of record, or in any way aid, counsel, or advise the same to be done, or permit the same to be done without objection on his part, any false or fraudulent statement of the result of any election held within the county; or
(f) Any person who shall falsely make, or fraudulently deface, or fraudulently destroy, any certificate of nomination, or any part thereof, or file any certificate of nomination, knowing the same, or any part thereof, to be falsely made, or suppress any certificate of nomination which has been duly filed, or any part thereof; or erase, deface, or change in any manner, any election record, or any ballot, poll book, tally sheet or certificate of election, deposited with either of the clerks of the county or circuit courts; or conspire with another to do any of said acts; or induce or attempt to induce any other persons to do any of said acts; or
(g) Any person who shall aid, assist, counsel or advise in the commission of any of the offenses above specified, whether or not said acts, or any of them be committed or attempted to be committed; or
(h) Any person, who, without the assent of another, shall sign the name of such other person to any certificate, affidavit, ballot, report, statement or writing, required under any provision of this chapter, with intent to mislead and deceive; or who shall use or employ any certificate, affidavit, ballot, report, statement or writing to which the name of a person has been signed without the authority of such person, knowing that such name has been so signed with intent to mislead or deceive; or
(i) Any clerk of a court, poll clerk, member of the board of ballot commissioners, commissioner of election, or messenger intrusted with the custody of the ballots, who shall open unlawfully any of the packages in which the ballots are contained, or permit any of them to be opened, or destroy any of such ballots, or permit them to be destroyed, or give, or deliver any such packages or ballots to any person not lawfully entitled to receive them, as in this chapter provided, or conspire to procure, or in any way aid, abet, or connive at any robbery, loss or unlawful destruction of any such ballots or packages; or
(j) Any person not duly authorized by law who shall, during the progress of any election in this state, or after the closing of the polls and before the ballots are counted and the results ascertained, or within twelve months thereafter, open without breaking, or break open or violate, the seals or locks of any ballot box, paper, envelope or bag, in which ballots have been deposited at or after such election, or who shall obtain possession of such ballot box, paper, envelope or bag containing such ballots, and cancel, withhold, or destroy such ballots, or who shall fraudulently or forcibly add to or diminish the number of ballots legally deposited therein, or who shall fraudulently make any erasure or alteration of any kind, upon any tally sheet, poll book, list of voters, or election returns, deposited therein; or
(k) Any person who knowingly, willfully and without authorization from the Secretary of State, a county clerk or municipal clerk directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to tamper with, delete, alter, damage or destroy any computer or computer network that contains voter registration files, records or data or who knowingly introduces, directly or indirectly, a computer contaminant into any computer, computer program or computer network that contains voter registration files, records or data; or
(l) Any person who knowingly, directly or indirectly, accesses, attempts to access, or causes to be accessed any voter registration files, records or data stored on or in a computer owned by the Secretary of State, a county commission or municipality, without authorization; or
(m) Any person employed by the Secretary of State, a county commission or a municipality who knowingly, directly or indirectly accesses, attempts to access or causes to be accessed any voter registration files, records or data stored on or in a computer in an unauthorized manner, in excess of his or her authorization or for unauthorized use or purpose."

And,

By amending the title of the bill to read as follows:
H. B. 3281 - "A Bill to amend and reenact §3-9-1 of the Code of West Virginia, 1931, as amended, relating to the crime of altering, destroying, or tampering with computer equipment containing voter registration information; accessing or attempting to access confidential voter registration information; and penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 592), and there were--yeas 91, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Crosier, Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3281) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3356, Powers and duties of solid waste management board.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section twenty-six, line four, by striking out the word "authority" and inserting in lieu thereof the word "authorities".
On page three, section twenty-six, line nine, by striking out the words "operates a" and inserting in lieu thereof the word "operate".
On page three, section twenty-six, line ten, by striking out the word "facility" and inserting in lieu thereof the word "facilities".
On pages three through eight, by striking out all of sections three and four.
On page eight, section nine-a, line eight, after the word "county" by inserting the words "and regional solid waste authority".
On page eight, section nine-a, lines nine and ten, by striking out the words "and regional solid waste authority that operates a commercial solid waste facility".
And,
On page two, by amending the enacting section to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §22C-3-26; and that said code be further amended by adding thereto a new section, designated §22C-4-9a, all to read as follows" and a colon.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 593), and there were--yeas 91, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3356) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 3361, Relating to the West Virginia Sunset Law.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section four, line fifteen, after the word "Board" and the semicolon, by inserting the words "Public Land Corporation" and the semicolon.
On page three, section four, line thirty, after the word "Compensation" by changing the semicolon to a period and striking out the words "and Public Land Corporation" and the period.
On page seven, section five, line fifty-four, after the word "Board" and the semicolon by inserting the words "West Virginia Prosecuting Attorneys Institute" and a semicolon.
On page seven, section five, lines sixty-two and sixty-three, by striking out the words "West Virginia Prosecuting Attorneys Institute" and the semicolon.
On page ten, section five-b, lines nineteen and twenty, by striking out the words "Board of Examiners of Psychologists" and the semicolon.
On page eleven, section five-b, after line thirty-eight, by inserting a new subsection, designated subsection (6), to read as follows:
"(6) On the first day of July, two thousand twelve: Board of Examiners of Psychologists."
And,
By renumbering the remaining subdivisions.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 594), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3361) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 595), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3361) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 62, Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge",
H. C. R. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the southern entrance to Wellsburg in Brooke County, the "John G. Chernenko Bridge",
H. C. R. 90, Requesting the Joint Committee on Government and Finance to conduct a study on oral health in West Virginia,
H. C. R. 93, Providing for the issuance of not to exceed three hundred seventy-five million dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996",
H. C. R. 98, Requesting the Joint Committee on Government and Finance study the development of a coordinated deployment and operation of broadband Internet access throughout the state,
H. C. R. 100, Expressing support of the College Summit program and requesting the Joint Committee on Government and Finance to make a study on finding funding to help College Summit in its goal to assist West Virginia's students in furthering their education,
And reports the same back with the recommendation that they each be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and future highway financing,
And reports the same back, with amendment, with the recommendation that it be adopted, as amended.
Chairman Beane, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration:
S. B. 159, Creating Consolidated Local Government Act,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the 2004 West Virginia Youth Services Annual Report and Comprehensive Plan Update for the West Virginia Department of Health and Human Resource, in accordance with section seven, article five-b, chapter forty-nine of the Code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on April 6, 2005, he approved H. B. 2129, Com. Sub. for H. B. 2764, S. B. 153 and S. B. 229.
Mr. Speaker, Mr. Kiss, laid before the House communications from His Excellency, the Governor, which were read by the Clerk as follows:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston 25305
April 8, 2005
EXECUTIVE MESSAGE NO. 2
2005 REGULAR SESSION
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
In accordance with the provisions of Section 11, Article 7 of the Constitution of the State of West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I hereby report that I granted no pardons or reprieves, nor commuted punishment to any person, and remitted no fines or penalties during the period of January 17, 2005 through April 8, 2005.
Very truly yours,
Joe Manchin III
Governor.
April 8, 2005
EXECUTIVE MESSAGE NO. 3
2005 REGULAR SESSION
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that for the period January 17, 2005 through April 8, 2005, the following 2003-2004 annual reports have been received in the Office of the Governor:
1.Adjutant General, West Virginia
2.Coal Heritage Highway Authority and National Coal Heritage Area Authority
3.Community and Technical College, West Virginia State
4.Consolidated Public Retirement Board, West Virginia
5.Economic Development Authority, West Virginia
6.Employee Suggestion Award Board, West Virginia Legislature
7.Equal Employment Opportunity Office, West Virginia
8.Interstate Pest Control Compact
9.Labor, West Virginia Division of
10. Library Commission, West Virginia
11.Literacy, Governor's Council on
12.Medicine, West Virginia Board of, Volumes I and II
13.National and Community Service, West Virginia Commission for
14.Oil and Gas Inspectors' Examining Board, West Virginia
15.Optometry, West Virginia Board of
16.Parole Board, West Virginia
17.Personnel, West Virginia Division of
18.Professional Surveyors, West Virginia Board of
19.Real Estate Appraiser Licensing and Certification Board, West Virginia
20.Real Estate Commission, West Virginia
21.Rehabilitation Services, West Virginia Division of
22.Social Work Examiners, West Virginia Board of
23.State Police, West Virginia
24.Support Enforcement Commission, West Virginia
25.Veterinary Medicine, West Virginia Board of
26.Water Development Authority, West Virginia
Very truly yours,
Joe Manchin III
Governor.
Conference Committee Report Availability
At 9:25 a.m., the Clerk announced the availability in his office, of the report of the Committee of Conference on Com. Sub. for H. B. 2492, Providing a funding mechanism for teen court programs.
Resolutions Introduced
Delegates Proudfoot and Hartman offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 42 -- "Urging the Federal Aviation Administration to maintain the Elkins Automated Flight Service Station as a federal traffic facility properly staffed by government employees."
Whereas, The Elkins Automated Flight Service Station provides pilots with weather and aeronautical data to help them make critical and often life saving decisions; and
Whereas, Whether assisting West Virginia University student pilots, coordinating air ambulance flights to rural communities, relaying data to commercial operators flying passengers and supplies or assisting the military in matters of national security - the Elkins Automated Flight Service Station provides an invaluable service; and
Whereas, The Elkins Automated Flight Service Station is responsible for the continuous monitoring of and daily support of the missions of the Charleston Air Force Base, Martinsburg Air Force Base, Parkersburg Air National Guard, Wheeling Air National Guard, Camp Dawson and Clarksburg National Guard flight operations; and
Whereas, Maintaining the Elkins Automated Flight Service Station with proper staffing levels and equipment is a fundamental necessity in the continuation of these crucial services; and
Whereas, The Federal Aviation Administration (FAA) is primarily responsible for the safety and security of aviation; therefore, be it
Resolved by the West Virginia House of Delegates:
That the Federal Aviation Administration is urged to maintain the Elkins Automated Flight Service Station as a federal air traffic facility properly staffed by government employees; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Clerk of the United States House of Representatives, the Clerk of the United States Senate and the Administrator of the Federal Aviation Administration.
Consent Calendar
Third Reading
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §11A-3-20 and §11A-3-23 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-20. Refund to purchaser of payment made at sheriff's sale where property is subject of an erroneous assessment or is otherwise nonexistent.

If, ~~after~~ by the thirty-first day of December one year after the payment of the amount bid at a sheriff's sale, the purchaser discovers that the lien purchased at ~~such~~ that sale is the subject of an erroneous assessment or is otherwise nonexistent, ~~such~~ the purchaser shall submit the abstract or certificate of an attorney at law that the property is the subject of an erroneous assessment or is otherwise nonexistent. Upon receipt ~~thereof,~~ of the abstract or certificate, the sheriff shall cause the moneys so paid to be refunded. Upon refund, the sheriff shall inform the assessor of the erroneous assessment for the purpose of having the assessor correct ~~said~~ the error. For failure to meet this requirement, the purchaser shall lose all benefits of his or her purchase.

§11A-3-23. Redemption from purchase; receipt; list of redemptions; lien; lien of person redeeming interest of another; record.

(a) After the sale of any tax lien on any real estate pursuant to section five of this article, the owner of, or any other person who was entitled to pay the taxes on, any real estate for which a tax lien thereon was purchased by an individual may redeem at any time before a tax deed is issued for the real estate. In order to redeem, he or she shall pay to the clerk of the county commission the following amounts: (1) An amount equal to the taxes, interest and charges due on the date of the sale, with interest at the rate of one percent per month from the date of sale; (2) all other taxes which have since been paid by the purchaser, his or her heirs or assigns, with interest at the rate of one percent per month from the date of payment; (3) any additional expenses incurred from the first day of ~~January~~ October of the year following the sheriff's sale to the date of redemption for the preparation of the list of those to be served with notice to redeem and any title examination incident thereto, with interest at the rate of one percent per month from the date of payment for reasonable legal expenses incurred for the services of an attorney who has performed an examination of the title to the real estate and rendered a written opinion and certification thereon: Provided, That the amount he or she shall be required to pay, excluding the interest, for the expenses incurred for the preparation of the list of those to be served with notice to redeem required by section nineteen of this article and any title examination performed, shall not exceed ~~two~~ four hundred dollars; and (4) all additional statutory costs paid by the purchaser. Where the clerk has not received from the purchaser satisfactory proof of the expenses incurred in preparing the notice to redeem, and any examination of title incident thereto, in the form of receipts or other evidence of legal expenses incurred as provided in section nineteen of this article, the person redeeming shall pay the clerk the sum of two hundred dollars plus interest at the rate of one percent per month from the first day of ~~January~~ October of the year following the sheriff's sale for disposition by the sheriff pursuant to the provisions of sections ten, twenty-four, twenty-five and thirty-two of this article.
The person redeeming shall be given a receipt for the payment.
(b) Any person who, by reason of the fact that no provision is made for partial redemption of the tax lien on real estate purchased by an individual, is compelled in order to protect himself or herself to redeem the tax lien on all of the real estate when it belongs, in whole or in part, to some other person, shall have a lien on the interest of that other person for the amount paid to redeem the interest. He or she shall lose his or her right to the lien, however, unless within thirty days after payment he or she files with the clerk of the county commission his or her claim in writing against the owner of the interest, together with the receipt provided in this section. The clerk shall docket the claim on the judgment lien docket in his or her office and properly index the claim. The lien may be enforced as other judgment liens are enforced."
Delegate Staton, by unanimous consent, asked that the bill be removed from the Consent Calendar to the House Calendar.
Com. Sub. for S. B. 198, Relating to fire safety standards for bed and breakfast establishments; on third reading, coming up in regular order, was read a third time.
Com. Sub. for S. B. 433, Increasing membership of Environmental Protection Advisory on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.
(a) There is created within the Department of ~~commerce, labor and environmental resources~~ Environmental Protection the Environmental Protection Advisory Council. The Environmental Protection Advisory Council consists of ~~seven~~ eleven members. The ~~director~~ Secretary serves as an ex officio member of the Council and as its Chair. The remaining ~~six~~ ten members are appointed by the Governor. Each member serves for a term of four years and may be reappointed. Members of the Council serving on the effective date of this section shall continue to serve until their terms expire or their successors have been appointed. Of the members of the council first appointed, two shall be appointed for terms ending on the thirtieth day of June, one thousand nine hundred ninety-six, and two each for terms ending one and two years thereafter. Of the four new members of the Council, two shall be appointed for a term ending on the thirtieth day of June, two thousand eight, and two shall be appointed for the term ending the thirtieth day of June, two thousand ten. Vacancies on the Council shall be filled within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the division or their trade associations. Two members shall represent organizations advocating environmental protection. One member shall represent organizations representing local governments. One member shall represent public service districts.
Any future appointments to the Council shall be representative of the following entities. They are:
(1) One member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing manufacturing in this state and one member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing the interests of coal producers in this state;
(2) One member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing farming interests in this state and one member of the Council shall be appointed from a list of three names of registered foresters submitted to the Governor by the largest organization representing the interests of private owners of forest land in this state;
(3) One member of the Council shall be appointed from a list of three names submitted to the Governor by the two largest organizations representing environmental protection organizations; (4) One member of the Council shall be appointed from a list of three names submitted jointly to the Governor by the largest organizations representing counties and municipalities in this state;
(5) One member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing public service districts in this state;
(6) One member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing oil and gas producers in this state;
(7) One member of the Council shall be appointed from a list of three names submitted to the Governor by the largest organization representing coal miners in this state; and
(8) One member of the Council shall be appointed from a list of three names submitted to the Governor by the West Virginia Wildlife Federation. In making subsequent appointments this balance of membership shall be maintained.
(c) Except for state employee and officer members, appointed members shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.
(d) The Council shall meet at least once every quarter ~~and~~ at the call of the Chair or at the request of any four members of the Council in writing signed by the members requesting the meeting, the Chair shall schedule a meeting. At least fifteen days prior to a regularly scheduled meeting, or ten days in advance of a meeting called by the Chair, the Secretary shall provide the members of the Council with an agenda of all matters scheduled for discussion at the meeting and copies of any rules the Secretary intends to propose.
(e) The council shall:
(1) Consult with and advise the Secretary on program and policy development, problem solving and other appropriate subjects;
(2) Identify and define problems associated with the implementation of the policy set forth in section one of this article;
(3) Provide and disseminate to industry and the public early identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between constituency groups;
(5) To the extent possible, strive for consensus on the development of overall environmental policy; ~~and~~
(6) The council may, upon a majority vote of the members, offer suggestions to the secretary for proposed new or amended legislative rules;
(67) Provide an annual report to the joint committee on government and finance on or before the first day of January of each year relating to its findings with regard to the ~~division's~~ Department's performance during the previous year. The report will specifically address the division's performance in accomplishing the ~~nine~~ ten purposes set forth in subsection (b), section one of this article.;and
(8) Appoint technical advisory committees as may be necessary to carry out the provisions of this section.
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 450, Prohibiting compensation of board members from receiving compensation for certain travel days,
S. B. 463, Allowing supplemental assessment on personal property when omitted from record books,
Com. Sub. for S. B. 473, Relating to crime of cyber-shoplifting (Regular) (Amores)
S. B. 585, Allowing disclosure of juvenile records in certain cases,
S. B. 703, Providing consistency in filing procedures for all organization types and cleaning up outdated language,
S. B. 735, Relating to cancellation of motor vehicle agreement,
And,
S. B. 737, Establishing time limit for licensing board to issue final ruling.
Delegate Hrutkay requested to be excused from voting on the passage of Com. Sub. for S. B. 198 under the provisions of House Rule 49.
The Speaker stated that she demonstrated a possible pecuniary interest but was a member of a class of persons possibly to be affected by the passage of the bill and in an abundance of caution, excused the Lady from voting.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bills, the yeas and nays were taken (Roll No. 596), and there were--yeas 94, nays none, absent and not voting 4, excused from voting 1, with the absent and not voting and excused being as follows:
Absent And Not Voting: Armstead, Doyle, Ferrell, Fragale and Ron Thompson.
Excused from Voting: Hrutkay.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. For S. B. 198, Com. Sub. for S. B. 433, Com. Sub. for S. B. 450, S. B. 463, Com. Sub. for S. B. 473, S. B. 585, S. B. 703, S. B. 705, S. B. 735 and S. B. 737) passed.
An amendment to the title of Com. Sub. for S. B. 433, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 433 - "A Bill to amend and reenact §22-1-9 of the Code of West Virginia, 1931, as amended, relating to the Environmental Protection Advisory Council generally; increasing the membership of the Council to eleven members; specifying the Governor's power of appointment from named organizations and entities; making certain procedural changes in Council activities; allowing Council members to offer rule-making suggestions to the Secretary upon majority vote of the members; and authorizing appointment of technical advisory committees which will serve without compensation."
Delegate Staton moved that Com. Sub. for S. B. 433 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 607), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Armstead, Doyle, Ferrell, Fragale, Longstreth and Ron Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 433) takes effect July 1, 2005.
Delegate Staton moved that Com. Sub. for S. B. 450 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 608), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Armstead, Doyle, Ferrell, Fragale and Ron Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 450) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those requiring the same.
Delegate Hrutkay announced that had she been allowed to vote on Roll No. 596 she would have voted "yea" thereon.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished Business.
Special Calendar
Unfinished Business
H. C. R. 88, Requesting the West Virginia Division of Highways to name State Route 25 from Glen Jean to Thurmond in Fayette County the "Jon Dragan Road"; coming up in regular order, as unfinished business, was reported by the Clerk.
The question now being on the adoption of the resolution, Delegate H. White demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 609), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Amores, Blair, Doyle, Ennis, Ferrell, Fragale, Hall, Martin and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 88) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:
H. C. R. 63, Requesting the Joint Committee on Government and Finance study the West Virginia Board of Dental Examiners whether the Board is sufficiently carrying out its purpose,
H. C. R. 102, Requesting the Joint Committee on Government and Finance to conduct a study on the stocking of bass in the Ohio River,
And,
H. C. R. 103, Requesting the Joint Committee on Government and Finance to conduct a study of court appointed counsel and Public Defender Services within West Virginia.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading
Com. Sub. for S. B. 147, Limiting purchase of substances used in production of methamphetamine; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 610), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Ennis, Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 147) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 147 -- "A Bill to amend and reenact §60A-1-101 of the Code of West Virginia, 1931, as amended; to amend and reenact §60A-2-212 of said code; to amend and reenact §60A-3-308 of said code; to amend and reenact §60A-9-4 and §60A-9-5 of said code; and to amend said code by adding thereto a new article designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4, §60A-10-5, §60A-10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11, §60A-10-12, §60A-10-13 and §60A-10-14, all relating to limiting the purchase of substances used in the production of methamphetamine; providing that certain substances containing ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers are Schedule V substances; providing legislative findings; defining terms; limiting access to such substances; providing procedures for purchasing such substances from pharmacists or licensed pharmacy technicians; providing for the registration of every wholesaler, manufacturer or distributor of certain drug products containing such substances; providing for a supplemental list of drug products used in methamphetamine production; adding ephedrine, pseudoephedrine and phenylopropanolamine to controlled substances subject to controlled substances monitoring; requiring medical and dental professionals to report methamphetamine-related injuries; criminalizing exposure of children to methamphetamine production; creating offense of improper storage of anhydrous ammonia; allowing the State Police to leverage grant funds; requiring reporting by the State Police to the Legislative Oversight Commission on Health and Human Resources; and providing penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 194, Relating to Affordable Housing Trust Fund; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 18D. WEST VIRGINIA AFFORDABLE HOUSING TRUST FUND.
§31-18D-5. Housing Trust Fund Board of Directors.
(a) The Affordable Housing Trust Fund has a Board of Directors, which consists of eleven voting members. The members of the Board are responsible for administering the Trust Fund.
(b) The Trust Fund Board of Directors consists of:
(1) The Secretary of the Department of Health and Human Resources, ex officio, or his or her designee;
(2) The Executive Director of the West Virginia Development Office, ex officio, or his or her designee;
(3) The Executive Director of the West Virginia Housing Development Fund, ex officio, or his or her designee;
(4) One member ~~who is chosen from the private directors appointed by the governor to the Board of the West Virginia housing development fund~~ representative of the manufactured housing sales industry, with special consideration of three nominees submitted by the West Virginia Manufactured Housing Association;
(5) One member ~~who is an officer of a corporation or member of a limited liability company, which is currently licensed to do business in West Virginia and is engaged in real estate development~~ representative of the real estate development or real estate sales industry, with special consideration of three nominees submitted by the West Virginia Association of Realtors;
(6) ~~Three members who are executive directors or officers of not-for-profit organizations, which are not affiliated with one another through common management control and which are~~ One member who is an executive director or an officer of a local, community-based not-for-profit organization currently licensed to do business in West Virginia and which ~~have been recognized as~~ is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U. S. C. §501 (c)(3), and are organized and operated exclusively for charitable purposes within the meaning of that section, and in accordance with those purposes, provide housing assistance to low or moderate income citizens of this state;
(7) One member representative of the banking industry;
(8) ~~One citizen member who is representative of the population served by the trust fund; and one~~ One member who is an officer or member of a municipality or county commission, or his or her designee;
(9) One member who is an executive director of a public housing authority operating in a county or municipality in this state;
(10) One member who is an executive director or officer of a statewide not-for-profit organization which has as one of its primary missions the provision of housing assistance to low and moderate income citizens of this state, currently licensed to do business in West Virginia and is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U. S. C. §501 (c)(3), and is organized and operated exclusively for charitable purposes within the meaning of that section; and
(11) One member representative of the homebuilding industry, with special consideration of three nominees submitted by the Homebuilders Association of West Virginia.
(c) ~~Not more than three members, excluding the ex officio members, shall be appointed from any one congressional district.~~ Not more than four of the members, excluding the ex officio members, may belong to the same political party. Except for ~~initial appointments and~~ midterm special appointments made to fill irregular vacancies on the Board, members shall be appointed for terms of three years each. ~~Initial appointments shall consist of three members whose terms expire after two years, three members whose terms expire after three years and two members whose terms expire after four years.~~ Members are eligible for reappointment. However, no member may serve for more than two consecutive full terms. Except for midterm special appointments made to fill irregular vacancies on the Board, appointment terms shall begin on the first day of July of the beginning year. All appointment terms, special and regular, end on the thirtieth day of June of the final year of the term.
(d) All members of the Board except those who serve ex officio shall be appointed by the Governor, with the advice and consent of the Senate.
(e) The Governor may remove any appointed member in case of incompetency, neglect of duty, moral turpitude or malfeasance in office, and the Governor may declare the office vacant and fill the vacancy as provided in other cases of vacancy.
(f) The ~~Governor shall designate one of the initial members as chairperson of the Board. During or after the first meeting of the Board the~~ Board ~~may select a new chairperson and~~ shall annually select its chairperson.
(g) The Board shall meet not less than four times during the fiscal year, and additional meetings may be held upon a call of the chairperson or of a majority of the members. Board members shall be reimbursed for sums necessary to carry out responsibilities of the Board and for reasonable travel expenses to attend Board meetings. The ex officio members may not be reimbursed by the Fund for travel expenses to attend Board meetings.
(h) Six members of the Board is a quorum. No vacancy in the membership of the Board impairs the right of a quorum to exercise all the rights and perform all the duties of the Board. ~~No action may be taken by the Board except upon the affirmative vote of at least six of the members.~~ Action may be taken by the affirmative vote of a majority of members present at a properly noticed and legally convened meeting of the Board.
§31-18D-6. Powers and responsibilities of the Board.
(a) ~~It is the duty of the~~ The Board to shall manage and control the Affordable Housing Trust Fund. In order to carry out the day-to-day management and control of the Trust Fund and effectuate the purposes of this article, the Board may appoint an Executive Director and other staff. The Board shall fix the Executive Director's duties and compensation as well as that of other staff. The Executive Director and other staff serve at the will and pleasure of the Board. The Board may provide for staff payroll and employee benefits in the same manner as the West Virginia Housing Development Fund provides for its employees.
(b) The members of the Board and its officers are not liable personally, either jointly or severally, for any debt or obligation created by the Board.
(c) Members of the Board and its officers and employees shall be provided insurance coverage by the state's Risk and Insurance Management Board to the same extent and in the same manner the coverage is applicable to state government agencies and appointed state officials and employees. The Board may elect to obtain other forms of insurance coverage it considers reasonable for its operations.
(d) The acts of the Board are solely acts of its corporation and are not those of an agent of the state, nor is any debt or obligation of the Board a debt or obligation of the state.
(e) The Board shall:
(1) Develop and implement comprehensive policies and programs for the use of the Trust Fund that ensures the equitable distribution of moneys from the Trust Fund throughout the various geographic areas of this state and between urban and rural areas of this state;
(2) Develop and implement an application and selection system to identify housing sponsors or providers of affordable housing developments or programs that qualify to receive assistance from the Trust Fund for eligible activities;
(3) Provide funds for technical assistance to prospective applicants;
(4) Monitor services, developments, projects or programs receiving assistance from the Trust Fund to ensure that the developments are operated in a manner consistent with this article and in accordance with the representations made to the Trust Fund Board by the sponsors of the services, developments, projects or programs;
(5) Recommend legislation to further its mission of providing housing for low to moderate income citizens of this state;
(6) Provide funding to increase the capacity of nonprofit community housing organizations to serve their communities;
(7) Research and study housing needs and potential solutions to the substandard quality or lack of affordable housing;
(8) Coordinate programs with other entities when doing so fulfills its mission to provide housing to low to moderate income citizens of this state;
(9) Convene public meetings to gather information or receive public comments regarding housing policy or issues;
(10) Distribute available funds pursuant to policies established by it which may permit the establishment of a permanent endowment; and
(11) Serve as a clearinghouse for information regarding housing services and providers within this state.
(f) The West Virginia Housing Development Fund shall provide office space and staff support services for the Executive Director and the Board, shall act as fiscal agent for the Board and, as such, shall provide accounting services for the Board, invest all funds as directed by the Board, service all investment and loan activities of the Board as requested, and shall make the disbursements of all funds as directed by the Board, and establish best practices for recipient organizations, for which the West Virginia Housing Development Fund shall be reasonably compensated, as determined by the Board.
§31-18D-7. Eligible activities; eligible organizations.
(a) The Board shall use the moneys from the Trust Fund to make, or participate in the making of, loans or grants for eligible activities that shall include, but not be limited to:
(1) Providing funds for new construction, rehabilitation, repair or acquisition of housing to assist low or moderate income citizens including land and land improvements;
(2) Providing matching funds for federal housing moneys requiring a local or state match;
(3) Providing funds for administrative costs for housing assistance programs or nonprofit organizations eligible for funding pursuant to subsection (b) of this section if the grants or loans provided will substantially increase the recipient's access to housing funds or increase its capacity to supply affordable housing;
(4) Providing loan guarantees and other financial mechanisms to facilitate the provision of housing products or services;
(5) Providing funds for down payments, closing costs, foreclosure prevention, home ownership counseling and security bonds which facilitate the construction, rehabilitation, repair or acquisition of housing by low to moderate income citizens; ~~and~~
(6) Providing risk underwriting products not provided by private sector entities to facilitate broader accessibility of citizens to other federal or state housing funds or loan programs. The products shall be established using professional risk underwriting standards and separate corporate vehicles may be created and capitalized by the Trust Fund to provide the products; and
(7) Providing start-up funds for initial operational expenses of local government programs to reduce substandard housing or inappropriate land use patterns.
(b) Organizations eligible for funding from the Trust Fund include the following: (1) Local governments; (2) local government housing authorities; (3) nonprofit organizations recognized as exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U. S. C. §501 (c)(3), and which are organized and operated exclusively for charitable purposes within the meaning of that section, and in accordance with those purposes provide assistance to low or moderate income citizens of this state; and (4) regional or statewide housing assistance organizations that have been recognized as exempt under Section 501(c)(3) of the Internal Revenue Code, as amended, and which provide assistance to low and moderate income or low income citizens of this state.
§31-18D-9. Applications and selection criteria.
(a) The Board shall announce by public notice at least two periods annually for prospective applicants to submit proposals, applications or requests for funding. Each period shall be for at least ninety days duration during each calendar year in which funds are available from the trust fund. The Board shall approve or deny properly submitted and completed applications, proposals or requests within sixty days of their receipt.
(b) The Board shall determine whether each person making an application, proposal or request for funding is an eligible entity and approve as many applications, proposals or requests as will effectively use the available moneys in the trust fund less costs required to administer the program. In selecting entities to receive trust fund assistance, the Board shall develop a qualified allocation and selection plan as often as it considers appropriate in order to provide affordable housing and improve the capacity of nonprofit housing entities to supply affordable housing to low and moderate income citizens of this state. The allocation and selection plan for each period shall be available for review of prospective applicants and the general public in sufficient time for prospective applicants to reasonably prepare an application, project proposal or request for funding.
~~(c)~~ (a) No moneys may be expended from the Trust Fund for projects that discriminate against any buyer or renter because of race, religion, sex, familial status or national origin.
~~(d)~~ (b) The Board shall forward to the West Virginia Housing Development Fund for its review and information approved requests, applications and proposals for funding containing information as is necessary to permit the West Virginia Housing Development Fund to carry out its duties under this article."
There being no further amendments, bill was then read a third time and put upon its passage
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 611), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 194) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 194 -- "A Bill to amend and reenact §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Affordable Housing Trust Fund generally; changing the composition of the Board of Directors of the West Virginia Affordable Housing Trust Fund by reducing the number of members appointed representing nonprofit organizations; adding additional members representing real estate, manufactured housing and homebuilding entities; reducing the number of votes necessary for Board action; providing that the West Virginia Housing Development Fund shall establish best practices for recipients of trust fund moneys; permitting trust fund moneys to be used for initial operational expenses of local governmental programs to reduce substandard housing or inappropriate land use patterns; and eliminating certain restrictions on application procedures for trust fund moneys."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 254, Relating to reinsurance intermediaries; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
On motion of Delegate Amores the bill was amended on page eleven, section thee-a, line forty-one, after the word "worthy" by inserting a comma and the following words "as that term may be defined by the Commissioner in legislative rules promulgated pursuant to section twelve of this article" and a comma.
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 612), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Crosier, Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 254) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 348, Clarifying when audits are required of state funds or grants; penalty; on third reading, coming up in regular order, with an amendment pending and with the further right to amend, was reported by the Clerk.
On recommendation of the Committee on Finance, the bill was amended on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.

§12-4-14. Reviews of persons receiving state funds or grants; sworn statements by volunteer fire departments; criminal penalties.

(a) For the purposes of this section:
(1) 'Grantor' means a state spending unit awarding a state grant.
(2) 'Person' includes any corporation, partnership, association, individual or other legal entity. The term 'person' does not include a state spending unit or a local government as defined in section one-a, article nine, chapter six of this code.
(3) 'Review' means an attestation engagement, conducted and prepared by a certified public accountant to test whether state grants were spent as intended. The term 'review' does not mean a full-scope audit or review of the person receiving state funds.
(4)'State grant' means funding provided by a state spending unit to a person upon application for a specific purpose. The term 'state grant' does not include: (A) payments for goods and services purchased by a state spending unit; (B) compensation to state employees and public officials; (C) reimbursements to state employees and public officials for travel or incidental expenses; (D) grants of student aid; (E) government transfer payments; (F) direct benefits provided under state insurance and welfare programs; and (G) retirement benefits. The term 'state grant' does include formula distributions to volunteer and part-volunteer fire departments made pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter.
(b)(1) Any ~~corporation, association,~~ ~~or other organization~~ ~~in West Virginia that is not a local government as defined in section one-a, article nine, chapter six of this code and which~~ person who receives ~~state funds or grants~~ one or more state grants in the amount of fifteen thousand dollars or more in the aggregate in a calendar year shall file ~~an audit~~ with the grantor a review of the disbursement of state grant funds ~~with the Legislative auditor's office~~.
(2) The ~~audit~~ review required by subdivision (1) of this subsection shall be filed within two years of the end of the calendar year in which the disbursement of ~~funds or grants~~ state grant funds by the grantor ~~and~~ was made. The review shall be made by an independent certified public accountant at the cost of the ~~grantee and show~~ person receiving the state grant. The scope of the review is limited to showing that the state grant funds ~~or grants~~ were spent for the purposes intended when the grant was made.
(c)(1) Any person failing to file a required review within the two-year period provided in subdivision (2), subsection (b) of this section for any state grant funds disbursed after the first day of July, two thousand three, is barred from subsequently receiving state grants until the person has filed the review and is otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons failing to file a required review within the required time period provided in subdivision (2), subsection (b) of this section for any state grant disbursed after the first day of July, two thousand three, to the Legislative Auditor for purposes of debarment from receiving state grants.
(d)(1) The state agency administering the ~~funds or grants~~ state grant shall notify the grantee of the reporting requirements set forth in this section. ~~A grantee failing to file a required audit within the two-year time period~~ ~~is barred from subsequently receiving state funds or grants until the grantee has filed the audit and is otherwise in compliance with the provisions of this section.~~
(2) Any state agency administering a state grant shall, in the manner designated by the Legislative Auditor, notify the Legislative Auditor of the amount of funds to be disbursed, the identity of the person authorized to receive the funds and the purpose and nature of the state grant within thirty days of making the state grant or authorizing the disbursement of the funds: Provided, That if the state grant was awarded prior to the effective date of the amendment and reenactment of this section in the year two thousand five, the grantor shall provide the information required by this section within ninety days of said effective date.
(3) All grantors making state grants that would be subject to the review requirements of this section shall, prior to awarding a state grant, take reasonable actions to verify that the person is not barred from receiving state grants pursuant to this section. The verification process shall, at a minimum, include:
(A) A requirement that the person seeking the state grant provide a sworn statement from an authorized representative that the person has filed all reviews for state grants received as required under this section; and
(B) Confirmation from the Legislative Auditor by the grantor that the person has not been identified as one who has failed to file a review under this section: Provided, That such confirmation may be accomplished by accessing the computerized database provided pursuant to subdivision (4) of this subsection.
(4) The Legislative Auditor shall maintain a list identifying persons who have failed to file reviews required by this section. The list may be in the form of a computerized database that may be accessed by state agencies over the Internet.
(e) If any review performed pursuant to the requirements of this section provides evidence of a reportable condition or violation, the grantor shall provide a copy of the review to the Legislative Auditor within thirty days of receipt by the grantor.
(f) The grantor shall maintain copies of reviews required by this section and make the reviews available for public inspection, as well as for use in audits and performance reviews of the grantor.
~~(b)Audits~~ (g) Reviews of state ~~funds or~~ grants ~~under fifteen thousand dollars~~ not required under the provisions of this section may be authorized by the Joint Committee on Government and Finance to be conducted by the Legislative ~~auditor's office~~ Auditor at no cost to the grantee.: ~~Provided,~~ ~~That~~
(h)(1) Volunteer and part-volunteer fire departments may satisfy the ~~audit~~ review requirements of this section by submitting a sworn statement of annual expenditures to the Legislative ~~auditor's office~~ Auditor, ~~along with a filing fee of seventy-five dollars,~~ on or before the fourteenth day of February of each year, ~~if the volunteer fire department elects not to be audited~~. The sworn statement of expenditures shall be signed by the chief or director of the volunteer fire department and shall be made under oath and acknowledged before a notary public. An additional filing fee of twenty-five dollars shall be included with the sworn statement of annual expenditures if the statement is submitted between the fifteenth day of February and the fifteenth day of March. An additional filing fee of fifty dollars shall be included with the sworn statement of annual expenditures if the statement is submitted between the sixteenth day of March and the fifteenth day of April.
(2) If the sworn statement is not submitted on or before the fifteenth day of ~~April~~ May, unless the time period is extended by the Legislative Auditor, the ~~volunteer fire department shall file an audit~~ ~~of the disbursement of funds, made by an independent certified public accountant, with~~ ~~the Legislative auditor's office~~ ~~no later than the first day of July. The audit~~ ~~shall be made at the cost of the volunteer fire department.~~ Legislative Auditor may conduct a review of the volunteer or part- volunteer fire department.
(3) If the ~~audit made by the independent certified public accountant~~ sworn statement of annual expenditures is not filed with the Legislative Auditor by the first day of July, unless the time period is extended by the Legislative Auditor, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of ~~one thousand dollars from~~ any amount that would otherwise be distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter ~~and pay the amount withheld to the fund from which it was distributed to be redistributed the following year pursuant to the applicable provisions of those sections~~ until the review is complete. Moneys withheld pursuant to this subdivision are to be deposited in the special revenue account created in subdivision (4) of this subsection and the Treasurer.
~~If the volunteer fire department does not timely file a sworn statement of annual expenditures or an audit~~ ~~of the disbursement of funds, made by an independent certified public accountant, with the Legislative auditor's office~~ for three consecutive years, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of any amount that would otherwise be distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter and pay the amount withheld to the fund from which it was distributed to be ~~redistributed the following year pursuant to the applicable provisions of those sections.~~
~~(c)~~(4) The ~~office of the~~ Legislative Auditor may assign an employee or employees to perform ~~audits~~ reviews at the direction of the Legislative Auditor of the disbursement of state grant funds ~~or grants~~ to volunteer fire departments. The volunteer fire department shall cooperate with the Legislative Auditor, the Legislative Auditor's employees and the State Auditor in performing their duties under this section. If the Legislative Auditor determines a volunteer fire department is not cooperating, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of any amount that would otherwise be distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter until the Legislative Auditor informs the Treasurer that the fire department has cooperated as required by this section. The State Treasurer shall pay the amount withheld into a special revenue account hereby created in the State Treasury and designated the 'Volunteer Fire Department Audit Account'. If, after one year from payment of the amount withheld into the special revenue account, the Legislative Auditor informs the State Treasurer of continued noncooperation by the fire department, the State Treasurer shall pay the amount withheld to the fund from which it was distributed to be redistributed the following year pursuant to the applicable provisions of those sections.
~~(d)~~ Filing fees paid by volunteer fire departments pursuant to this section shall be paid into a special revenue account created in the State Treasury known as the Special Legislative Audit Fund. Expenditures from the fund are authorized to be made by the Legislative auditor's office ~~solely for the purposes of payment of costs associated with the audits~~ ~~conducted pursuant to this section.~~ Any person who files a fraudulent sworn statement of expenditures under this section is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.
~~(e)~~ (5) Whenever the State Auditor performs an audit of a volunteer fire department for any purpose the Auditor shall also conduct an audit of other state funds received by the fire department pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter. The Auditor shall send a copy of any such audit to the Legislative Auditor. The Legislative Auditor may accept an audit performed by the Auditor in lieu of performing ~~an audit~~ a review under this section.
~~(f)~~ (i) Any ~~audit~~ review submitted pursuant to the provisions of this section may be filed electronically in accordance with the provisions of article one, chapter thirty-nine-a of this code.
(j) Any person who files a fraudulent sworn statement of expenditures under subsection (g), a fraudulent sworn statement under subsection (d), or a fraudulent review under this section is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 613), and there were--yeas 89, nays 9, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Border, Duke, Ellem, Frich, Hamilton, Louisos, Schoen, Sobonya and Stevens.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 348) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 348 - "A Bill to amend and reenact §12-4-14 of the Code of West Virginia, 1931, as amended, relating to persons who receive state grants; providing definitions; clarifying when reviews of state grants are required; providing consequences for not complying with review requirements; providing the withholding of state grants or funds; providing for the debarment from future state grants under certain circumstances; providing state agencies who administer grants additional duties under certain circumstances; providing additional duties providing criminal penalties."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 614), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale, Houston and Marshall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 348) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 419, Creating Local Government Flexibility Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 615), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane, Spencer and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 419) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 616), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Crosier, Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 419) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 421, Relating to apportionment of damages in court actions involving tortious conduct in certain cases; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
On recommendation of the Committee on the Judiciary the bill was amended on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof, the following language:
"ARTICLE 7. ACTIONS FOR INJURIES.
|55-7-23. Apportionment of damages. (a) In any cause of action involving the tortious conduct of more than one defendant, the trial court shall:
(1) Instruct the jury to determine, or, if there is no jury, find, the total amount of damages sustained by the claimant and the proportionate fault of each of the parties in the litigation at the time the verdict is rendered, enter judgment against each defendant found to be liable on the basis of the rules of joint and several liability, and divide the damage allocation between actual, economic damages and non-economic damages. All defendants shall be jointly and several liable for all actual, economic damages.
(2) For non-economic damages, judgment against each defendant found to be liable on the basis of the rules of joint and several liability, except that if any defendant is thirty-five percent or less at fault, then that defendant's liability shall be several and not joint and he or she shall be liable only for the non-economic damages attributable to him or her, except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this section, the rules of joint and several liability all damages shall apply to:
(1) Any party who acted with the intention of inflicting injury or damage;
(2) Any party who acted in concert with another person as part of a common plan or design resulting in harm;
(3) Any party who negligently or willfully caused the unlawful emission, disposal or spillage of a toxic or hazardous substance;
(4) Any party strictly liable for the manufacture and sale of a defective product; or
(5) Ant party who negligently, unlawfully or recklessly sold or served alcohol.
(c) Notwithstanding subdivision (2), subsection (a) of this section, if a claimant through good faith efforts is unable to collect from a liable defendant, the claimant may, not later than six months after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later, move for reallocation of any uncollectible amount of damages among the other parties in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall determine whether all or part of a defendant's proportionate share of the verdict for non-economic damages is uncollectible from that defendant and shall reallocate such uncollectible amount among the other parties in the litigation at the time the verdict is rendered, including a claimant at fault according to their percentages of fault: Provided, That the court shall not reallocate to any defendant an uncollectible amount of non-economic damages greater than that defendant's percentage of fault multiplied by such uncollectible amount.
(2) If such a motion is filed, the parties may conduct discovery on the issue of collectability prior to a hearing on such motion.
(3) Any order regarding such motion shall be entered within one hundred twenty days after the date of filing such a motion.
(4) A defendant's share of the obligation for non-economic damages to a claimant may not be increased by reason of reallocation under this subsection if:
(A) The percentage of fault of that defendant is equal to or less than the claimant's percentage of fault; or
(B) The percentage of fault of that defendant is seven percent or less.
(5) A party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.
(6) If any defendant's share of the obligation for non-economic damages to a claimant is not increased by reason of the application of subdivision (4) of this subsection, the amount of that defendant's share of the reallocation shall be considered uncollectible and shall be reallocated among all other parties who are not subject to subdivision four of this subsection, including the claimant, in the same manner as otherwise provided this subsection.
(d) Nothing in this section may be construed to affect, impair or abrogate any right of indemnity or contribution arising out of any contract or agreement or any right of indemnity otherwise provided by law.
(e) Nothing in this section creates or recognizes, either explicitly or impliedly, any new or different cause of action not otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair or abrogate the provisions of section seven, article twelve-a, chapter twenty-nine of this code or section nine, article seven-b of this chapter.
(g) This section applies only to causes of action that accrue on or after the first day of July, two thousand five."
Delegates Frich and Trump requested the Clerk to record them as voting "Nay" on the adoption of the foregoing amendment.
The bill was then read a third time.
Delegate Schoen requested to be excused from voting on the passage of S. B. 421 under the provisions of House Rule 49.
The Speaker then excused the Lady from voting.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 617), and there were--yeas 97, nays none, absent and not voting 2, excused from voting 1, with the absent and not voting and excused being as follows:
Absent And Not Voting: Ferrell and Fragale.
Excused from Voting: Schoen
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 421) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 421 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-23, relating to the apportionment of certain damages in court actions involving the tortious conduct of more than one person; allowing for several liability for certain defendants for non-economic damages; allowing for several liability subject to reallocation for certain defendants; providing procedures for determining allocation; and providing for joint and several liability for defendants that are found to be more than thirty-five percent at fault in certain conditions."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 428, Relating to Rehabilitation Environmental Action Plan; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 514, Increasing salaries of certain state officials, justices, circuit judges and family court judges; on third reading, coming up in regular order, with right to amend, was reported by the Clerk.
On motion of Delegates Tabb, Wysong, Brown, Beane, Amores, Hunt, Walters, Rick Thompson, Perdue, Browning, Williams, Paxton, Marshall, Houston, Longstreth, Eldridge, Butcher, Hrutkay, Barker, Boggs, G. White, Staton and Ennis the bill was amended on page four, following line forty-five, by inserting a new section to read as follows:
"CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.
(a) The Legislature finds and declares that:
(1) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate the equal protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate section thirty-nine, article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational manner by which magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less than eight thousand four hundred in population and the second tier for magistrates serving eight thousand four hundred or more in population is rational and equitable given current statistical information relating to population and caseload; and
(5) That all magistrates who fall under the same tier should be compensated equally.
(b) The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after the first day of July, two thousand three, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of forty thousand dollars: Provided, however, That on and after the first day of July, two thousand five, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of forty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of fifty thousand dollars.
(c) For the purpose of determining the population served by each magistrate, the number of magistrates authorized for each county shall be divided into the population of each county. For the purpose of this article, the population of each county is the population as determined by the last preceding decennial census taken under the authority of the United States government."
On page six, section six, line ten, following the words "annual salary of" by striking out the words "seventy-five" and inserting in lieu thereof the words "eighty-two".
And,
On page two, by amending the enacting section to read as follows:
"That §6-7-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §50-1-3 of said code be amended and reenacted; that §51-1-10a of said code be amended and reenacted; that §51-2-13 of said code be amended and reenacted; and that §51-2A-6 of said code be amended and reenacted, all to read as follows" and a colon.
Delegate Cann moved to amend the bill by striking everything after the enacting clause and inserting in lieu thereof the following:
"That §6-7-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §50-1-3 of said code be amended and reenacted; that §51-1-10a of said code be amended and reenacted; that §51-2-13 of said code be amended and reenacted; and that §51-2A-6 of said code be amended and reenacted, all to read as follows:

CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.

ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2. Salaries of certain state officers.
~~(a) The salaries for each of the state constitutional officers are as follows:~~
~~(1) The salary of the Governor is ninety thousand dollars per year;~~
~~(2) The salary of the Attorney General is seventy-five thousand dollars per year;~~
~~(3) The salary of the Auditor is seventy thousand dollars per year;~~
~~(4) The salary of the Secretary of State is sixty-five thousand dollars per year;~~
~~(5) The salary of the Commissioner of Agriculture is seventy thousand dollars per year; and~~
~~(6) The salary of the State Treasurer is seventy thousand dollars per year.~~
~~(b)~~ (a) Beginning in the calendar year two thousand five, and for each calendar year thereafter, salaries for each of the state constitutional officers shall be as follows:
(1) The salary of the Governor shall be ninety-five thousand dollars per year;
(2) The salary of the Attorney General shall be eighty thousand dollars per year;
(3) The salary of the Auditor shall be seventy-five thousand dollars per year;
(4) The salary of the Secretary of State shall be seventy thousand dollars per year;
(5) The salary of the Commissioner of Agriculture shall be seventy-five thousand dollars per year; and
(6) The salary of the State Treasurer shall be seventy-five thousand dollars per year.
(b) Notwithstanding the provisions of subsection (a) of this section, beginning in the calendar year two thousand nine, and for each calendar year thereafter, salaries for each of the state constitutional officers shall be as follows:
(1) The salary of the Governor shall be one hundred fifty thousand dollars per year;
(2) The salary of the Attorney General shall be one hundred five thousand dollars per year;
(3) The salary of the Auditor shall be ninety-five thousand dollars per year;
(4) The salary of the Secretary of State shall be ninety-five thousand dollars per year;
(5) The salary of the Commissioner of Agriculture shall be ninety-five thousand dollars per year; and
(6) The salary of the State Treasurer shall be ninety-five thousand dollars per year.
"CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.
~~(a) The Legislature finds and declares that:~~
(1) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate the equal protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate section thirty-nine, article VI of the Constitution of West Virginia;
~~(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational manner by which magistrates should be compensated for work performed;~~
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less than eight thousand four hundred in population and the second tier for magistrates serving eight thousand four hundred or more in population is rational and equitable given current statistical information relating to population and caseload; and
~~(5) That all magistrates who fall under the same tier should be compensated equally.~~
~~(b)~~ The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after the first day of July, two thousand three, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of forty thousand dollars: Provided, however, That beginning the first day of July, two thousand five, the annual salary of all magistrates shall be forty-five thousand dollars.
(c) For the purpose of determining the population served by each magistrate, the number of magistrates authorized for each county shall be divided into the population of each county. For the purpose of this article, the population of each county is the population as determined by the last preceding decennial census taken under the authority of the United States government."
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-10a. Salary of justices.
The salary of each of the Justices of the Supreme Court of Appeals shall be ~~seventy-two~~ ninety-five thousand dollars per year: Provided, That beginning the first day of ~~January~~ July, ~~one thousand nine hundred ninety-five~~ two thousand five, the salary of each of the Justices of the Supreme Court shall be ~~eighty-five~~ one hundred ten thousand dollars per year. ~~Provided, however,~~ ~~That beginning the first day of July, one thousand nine hundred ninety-nine, the salary of each of the justices of the supreme court shall be ninety-five thousand dollars per year.~~

ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.

§51-2-13. Salaries of judges of circuit courts.
The salaries of the judges of the various circuit courts shall be paid solely out of the State Treasury. No county, county commission, board of commissioners or other political subdivision shall supplement or add to such salaries.
The annual salary of all circuit judges shall be ~~sixty-five~~ ninety thousand dollars per year: Provided, That beginning the first day of ~~January~~ July, ~~one thousand nine hundred ninety-five~~ two thousand five, the annual salary of all circuit judges shall be ~~eighty~~ one hundred thousand dollars per year. ~~Provided, however,~~ ~~That beginning the first day of July, one thousand nine hundred ninety- nine, the annual salary of all circuit judges shall be ninety thousand dollars per year.~~
ARTICLE 2A. FAMILY COURTS.
§51-2A-6. Compensation and expenses of family court judges and their staffs.
(a) Until the thirty-first day of December, two thousand two, a family court judge is entitled to receive as compensation for his or her services an annual salary of sixty thousand dollars. Beginning the first day of January, two thousand three, A family court judge is entitled to receive as compensation for his or her services an annual salary of sixty-two thousand five hundred dollars: Provided, That beginning the first day of July, two thousand five, a family court judge is entitled to receive as compensation for his or her services an annual salary of sixty-seven thousand five hundred dollars.
(b) The secretary-clerk of the family court judge is appointed by the family court judge and serves at his or her will and pleasure. The secretary-clerk of the family court judge is entitled to receive an annual salary of twenty-five thousand three hundred thirty-two dollars. In addition, any person employed as a secretary-clerk to a family ~~law master~~ court judge on the effective date of the enactment of this section during the sixth extraordinary session of the Legislature in the year two thousand one who is receiving an additional five hundred dollars per year up to ten years of a certain period of prior employment under the provisions of the prior enactment of section eight of this article during the second extraordinary session of the Legislature in the year one thousand nine hundred ninety-nine shall continue to receive such additional amount. Further, the secretary-clerk will receive such percentage or proportional salary increases as may be provided ~~for~~ by general law for other public employees and is entitled to receive the annual incremental salary increase as provided ~~for~~ in article five, chapter five of this code.
(c) The family court judge may employ not more than one family case coordinator who serves at his or her will and pleasure. The annual salary of the family case coordinator of the family court judge shall be established by the Administrative Director of the Supreme Court of Appeals but may not exceed thirty-six thousand sixty dollars. The family case coordinator will receive such percentage or proportional salary increases as may be provided ~~for~~ by general law for other public employees and is entitled to receive the annual incremental salary increase as provided ~~for~~ in article five, chapter five of this code.
(d) The sheriff or his or her designated deputy shall serve as a bailiff for a family court judge. The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is available when a family court judge determines the same is necessary for the orderly and efficient conduct of the business of the family court.
(e) Disbursement of salaries for family court judges and members of their staffs are made by or pursuant to the order of the Director of the Administrative Office of the Supreme Court of Appeals.
(f) Family court judges and members of their staffs are allowed their actual and necessary expenses incurred in the performance of their duties. The expenses and compensation will be determined and paid by the Director of the Administrative Office of the Supreme Court of Appeals under such guidelines as he or she may prescribe, as approved by the Supreme Court of Appeals.
(g) Notwithstanding any other provision of law, family court judges are not eligible to participate in the retirement system for judges under the provisions of article nine of this chapter."
The Speaker put the question on the adoption of the foregoing amendment, and Delegate Cann requested a division of the House thereon.
Whereupon,
The House then divided.
Members rising in favor of the amendment - 41
Member rising in opposition to the amendment - 57
Less than a majority of the members having arisen in favor, the Speaker declared the amendment rejected.
Delegates Blair and G. White moved to amend the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lien thereof the provisions of H. B. 3004.
Delegate Mann arose to a point of order as to the germaneness of the amendment.
The Speaker replied that, upon examination, the amendment sought to include State Police in the bill which dealt solely with salaries of constitutional officers and members of the judicial branch of government and ruled the amendment not germane to the fundamental purpose of the bill.
The bill was then read a third time.
Delegate Overington requested to be excused from voting on the passage of the bill under the provisions of House Rule 49, stating that his wife was a magistrate who would receive a salary increase under the provisions of the bill.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
Delegate Shoen requested to be excused from voting on the passage of the bill under the provisions of House Rule 49, stating that her brother serves as a circuit judge and would receive a salary increase under the provisions of the bill.
The Speaker refused to excuse the Lady from voting, stating that she was a member of a class of persons possibly to be affected by the passage of the bill and that she demonstrated no direct personal or pecuniary interest therein.
These rulings will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 618), and there were--yeas 67, nays 29, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Cann, Carmichael, Doyle, Duke, Evans, Frich, Hamilton, Hartman, Hatfield, Iaquinta, Lane, Leggett, Louisos, Mahan, Poling, Porter, Rowan, Schadler, Spencer, Stevens,, Sumner, Susman, Tabb, Tansill and Wysong.
Absent And Not Voting: Ferrell, Fragale, Overington and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 514) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 514 -- "A Bill to amend and reenact §6-7-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §50-1-3 of said code; to amend and reenact §51-1- 10a of said code; to amend and reenact §51-2-13 of said code; and to amend and reenact §51-2A-6 of said code, all relating generally to the salaries of the Governor, Attorney General, State Treasurer, State Auditor, Commissioner of Agriculture, Secretary of State, Supreme Court Justices, judges of circuit courts, family court judges and magistrates; and effective dates."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 619), and there were--yeas 82, nays 14, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Border, Duke, Evans, Frich, Hamilton, Louisos, Poling, Porter, Rowan, Schadler, Stevens, Sumner, Tabb and Wysong.
Absent And Not Voting: Ferrell, Fragale, Overington and Schoen.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 514) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 521, Requiring study on flood and general property insurance for State Board of Education; was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 620), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Evans.
Absent And Not Voting: Ferrell, Fragale and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 521) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 524, Transferring centralized accounting system from Department of Administration to Auditor's Office; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §5A-2-34, to read as follows:
ARTICLE 2. FINANCE DIVISION.
§5A-2-34. Study of centralized accounting system.
(a) The Legislature finds an examination of administration of the State's centralized accounting system is warranted to determine whether improvements are necessary to obtain optimal function and economical operation of the system, including, but not limited to whether a transfer of responsibility for administration the system is warranted or indicated to reach those ends. It is therefore the intent of the Legislature that appropriate public officials conduct a study of the centralized accounting system and provide the results of the study and any recommendations indicated for the improvement of the system to the Legislature for its consideration.
(b) The Secretary of the Department of Administration, the Secretary of the Department of Revenue, the Secretary of the Department of Health and Human Resources, the Secretary of the Department of Transportation, the West Virginia Higher Education Policy Commission, the State Treasurer and the Auditor of the State shall conduct a study of the centralized accounting system for the purposes specified in subsection (a) of this section and for such other related purposes as they may agree are advisable. The study shall include the examination of the centralized accounting system by an independent consultant agreed upon by the Secretary of the Department of Administration and the Secretary of the Department of Revenue after consultation with the remainder of the public officials designated in this section to conduct the study. A report of the study and any resulting recommendations made by the public officials designated by this section to conduct the study shall be submitted to the Joint Committee on Government and Finance on or before the first day of December, two thousand five, and shall include the written report and any recommendations of the independent consultant."
There being no further amendments, bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 621), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 524) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 524 -- "A Bill amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5A-2-34, relating to requiring a study of the centralized accounting system of the State to determine whether improvements are necessary to obtain optimal function and economical operation of the system, including, but not limited to whether a transfer of responsibility for administration the system is warranted or indicated to reach those ends, and for such other related purposes as the Secretary of the Department of Administration, the Secretary of the Department of Revenue, the Secretary of the Department of Health and Human Resources, the Secretary of the Department of Transportation, the West Virginia Higher Education Policy Commission, the State Treasurer and the Auditor of the State may agree are advisable."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 622), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 524) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 558 , Relating to management and investment of public funds; coming up in regular order, as unfinished business, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 587, Relating to appointment of counsel in abuse and neglect cases; was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 623), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 587) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 603, Relating to higher education; on third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Campbell, and by unanimous consent, further consideration of the bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 661, Relating to juvenile proceedings and multidisciplinary teams; was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 624), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 661) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 661 -- "A Bill to amend and reenact §49-5-13a and §49-5-20 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-5D-3 of said code, all relating to juvenile proceedings and multidisciplinary teams; requiring the Division of Juvenile Services to establish a multidisciplinary team treatment planning process for certain juveniles in its custody; requiring multidisciplinary team to be convened and directed by the Division of Juvenile Services for juveniles committed to its custody by the court for examination and diagnosis; specifying members of the multidisciplinary team; requiring multidisciplinary team to be convened for juveniles prior to discharge from a juvenile correctional facility or mental health facility; and authorizing those who convene a multidisciplinary team meeting to obtain an order of the circuit court setting a hearing and compelling attendance."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 625), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 661) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 669, Transferring certain election duties from circuit clerk to clerk of county commission; on third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed until the completion of all items remaining on the calendar.
S. B. 728, Relating to disposition of state surplus property; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
On recommendation of the Committee on Finance the bill was amended on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 3. PURCHASING DIVISION.
§5A-3-45. Disposition of surplus state property; semiannual report; application of proceeds from sale.

(a) The state agency ~~shall have~~ for surplus property has the exclusive power and authority to make disposition of commodities or expendable commodities now owned or in the future acquired by the state when ~~any such~~ the commodities are or become obsolete or unusable or are not being used or should be replaced.
(b) The agency shall determine what commodities or expendable commodities should be disposed of and ~~shall~~ make ~~such~~ disposition in the manner which will be most advantageous to the state. ~~either by~~ The disposition may include:
(1) Transferring the particular commodities or expendable commodities between departments; by
(2) Selling ~~such~~ the commodities to county commissions, county boards of education, municipalities, public service districts, county building commissions, airport authorities, parks and recreation commissions, nonprofit domestic corporations qualified as tax exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, ~~and~~ or volunteer fire departments in this state when ~~such~~ the volunteer fire departments have been held exempt from taxation under Section 501(c) of the ~~United States~~ Internal Revenue Code; by
(3) Trading in ~~such~~ the commodities as a part payment on the purchase of new commodities; ~~or by sale thereof~~
(4) Cannibalizing the commodities pursuant to procedures established under subsection (g) of this section;
(5) Properly disposing of the commodities as waste; or
(6) Selling the commodities to the highest bidder by means of public auctions or sealed bids, after having first advertised the time, terms and place of ~~such~~ the sale as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. ~~and~~ The publication area for ~~such~~ the publication ~~shall be~~ is the county ~~wherein~~ in which the sale is to be conducted. The sale may also be advertised in ~~such~~ other advertising media as that the agency ~~may deem~~ considers advisable. The agency may sell to the highest bidder or to any one or more of the highest bidders, if there is more than one, or, if the best interest of the state will be served, reject all bids.
(c) Upon the transfer of commodities or expendable commodities between departments, or upon the sale ~~thereof~~ of commodities or expendable commodities to an eligible organization ~~described above~~, the agency shall set the price to be paid by the receiving eligible organization, with due consideration given to current market prices.
(d) The agency may sell expendable, obsolete or unused motor vehicles owned by the state to an eligible organization, other than volunteer fire departments. In addition, the agency may sell expendable, obsolete or unused motor vehicles owned by the state with a gross weight in excess of four thousand pounds to an eligible volunteer fire department. The agency, with due consideration given to current market prices, shall set the price to be paid by the receiving eligible organization for motor vehicles sold pursuant to this provision: Provided, That the sale price of any motor vehicle sold to an eligible organization ~~shall~~ may not be less than the 'average loan' value, as published in the most recent available eastern edition of the National Automobile Dealer's Association (N. A. D. A.) Official Used Car Guide, if ~~such a~~ the value is available, unless the fair market value of the vehicle is less than the N. A. D. A. 'average loan' value, in which case the vehicle may be sold for less than the 'average loan' value. ~~Such~~ The fair market value ~~must~~ shall be based on a thorough inspection of the vehicle by an employee of the agency who shall consider the mileage of the vehicle and the condition of the body, engine and tires as indicators of its fair market value. If no ~~such~~ fair market value is available, the agency shall set the price to be paid by the receiving eligible organization with due consideration given to current market prices. The duly authorized representative of ~~such~~ the eligible organization, for whom ~~such~~ the motor vehicle or other similar surplus equipment is purchased or otherwise obtained, shall cause ownership and proper title ~~thereto~~ to the motor vehicle to be vested only in the official name of the authorized governing body for whom the purchase or transfer was made. ~~Such~~ The ownership or title, or both, shall remain in the possession of that governing body and be nontransferable for a period of not less than one year from the date of ~~such~~ the purchase or transfer. Resale or transfer of ownership of ~~such~~ the motor vehicle or equipment prior to an elapsed period of one year may be made only by reason of certified unserviceability.
(e) The agency shall report to the Legislative Auditor, semiannually, all sales of commodities or expendable commodities made during the preceding six months to eligible organizations. The report shall include a description of the commodities sold, the price paid by the eligible organization which received the commodities and ~~the report shall show~~ to whom each commodity was sold.
(f) The proceeds of ~~such~~ the sales or transfers shall be deposited in the State Treasury to the credit on a pro rata basis of the fund or funds out of which the purchase of the particular commodities or expendable commodities was made: Provided, That the agency may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property disposed of or sold pursuant to the provisions of this section.
(g)(1) For purposes of this section, 'cannibalization' means the removal of parts from one commodity to use in the creation or repair of another commodity.
(2) The Director of the Purchasing Division shall propose for promulgation legislative rules to establish procedures that permit the cannibalization of a commodity when it is in the best interests of the state. The procedures shall require the approval of the Director prior to the cannibalization of the commodity under such circumstances as the procedures may prescribe.
(3)(A) Under circumstances prescribed by the procedures, state agencies shall be required to submit a form, in writing or electronically, that, at a minimum, elicits the following information for the commodity the agency is requesting to cannibalize:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable and, if so, how well it operates;
(vi) How the agency will dispose of the remaining parts of the commodity; and
(vii) Who will cannibalize the commodity and how the person is qualified to remove and reinstall the parts.
(B) If the agency has immediate plans to use the cannibalized parts, the form shall elicit the following information for the commodity or commodities that will receive the cannibalized part or parts:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable;
(vi) Whether the part restores the commodity to an operable condition; and
(vii) The cost of the parts and labor to restore the commodity to an operable condition without cannibalization.
(C) If the agency intends to retain the cannibalized parts for future use, it shall provide information justifying its request.
(D) The procedures shall provide for the disposal of the residual components of cannibalized property.
(h)(1) The Director of the Purchasing Division shall propose for promulgation legislative rules to establish procedures that allow state agencies to dispose of commodities in a landfill, or by other lawful means of waste disposal, if the value of the commodity is less than the benefit that may be realized by the state by disposing of the commodity using another method authorized in this section. The procedures shall specify circumstances where the state agency for surplus property shall inspect the condition of the commodity prior to authorizing the disposal and those circumstances when the inspection is not necessary prior to the authorization.
(2) Whenever a state agency requests permission to dispose of a commodity in a landfill, or by other lawful means of waste disposal, the state agency for surplus property has the right to take possession of the commodity and to dispose of the commodity using any other method authorized in this section.
(3) If the state agency for surplus property determines, within fifteen days of receiving a commodity, that disposing of the commodity in a landfill or by other lawful means of waste disposal would be more beneficial to the state than disposing of the commodity using any other method authorized in this section, the cost of the disposal is the responsibility of the agency from which it received the commodity."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 626), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 728) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 728 - "A Bill to amend and reenact §5A-3-45 of the Code of West Virginia, 1931, as amended, relating to the disposition of state surplus property generally; allowing cannibalization of commodities under certain circumstances; allowing the disposing of commodities as waste under certain circumstances; providing for procedures by legislative rules; defining cannibalization; allowing the state agency for surplus property to take possession of a commodity in certain circumstances and dispose of the commodity using any method authorized in the section; and providing that the cost of disposal in certain circumstances is the responsibility of the agency from which the state agency for surplus property received the commodity."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 729, Authorizing magistrate courts order home incarceration; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and adopted, amending on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-4. Home incarceration; period of home incarceration; applicability.
(a) As a condition of probation or bail or as an alternative sentence to another form of incarceration for any criminal violation of this code over which a circuit court has jurisdiction, a circuit court may order an offender confined to the offender's home for a period of home incarceration. As an alternative sentence to incarceration in jail for any criminal violation of this code over which a magistrate court has jurisdiction or as a condition of bail for a criminal violation of this code over which a magistrate court has jurisdiction to set bail, a magistrate may order an ~~adult~~ offender ~~convicted of any criminal violation under this code over which a magistrate court has jurisdiction, be~~ confined to the offender's home for a period of electronically monitored home incarceration: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
(b) The period of home incarceration may be continuous or intermittent, as the circuit court or magistrate court orders~~, or continuous except as provided by section five of this article if ordered by a magistrate~~. However, the aggregate time actually spent in home incarceration may not exceed the term of imprisonment or incarceration prescribed by this code for the offense committed by the offender.
(c) A grant of home incarceration under this article constitutes a waiver of any entitlement to deduction from a sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
(d) When imposing home incarceration as a condition of bail, a magistrate shall do so consistent with guidelines promulgated by the Supreme Court of Appeals.".
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 627), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 729) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 628), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 729) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 746, Reducing rate of tax paid on privilege of severing timber after certain date; on third reading, coming up in regular order, was read a third time.
Delegate Armstead requested to be excused from voting on the passage of S. B. 746 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 629), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Browning, Caputo, Hrutkay, Longstreth, Louisos, Manchin, Martin and Porter.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 746) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 746 -- "A Bill to amend and reenact §11-13A-3a, §11-13A-3b and §11-13A-3d of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-13A-5b, all relating to the reduction from five percent to four percent in the severance tax imposed on natural gas produced from wells placed in service on or after the first day of December, two thousand five; the reduction from three and twenty-two hundredths percent to one and twenty-two hundredths percent in the severance tax imposed on timber produced on or after the first day of December, two thousand five; reducing the period of availability of a certain five-year severance tax exemption for coalbed methane production; reducing from five percent to four percent the severance tax on gas produced from coalbed methane wells on or after the first day of December, two thousand five; and dedicating and distributing ten percent of coalbed methane severance tax for benefit of counties and municipalities."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 748, Providing credit for mitigation required as component of Army Corps of Engineers; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 630), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Hamilton.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 748) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for H. B. 2005, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution; on third reading, coming up in regular order, was read a third time.
Delegates Argento, Armstead, Ashley, Azinger, Boggs, Browning, Campbell, Cann, Ellen, Ennis, Frich, Hamilton, Kominar, Lane, Mahan, Marshall, Schoen, Stemple, Stephens, Swartzmiller, Trump, Walters, G. White, H. White, Williams and Wysong requested to be excused from voting on the passage of Com. Sub. for H. B. 2005 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bill, the yeas and nays were taken (Roll No. 631), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Lane, Louisos, Overington, Porter and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2005) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 632), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2005) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3363, Supplementing, amending, reducing and adding a new item to the existing appropriations from the state fund to the department of military affairs and public safety - division of corrections; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 633), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3363) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 634), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Crosier, Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3363) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3364, Making supplementary appropriation of federal funds to the department of environmental protection - division of environmental protection; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 635), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3364) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 636), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3364) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Second Reading
On motion of Delegate Staton, S. B. 622, Clarifying exemption for property used by certain not-for-profit, tax-exempt corporations; on second reading, was taken up for further consideration and read second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-9. Property exempt from taxation.
(a) All property, real and personal, described in this subsection, and to the extent herein limited, is exempt from taxation:
(1) Property belonging to the United States, other than property permitted by the United States to be taxed under state law;
(2) Property belonging exclusively to the state;
(3) Property belonging exclusively to any county, district, city, village or town in this state, and used for public purposes;
(4) Property located in this state, belonging to any city, town, village, county or any other political subdivision of another state, and used for public purposes;
(5) Property used exclusively for divine worship;
(6) Parsonages and the household goods and furniture pertaining thereto;
(7) Mortgages, bonds and other evidence of indebtedness in the hands of bona fide owners and holders hereafter issued and sold by churches and religious societies for the purposes of securing money to be used in the erection of church buildings used exclusively for divine worship, or for the purpose of paying indebtedness thereon;
(8) Cemeteries;
(9) Property belonging to, or held in trust for, colleges, seminaries, academies and free schools, if used for educational, literary or scientific purposes, including books, apparatus, annuities and furniture;
(10) Property belonging to, or held in trust for, colleges or universities located in West Virginia, or any public or private nonprofit foundation or corporation which receives contributions exclusively for such college or university, if the property or dividends, interest, rents or royalties derived therefrom are used or devoted to educational purposes of such college or university;
(11) Public and family libraries;
(12) Property used for charitable purposes, and not held or leased out for profit;
(13) Property used for the public purposes of distributing water or natural gas, or providing sewer service by a duly chartered nonprofit corporation when such property is not held, leased out or used for profit;
(14) Property used for area economic development purposes by nonprofit corporations when such property is not leased out for profit;
(15) All real estate not exceeding one acre in extent, and the buildings thereon, used exclusively by any college or university society as a literary hall, or as a dormitory or clubroom, if not used with a view to profit, including, but not limited to, property owned by a fraternity or sorority organization affiliated with a university or college, or property owned by a nonprofit housing corporation or similar entity on behalf of a fraternity or sorority organization affiliated with a university or college, when the property is used as residential accommodations, or as a dormitory for members of the organization;
(16) All property belonging to benevolent associations, not conducted for private profit;
(17) Property belonging to any public institution for the education of the deaf, dumb or blind, or any hospital not held or leased out for profit;
(18) Houses of refuge and mental health ~~facility or orphanage~~ facilities or orphanages;
(19) Homes for children or for the aged, friendless or infirm, not conducted for private profit including a continuing care retirement community which is owned or leased by a corporation or other organization exempt from federal income taxes under Section 501(c) (3) or (c) (4) of the Internal Revenue Code of 1986, is used in a manner consistent with the charitable purpose for which owner or lessee received its federal tax exemption and the income from which does not constitute 'unrelated business taxable income' as that term is defined in Section 512 of the Internal Revenue Code of 1986. For purposes of this subsection, a 'continuing care retirement community' is a facility at which one or more service and housing packages, such as independent living or assisted living, are provided to its elderly residents in exchange for the payment of an entrance fee or deposit or payment of periodic charges or both and also includes assisted living facilities licensed under article five-d, chapter sixteen of the code and residential care communities licensed under article five-n, chapter sixteen of the code: Provided, That the term continuing care retirement community is not intended to include nursing homes licensed under article five-c of said chapter;
(20) Fire engines and implements for extinguishing fires, and property used exclusively for the safekeeping thereof, and for the meeting of fire companies;
(21) All property on hand to be used in the subsistence of livestock on hand at the commencement of the assessment year;
(22) Household goods to the value of two hundred dollars, whether or not held or used for profit;
(23) Bank deposits and money;
(24) Household goods, which for purposes of this section means only personal property and household goods commonly found within the house and items used to care for the house and its surrounding property, when not held or used for profit;
(25) Personal effects, which for purposes of this section means only articles and items of personal property commonly worn on or about the human body, or carried by a person and normally thought to be associated with the person when not held or used for profit;
(26) Dead victuals laid away for family use;
(27) All property belonging to the state, any county, district, city, village, town or other political subdivision, or any state college or university which is subject to a lease purchase agreement and which provides that, during the term of the lease purchase agreement, title to the leased property rests in the lessee so long as lessee is not in default or shall not have terminated the lease as to the property; ~~and~~
(28) Personal property, including livestock, employed exclusively in agriculture, as defined in article ten, section one of the West Virginia Constitution, the products of agriculture, and while owned by the producer; and
~~(28)~~ (29) Any other property or security exempted by any other provision of law.
(b) Notwithstanding the provisions of subsection (a) of this section, no property is exempt from taxation which has been purchased or procured for the purpose of evading taxation, whether temporarily holding the same over the first day of the assessment year or otherwise.
(c) Real property which is exempt from taxation by subsection (a) of this section shall be entered upon the assessor's books, together with the true and actual value thereof, but no taxes may be levied upon the property or extended upon the assessor's books.
(d) Notwithstanding any other provisions of this section, this section does not exempt from taxation any property owned by, or held in trust for, educational, literary, scientific, religious or other charitable corporations or organizations, including any public or private nonprofit foundation or corporation existing for the support of any college or university located in West Virginia, unless such property, or the dividends, interest, rents or royalties derived therefrom, is used primarily and immediately for the purposes of the corporations or organizations.
(e) The Tax Commissioner shall, by issuance of rules, provide each assessor with guidelines to ensure uniform assessment practices statewide to effect the intent of this section.
(f) Inasmuch as there is litigation pending regarding application of this section to property held by fraternities and sororities, amendments to this section enacted in the year one thousand nine hundred ninety-eight shall apply to all cases and controversies pending on the date of such enactment.
(g) The amendment to subdivision (27), subsection (a) of this section, passed during the two thousand five regular session of the Legislature, shall apply to all applicable lease purchase agreements in existence upon the effective date of the amendment."
The bill was then ordered to third reading.
Delegate Staton asked and obtained unanimous consent that the remarks of the legislative interns be printed in the Appendix to the Journal.
At 11:27 a.m., on motion of Delegate Staton, the House of Delegates recessed until 1:30 p.m., and reconvened at that time.
Miscellaneous Business
Delegate Ferrell announced that he was absent when the vote was taken on Roll Nos. 579 through 636, and had be been present he would have voted "Ya" thereon.
Delegate Hunt announced that he was absent when the vote was taken on Roll Nos. 579 through 595, and had be been present he would have voted "Yea" thereon.
Delegate Mahan announced that she was absent on Roll No. 579 through 586, and had she been present she would have voted "Yea" thereon.
Delegate Ennis announced that he was absent on Roll No. 610, and had he been present he would have voted "Yea" thereon.
Delegate Sobonya announced that she was absent when the votes were taken on Roll Nos. 579 and 580, and had she been present she would have voted "Nay" thereon, and that she was absent on Roll Nos. 581-584, and had she been present she would have noted "Yea" thereon.
Delegate Stevens announced that she was absent on Roll No. 579, 580 and 586, and had she been present she would have voted "Yea" thereon.
Reordering of the Calendar
Delegate Staton announced that the Committee on Rules had transferred the following Resolutions from the House Calendar to the Special Calendar:
H. C. R. 62, Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge",
H. C. R. 66, Requesting the Joint Committee on Government and Finance study the increasing role sanitarians play in protecting public health,
H. C. R. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the southern entrance to Wellsburg in Brooke County, the "John G. Chernenko Bridge",
H. C. R. 90, Requesting the Joint Committee on Government and Finance to conduct a study on oral health in West Virginia,
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and future highway financing,
S. C. R. 93, Requesting Joint Committee and Government and Finance study homeowners' and commercial property and casualty insurance,
H. C. R. 98, Requesting the Joint Committee on Government and Finance study the development of a coordinated deployment and operation of broadband Internet access throughout the state.
And,
H. C. R. 100, Expressing support of the College Summit program and requesting the Joint Committee on Government and Finance to make a study on finding funding to help College Summit in its goal to assist West Virginia's students in furthering their education.
Delegate Staton announced further that the Committee on Rules had transferred the following bills from the House Calendar, third reading, to the Special Calendar:
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund,
S. B. 159, Creating Consolidated Local Government Act,
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
S. B. 467, Authorizing Director of Division of Protective Services assess, charge and collect fees,
S. B. 561, Authorizing Greater Huntington Park and Recreation District impose fees and issue revenue bonds,
And,
S. B. 666, Relating to exemptions for certain insurance companies from business franchise tax and corporation net income tax.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
On motion for leave, a resolution was introduced (Originating in the Committee on Rules and reported with the recommendation that it be adopted), which was read by it title as follows:
H. C. R. 104 - "Authorizing the Clerk of the Senate and the Clerk of the House of Delegates to correct a designation or term used in certain bills that, from the context, is clearly wrong."
Whereas, Several bills have passed both houses of the Legislature using the term "correctional facility" when the context of the bills obviously indicates that the term "regional jail" would be the correct term to be used; and
Whereas, The Legislature wishes to avoid a gubernatorial veto based on purely technical grounds created by a misnomer, therefore, be it
Resolved by the Legislature of West Virginia:
That the Clerk of the West Virginia Senate and the Clerk of the House of Delegates in their capacity to enroll all of the bills enacted by the Legislature during the Regular Session of the Legislature, 2005, may correct the use of the designation or term "correctional facility" used in certain bills where, from the context, it is obviously indicated that the designation or term "regional jail" is correct and should be used.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. C. R. 104) was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar
Unfinished Business
H. C. R. 62 - Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge";
coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the southern entrance to Wellsburg in Brooke County, the "John G. Chernenko Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 90, Requesting the Joint Committee on Government and Finance to conduct a study on oral health in West Virginia"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 93, Providing for the issuance of not to exceed three hundred seventy-five million dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 94, Requesting the Joint Committee on Government and Finance to study the actions that may be undertaken to ensure the competitiveness of West Virginia's coal industry; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 98, Requesting the Joint Committee on Government and Finance study the development of a coordinated deployment and operation of broadband Internet access throughout the state; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 100, Expressing support of the College Summit program and requesting the Joint Committee on Government and Finance to make a study on finding funding to help College Summit in its goal to assist West Virginia's students in furthering their education; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and future highway financing; coming up in regular order as unfinished business was reported by the Clerk.
An amendment recommended by the Committee on Rules, was reported by the Clerk and adopted amending the resolution on page one, line eight, by inserting the following:
"Whereas, It is critical that West Virginia develops and maintains a modern transportation system that can accommodate future growth in population, vehicle travel, tourism and economic development; and
Whereas, West Virginia's extensive system of roads and bridges provides the state's 1.8 million residents and visitors a high level of mobility; and
Whereas, West Virginia is one of only four states in the nation in which there is no county and/or city ownership of highways; and,
Whereas, West Virginia is responsible for maintaining more than ninety-four percent of all public highway mileage in the state, the highest of such percentages in the nation; and"
The resolution, as amended, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
S. B. 583, Relating to appealing orders from family court to circuit court.
.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Webster, Hrutkay and Howard.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2476, Relating generally to parole and parole proceedings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page five, section nineteen, lines sixty-seven through seventy-one, by striking out the following:
"Any person having been released on parole three times and subsequently had his or her parole revoked for violations of any term or condition of parole shall serve the remainder of his or her sentence and is not eligible for further release on parole."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 637), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Thompson, Rick.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2476 ) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2523, Making it a crime for released inmates to contact correctional employees and requiring that inmates be advised of such prohibition upon release.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported to the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §61-10-32, to read as follows:
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.

§61-10-32. Unlawful contact with a Division of Corrections employee or member of the parole board; penalty.

(a) It shall be unlawful for a former inmate of the Division of Corrections to make a telephone call to a Division of Corrections employee or member of the parole board when the employee has requested in writing to that former inmate that he or she not call and the former inmate has actually been served with a copy of the written request.
(b) It shall be unlawful for a former inmate of the Division of Corrections to willfully and repeatedly follow a Division of Corrections employee or member of the parole board with whom he or she seeks to establish a personal or social relationship when the Division of Corrections employee or member of the parole board has expressed to the former inmate that he or she wishes not to have contact with the former inmate.
(c) It shall be unlawful for a former inmate of the Division of Corrections to harass or make credible threats against a Division of Corrections employee or member of the parole board.
(d) Any offense committed under sub-section (a) may be deemed to have occurred at the place at which the telephone call was made, or the place at which the telephone call was received.
(e) Any person who violates any provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for a first offense, be fined not more than five hundred dollars. Any person violating this section for a second offense shall be imprisoned not less than ten days nor more than six months, or both fined and imprisoned.
(f) For purposes of this section:
(1) 'Harass' means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress;
(2) 'Credible threat' means a threat of bodily injury made with apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat would be carried out;
(3) 'Bodily injury' means substantial physical pain, illness or any impairment of physical condition.
(4) 'Immediate family' means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household.
(g) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
(h) It is a condition of bond for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical with the alleged victim."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2523 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-10-32, relating to making it a crime for released inmates to contact correctional employees or members of the parol board in certain circumstances."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 638), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2523) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2812, Extending the time for the Preston County Board of Education to meet as a levying body for the purpose of presenting a special levy election for the voters in the county.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported to the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"PRESTON COUNTY SCHOOL BOARD MEETING AS LEVYING BODY EXTENDED.

§1. Extending time for the Preston County School Board to meet as levying body for an election enacting a special levy for school funding.

Notwithstanding the provision of article eight, chapter eleven of the Code of West Virginia, 1931, as amended, the Board of Education of Preston County, West Virginia, is hereby authorized to extend the time for its meeting as a levying body, setting the levy rate and certifying its actions to the State Tax Commissioner from between the seventh and twenty-eighth days of March and the third Tuesday in April until the ninth day of May, two thousand five, for the purpose of submitting to the voters of Preston County the question of enacting a special levy for school funding."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2812 - "A Bill to extend the time for the Board of Education of Preston County to meet as a levying body for the purpose of presenting to the voters of Preston County an election on the question of enacting a special levy for school funding from between the seventh and twenty-eighth days of March and the third Tuesday in April until the ninth day of May, two thousand five."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 639), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2812) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 640), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2812) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3328, Changing the name of the office of emergency services and specifying additional responsibilities.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §15-5-1, §15-5-2, §15-5-3 and §15-5-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.

§15-5-1. Policy and purpose. In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness, resulting from terrorism, enemy attack, sabotage or other hostile action, or from fire, flood, earthquakes or other natural or man-made causes and in order to insure that preparations of this state will be adequate to deal with such disasters, and generally to provide for the common defense and to protect the public peace, health and safety and to preserve the lives and property of the people of the state, it is hereby found and declared to be necessary: (1) To create ~~a state emergency services agency~~ the Division of Homeland Security and Emergency Management and to authorize the creation of local and regional organizations for emergency services in the political subdivisions of the state; (2) to confer upon the Governor, and upon the executive heads of governing bodies of the political subdivisions of the state the emergency powers provided herein; (3) to provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to the carrying out of emergency services and homeland security functions; (4) and to establish and implement a comprehensive ~~emergency services~~ homeland security and emergency management ~~plan~~ plans to deal with such disasters. It is further declared to be the purpose of this article and the policy of the state that all homeland security and emergency management funds and ~~emergency services~~ functions of this state be coordinated to the maximum extent with the Secretary of the Department of Military Affairs and Public Safety and with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type, so that the most effective preparation and use may be made of the nation's and this state's manpower, resources and facilities for dealing with any disaster that may occur.
§15-5-2. Definitions. As used in this article:
(a) 'Emergency services' means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond and recover, to prevent, detect, deter and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage or other natural or other man-made causes. These functions include, without limitation, fire-fighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to ~~civilian protection~~ the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat thereof;
(b) 'Local organization for emergency services' means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function;
(c) 'Mobile support unit' means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area;
(d) 'Political subdivision' means any county or municipal corporation in this state;
(e) 'Board' means the West Virginia Disaster Recovery Board created by this article;
(f) 'Code' means the code of West Virginia, one thousand nine hundred thirty-one, as amended;
(g) 'Community facilities' means a specific work or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;
(h) 'Disaster' means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action;
(i) 'Disaster recovery activities' means activities undertaken prior to, during or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities and community facilities;
(j) 'Emergency services' means the preparation for and the carrying out of all emergency functions to prevent, minimize and repair injury and damage resulting from a disaster, including, without limitation, fire-fighting services, police services, medical and health services, communications, evacuation of persons and property from stricken areas, welfare services, transportation, temporary restoration of public utility services, and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and the carrying out of the foregoing functions;
~~(k)~~ (j) 'Essential business activities' means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service deemed by the authority to be necessary for recovery from a disaster;
~~(l)~~ (k) 'Person' means any individual, corporation, voluntary organization or entity, partnership, firm or other association, organization or entity organized or existing under the laws of this or any other state or country;
~~(m)~~ (l) 'Recovery fund' means the West Virginia Disaster Recovery Trust Fund created by this article;
~~(n)~~ (m) 'Residential housing' means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and such other nonhousing facilities as may be incidental or appurtenant thereto; and
~~(o)~~ (n) 'Temporary housing' means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities as may be incidental or appurtenant thereto.
(o) 'Secretary' means the Secretary of the West Virginia Department of Military Affairs and Public Safety.
§15-5-3. Division of Homeland Security and Emergency Management created.
~~There is hereby created within the office of the governor an office to be known as~~ (a) The Office of Emergency Services, is continued as the Division of Homeland Security and Emergency Management within the Department of Military Affairs and Public Safety. All of the allied, advisory, affiliated or related entities and funds associated with the Office of Emergency Services and all its functions, personnel and property, are transferred to, incorporated in and administered as a part of the Division of Homeland Security and Emergency Management. Wherever the words 'Office of Emergency Services' appear in this code, they shall mean the Division of Homeland Security and Emergency Management.
(b) A Director of the ~~office of emergency services~~ Division of Homeland Security and Emergency Management ~~hereinafter called the director,~~ shall be appointed by the Governor, ~~in accordance with the provisions of section two-a, article seven, chapter six of this code.~~ by and with the advice and consent of the Senate. ~~On and after the effective date of this article, the director of civil and defense mobilization referred to in said section two-a shall be known and designated as the director of emergency services.~~ The Governor shall consider applicants for Director who at a minimum: (1) Have at least five years managerial or strategic planning experience; (2) are knowledgeable in matters relating to public safety, homeland security, emergency management and emergency response; and (3) have at a minimum, a federally issued secret level security clearance or have submitted to or will submit to a security clearance investigation for the purpose of obtaining, at a minimum, a federally issued secret level security clearance.
(c) The Director may employ such technical, clerical, stenographic and other personnel ~~and~~, fix their compensation and ~~may~~ make ~~such~~ expenditures within the appropriation ~~therefore~~ to the Division or from other funds made available ~~to him~~ for the purpose of providing ~~emergency~~ homeland security and emergency management services ~~as may be necessary~~ to carry out the purpose of this article. Employees of the ~~office of emergency services~~ Division of Homeland Security and Emergency Management shall be members of the State Civil Service System and all appointments of the office, except those required by law to be exempt, shall be a part of the classified service under the Civil Service System.
(d) The Director and other personnel of the ~~office of emergency services~~ Division of Homeland Security and Emergency Management shall be provided with appropriate office space, furniture, equipment, supplies, stationery and printing in the same manner as provided for personnel of other state agencies.
(e) The Director, subject to the direction and control of the Governor through the Secretary of the Department of Military Affairs and Public Safety, shall be executive head of the ~~office of emergency services~~ Division of Homeland Security and Emergency Management and shall be responsible to the Governor and the Secretary of the Department of Military Affairs and Public Safety for carrying out the program for ~~emergency services~~ homeland security and emergency management in this state. He The Director in consultation with the Secretary of the Department of Military Affairs and Public Safety shall coordinate the activities of all organizations for homeland security and emergency management ~~emergency services~~ within the state and maintain liaison with and cooperate with homeland security, emergency management and other emergency service and civil defense agencies and organizations of other states and of the federal government, and shall have ~~such~~ additional authority, duties and responsibilities authorized by this article as may be prescribed by the Governor or the Secretary of the Department of Military Affairs and Public Safety.
(f) The Director shall have the power to acquire in the name of the state by purchase, lease or gift, real property and rights or easements necessary or convenient to construct thereon the necessary building or buildings for housing and homeland security and emergency management ~~emergency services~~ control center.
The office of emergency planning in the department of finance and administration is hereby abolished and its functions, personnel and property transferred to the office of emergency services. The department of civil and defense mobilization is hereby abolished and its functions, personnel and property transferred to the office of emergency services.
§15-5-13. Appropriations; acceptance of services, gifts, grants and loans.
(a) Each political subdivision shall have the power to make appropriations in the manner provided by law for making appropriations for the ordinary expenses of such political subdivision for the payment of expenses of its local organization for emergency services or of its proportionate share of expenses of a regional organization for emergency services, or both.
(b) Whenever the federal government or any agency or officer thereof shall offer to any authority, corporation, partnership or other entity, public or private or the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or ~~such~~ a political subdivision, after consultation and in coordination with the Secretary and acting with the consent of the Governor and through its executive officer or governing body, may accept ~~such~~ the offer. ~~and upon such~~ Upon acceptance, the Governor of the state or executive officer or governing body of ~~such~~ the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive ~~such~~ services, equipment, supplies, materials or funds on behalf of the state or ~~such~~ the political subdivision and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.
(c) Whenever any person, firm or corporation shall offer to the state or to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or ~~such~~ the political subdivision, after consultation and in coordination with the Secretary and acting through its executive officer or governing body, may accept ~~such~~ the offer. ~~and upon such~~ Upon acceptance, the Governor of the state or executive officer or governing body of ~~such~~ the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive ~~such~~ services, equipment, supplies, materials or funds on behalf of the state or ~~such~~ the political subdivision and subject to the terms of the offer.
(e) The Governor may require any agency, authority, corporation, partnership or other entity to furnish a report, in both written and electronic form, detailing the source and receipt of all services, equipment, supplies, materials or funds for purposes relating to homeland security or emergency services as a condition of receiving these from the state. Within ten days of the receipt of any reports required under this subsection, the Governor shall furnish copies thereof to the Legislature."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 641), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Thompson, Rick.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3328) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 642), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3328) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund; on third reading, with amendments pending, coming up in regular order, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §11A-3-20 and §11A-3-23 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-20. Refund to purchaser of payment made at sheriff's sale where property is subject of an erroneous assessment or is otherwise nonexistent.

§11A-3-23. Redemption from purchase; receipt; list of redemptions; lien; lien of person redeeming interest of another; record.

Delegates Walters, Longstreth, Caputo and Manchin moved to amend the bill on page twenty-four, line sixteen, following "15A." by inserting the words "THE A. JAMES MANCHIN".
And,
On page twenty-seven, section one, line fourteen, following "the", by inserting the words "A. James Manchin".
On the adoption of the amendment to the amendment, Delegate Manchin demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 645), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 646), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 428) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, further consideration of the following bills was then postponed:
Com. Sub. for S. B. 558, Relating to management and investment of public funds,
And,
Com . Sub. for S. B. 603, Relating to higher education.
S. B. 669, Providing sales tax exemption for high-technology services; on third reading, coming up in regular order, with amendment pending, was reported by the Clerk.
An amendment recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §3-1-19, §3-1-20, §3-1-21, §3-1-21a, §3-1-24 and §3-1-25 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §3-3-2 and §3-3-11 of said code be amended and reenacted; that §3-4-10, §3-4-12 and §3-4-12a of said code be amended and reenacted; that §3-4A-12, §3-4A-13 and §3-4A-13a of said code be amended and reenacted; that §3-5-7, §3-5-8, §3-5-8a, §3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and §3-5-24 of said code be amended and reenacted; that §3-6-4 and §3-6-4a of said code be amended and reenacted; and §3- 9-18 of said code be amended and reenacted; and that §3-10-6 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-19. Ballot commissioners; selection; duties generally; vacancies.
In each county in the state, the clerk of the county commission while holding ~~such~~ office, and two persons ~~by him~~ appointed by him or her, one from each of the two political parties which cast the largest and second largest number of votes in the state at the last preceding general election, shall constitute a board of ballot commissioners. ~~of which board the~~ ~~said~~ The clerk shall be chairman. It shall be the duty of the clerk ~~of said court~~ to notify the chairman of the respective county executive committees of ~~such~~ the two parties, at least five days before making ~~such~~ appointments, of the time and place of making the ~~same, and if~~ appointments. If at any time after ~~such~~ notice is given, and before or on the day so fixed for making ~~such~~ appointments, the chairman of ~~either of said~~ each of the committees shall designate, in writing, a member of such party as ballot commissioner. ~~having the qualifications of a voter, he~~ Each designee shall be appointed if he or she meets the qualifications of a voter. Ballot commissioners shall be appointed between the fifteenth and thirtieth days of January in each year in which a general election is to be held, for a term of two years beginning on the first day of February next ensuing. ~~Provided,~~ That in the year one thousand nine hundred sixty- eight, such ballot commissioners shall be appointed between the first and the tenth days of February, for a term beginning on the eleventh day of February of said year and ending on the thirty-first day of January, one thousand nine hundred seventy. They shall perform the duties of ~~such~~ ballot commissioners at all general, special and primary elections held in the county or any magisterial district thereof during their term of office. A vacancy shall be filled in the same manner as an original appointment, but immediate notice of a vacancy shall, where necessary, be deemed compliance with the five-day notice provision.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall provide cards of general information which will provide the date of the election and the hours during which polling places will be open, instruction for mail-in registrants and first-time voters and voters' rights and prohibitions against fraud and misrepresentation and cards of instruction for voters in preparing their ballots and casting a provisional ballot as prescribed by the Secretary of State. They shall furnish a sufficient number of cards to the commissioners of election at the same time they deliver the ballots for the precinct.
(b) The commissioners of election shall post one instruction card in each voting booth giving instructions to the voters on how to prepare the ballots for deposit in the ballot boxes and how to obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other cards of general information at places inside and outside of the voting place where voters pass or wait to vote. The commissioners shall also post the official write-in candidates in the same locations inside and outside of the voting place.
(d) The ballot commissioners shall have printed, on a different color paper than the official ballot, ten or more copies of sample ballots for each voting place for each election. Sample ballots shall be furnished and posted with the cards of general information at each voting place.
(e) During the period of early in-person voting, the ~~official designated to supervise and conduct absentee voting~~ clerk of the county commission shall post the cards of general information, a list of official write-in candidates and sample ballots within the area where absentee voting is conducted.

§3-1-21. Printing of official and sample ballots; number; packaging and delivery, correction of ballots.

(a) The board of ballot commissioners for each county shall provide the ballots and sample ballots necessary for conducting every election for public officers in which the voters of the county participate.
(b) The persons required to provide the ballots necessary for conducting all other elections are:
(1) The Secretary of State, for any statewide special election ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide special election ordered by the county commission;
(3) The Board of Education, for any special levy or bond election ordered by the Board of Education; or
(4) The municipal board of ballot commissioners, for any election conducted for or within a municipality except an election in which the matter affecting the municipality is placed on the county ballot at a county election. Ballots other than those printed by the proper authorities as specified in this section shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular official ballots printed shall equal one and one-twentieth times the number of registered voters eligible to vote that ballot. The ~~circuit~~ clerk of the county commission shall determine the number of absentee official ballots.
(d) The number of regular official ballots packaged for each precinct shall equal the number of registered voters of the precinct. The remaining regular official ballots shall be packaged and delivered to the ~~circuit~~ clerk of the county commission who shall retain them unopened until they are required for an emergency. Each package of ballots shall be wrapped and sealed in a manner which will immediately make apparent any attempt to open, alter or tamper with the ballots. Each package of ballots for a precinct shall be clearly labeled in a manner which cannot be altered, with the county name, the precinct number and the number of ballots contained in each package. If the packaging material conceals the face of the ballot, a sample ballot identical to the official ballots contained therein shall be securely attached to the outside of the package or, in the case of ballot cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee voting in all voting systems shall be delivered to the ~~circuit~~ clerk of the county commission of the appropriate county not later than the forty-second day before the election. In counties where the clerk of the county commission is responsible for conducting absentee voting, the circuit clerk shall transfer the absentee ballots to the clerk of the county commission prior to the beginning of absentee voting. All official ballots in paper ballot systems shall be delivered to the ~~circuit~~ clerk of the county commission of the appropriate county not later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that an official ballot contains an error which, in the opinion of the board, is of sufficient magnitude as to confuse or mislead the voters, the board shall cause the error to be corrected either by the reprinting of the ballots or by the use of stickers printed with the correction and of suitable size to be placed over the error without covering any other portion of the ballot.

§3-1-21a. Vendors authorized to print ballots; eligibility; application and certification; denial, suspension and revocation of authorization; appeal.

(a) The printing of ballots for any election to be held pursuant to the provisions of this chapter shall be contracted for with a vendor authorized in accordance with the provisions of this section.
(b) Any vendor authorized to do business in West Virginia and in good standing may apply for a certificate of authorization to print ballots for elections in this state: Provided, That any individual, partnership, association or corporation who does not qualify as a resident vendor pursuant to the provisions of section thirty-seven-a, article three, chapter five-a of this code or who prints the ballots in a state which prohibits that state or any of its political subdivisions from contracting with West Virginia resident vendors for the printing of ballots or which prohibits the printing of ballots outside of such state, is not eligible to obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections held pursuant to the provisions of this chapter shall, prior to the execution of any contract for the printing of ballots with any state, county, or municipal government, obtain a certificate of authorization to print ballots.
(2) A certificate of authorization may be obtained by application to the Secretary of State, upon a form prescribed by the Secretary of State. ~~which~~ The form shall include a statement that all printing, packaging and delivery specifications for ballots set forth in this chapter will be substantially met, and that the vendor applying for certification is eligible in accordance with the provisions of this section.
(3) Upon receipt of the completed application, the Secretary of State shall issue a certificate of authorization to print ballots, which ~~certificate~~ shall remain in effect for two years from the date of issuance and may be renewed upon application therefor: Provided, That the Secretary of State may deny the application to issue or renew the certificate of authorization, or may suspend or revoke the certificate of authorization upon a determination that the vendor has not substantially complied with the printing, packaging and delivery specifications in the printing of ballots for any state, county or municipal election, or that the vendor is not eligible or is no longer eligible to print ballots pursuant to the provisions of this section. The Secretary of State shall give written notice of any such determination by certified mail, return receipt requested, to the vendor setting forth the reason for the suspension, revocation or the denial of the application or the denial of the renewal thereof. The applicant may, within sixty days of the receipt of such denial, file a written appeal with the State Election Commission. The State Election Commission shall promulgate rules establishing a hearing process for such appeals.
(d) On or before the second Monday of January of each year, the Secretary of State shall provide a list of all vendors authorized to print ballots for state, county and municipal elections to the clerk of each ~~circuit court~~ county commission of this state.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the clerk of the county commission to appoint one or more of the commissioners of election or poll clerks at each precinct of the county to attend at the ~~offices~~ office of the ~~clerks~~ clerk of the ~~circuit court and~~ county commission ~~as the case may be,~~ at least one day before each election to receive the ballots, ballot boxes, poll books, registration records and forms and all other supplies and materials for conducting the election at the respective precincts. The ~~clerks~~ clerk shall take a receipt for the respective materials delivered to the commissioners of election or poll clerks and shall file the receipt in ~~their respective offices~~ his or her office. It shall be the duty of the commissioners or poll clerks to receive the supplies and materials from the ~~respective clerks~~ clerk and to deliver them with the seal of all sealed packages unbroken at the election precinct in time to open the election.
(b) The commissioners or poll clerks, if they perform the messenger services, shall receive the per diem and mileage rate prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals unbroken. For general and special elections the delivered ballots shall not be in excess of one and one-twentieth times the number of registered voters in the precinct. For primary elections the ballots for each party shall be in a separately sealed package containing not more than one and one-twentieth times the number of registered voters of each party in the election precinct.
(d) For primary elections one copy of the poll books, including the written or printed forms for oaths of commissioners of election and poll clerks, shall be supplied at each voting precinct for each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct for which a receiving and a counting board of election commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election or poll clerk fails to appear at the offices of the ~~clerks~~ clerk of the county commission ~~and circuit courts~~ by the close of the clerk's office on the day prior to any election, the board of ballot commissioners, the chairman or the ~~circuit~~ clerk of the county commission shall forthwith dispatch a special messenger to the commissioners of election of each respective precinct with the ballots, registration records, ballot boxes, poll books and other supplies for the precinct. The messenger, if not a county employee, shall be allowed five dollars for this service. The messenger shall also receive mileage up to the rate of reimbursement authorized by the travel management rule of the Department of Administration for each mile necessarily traveled in the performance of his or her services. The messenger shall promptly report to the ~~clerks of the circuit court and~~ clerk of county commission ~~respectively,~~ and file with the ~~clerks~~ clerk the receipts of the person to whom he or she delivered the ballots and other supplies and his or her affidavit stating when and to whom he or she delivered them.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political division in which the election is held, in conjunction with the ballot commissioners appointed from each political party, as follows:
(1) For any election held throughout the county, within a political subdivision or territory other than a municipality, or within a municipality when the municipal election is conducted in conjunction with a county election, the clerk of the county commission; ~~Provided,~~ That if the clerk of the county commission and the clerk of the circuit court jointly petition the county commission setting forth their agreement that the clerk of the circuit court should continue to supervise and conduct the absentee voting, the county commission shall designate the clerk of the circuit court to supervise and conduct the absentee voting or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to conduct absentee voting, for any election held entirely within the municipality, or in the case of annexation elections, within the area affected. The terms 'clerk' or '~~circuit clerk~~' 'clerk of the county commission' or 'official designated to supervise and conduct absentee voting' used elsewhere in this article means municipal recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general or special election is to make application in writing in the proper form to the proper official as follows:
(1) The completed application is to be on a form prescribed by the Secretary of State and is to contain the name, date of birth and political affiliation of the voter, residence address within the county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone number of the attending physician, the signature of the voter to a declaration made under the penalties for false swearing as provided in section three, article nine of this chapter that the statements and declarations contained in the application are true, any additional information which the voter is required to supply, any affidavit which may be required and an indication as to whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under the provisions of 42 U. S. C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed application may be on the federal postcard application for absentee ballot form issued under authority of that act; or
(3) For any person unable to obtain the official form for absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the proper official, the completed application may be in a form set out by the voter, provided all information required to meet the provisions of this article is set forth and the application is signed by the voter requesting the ballot.
§3-3-11. Preparation, number and handling of absent voters' ballots.
(a) Absent voters' ballots are to be in all respects like other ballots. Not less than seventy days before the date on which any primary, general or special election is to be held, unless a lesser number of days is provided ~~for~~ in any specific election law in which case the lesser number of days applies, the clerks of the ~~circuit courts~~ county commissions of the several counties shall estimate and determine the number of absent voters' ballots of all kinds which will be required in their respective counties for that election. The ballots for the election of all officers, or the ratification, acceptance or rejection of any measure, proposition or other public question to be voted on by the voters, are to be prepared and printed under the direction of the board of ballot commissioners constituted as provided in article one of this chapter. The several county boards of ballot commissioners shall prepare and have printed, in the number they may determine, absent voters' ballots that are to be printed under their directions as provided in this chapter and those ballots are to be delivered to the clerk of the ~~circuit court~~ county commission of the county not less than forty-two days before the day of the election at which they are to be used. In counties where the clerk of the county commission is responsible for conducting absentee voting, the circuit clerk shall transfer the absentee ballots to the clerk of the county commission prior to the beginning of absentee voting.
(b) The ~~clerk of the county commission~~ official designated to supervise and conduct absentee voting shall be ~~primarily~~ responsible for the mailing, receiving, delivering and otherwise handling of all absent voters' ballots. He or she shall keep a record, as may be prescribed by the Secretary of State, of all ballots so delivered for the purpose of absentee voting, as well as all ballots, if any, marked before him or her and shall deliver to the commissioner of election a certificate stating the number of ballots delivered or mailed to absent voters and those marked before him or her, if any, and the names of the voters to whom those ballots have been delivered or mailed or by whom they have been marked, if marked before him or her.
ARTICLE 4. VOTING MACHINES.

§3-4-10. Ballot labels, instructions and other supplies; vacancy changes; procedure and requirements.

(a) The ballot commissioners of any county in which voting machines are to be used in any election shall cause to be printed for use in the election the ballot labels for the voting machines and paper ballots for absentee voting, voting by persons unable to use the voting machine and provisional ballots or if an electronic voting system or direct recording election equipment is to be used in an election, the ballot commissioners shall comply with requirements of section eleven, article four-a of this chapter. The labels shall be clearly printed in black ink on clear white material in a size that will fit the ballot frames. The paper ballots shall be printed in compliance with the provisions of this chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the printing and arrangement of names of the candidates for each office indicated must be placed on the ballot for the primary election as nearly as possible according to the provisions of sections thirteen and thirteen-a, article five of this chapter and for the general election according to the provisions of section two, article six of this chapter: Provided, That the staggering of the names of candidates in multicandidate races and the instructions to straight ticket voters prescribed by section two, article six of this chapter shall appear on paper ballots but shall not appear on ballot labels for voting machines which mechanically control crossover voting.
(c) Each question to be voted on must be placed at the end of the ballot and must be printed according to the provisions of the laws and ~~regulations~~ rules governing the question.
(d) The ballot labels printed must total in number one and one-half times the total number of corresponding voting machines to be used in the several precincts of the county in the election. All the labels must be delivered to the clerk of the ~~circuit court~~ county commission at least twenty-eight days prior to the day of the election. The clerk of the ~~circuit court~~ county commission shall determine the number of paper ballots needed for absentee voting and to supply the precincts for provisional ballots and ballots to be cast by persons unable to use the voting machine. All required paper ballots shall be delivered to the clerk of the ~~circuit court~~ county commission at least forty-two days prior to the day of the election.
(e) When the ballot labels and absentee ballots are delivered, the clerk of the ~~circuit court~~ county commission shall examine them for accuracy, assure that the appropriate ballots and ballot labels are designated for each voting precinct and ~~deliver the ballot labels to the clerk of the county commission who shall~~ insert one set in each machine prior to the inspection of the machines as prescribed in section twelve of this article. The remainder of the ballot labels for each machine shall be retained by the clerk of the county commission for use in an emergency.
(f) In addition to all other equipment and supplies required by the provisions of this article, the ballot commissioners shall cause to be printed a supply of instruction cards, sample ballots and facsimile diagrams of the voting machine ballot adequate for the orderly conduct of the election in each precinct in their county. In addition, they shall provide appropriate facilities for the reception and safekeeping of the ballots of absent voters and of challenged voters and of the 'independent' voters who shall, in primary elections, cast their votes on nonpartisan candidates and public questions submitted to the voters.

§3-4-12. Inspection of machines; duties of county commission, ballot commissioners and election commissioners; keys and records relating to machines.

When the clerk of the county commission has completed the preparation of the voting machines, as provided in ~~the next~~ ~~preceding~~ section eleven of this article, and not later than seven days before the day of the election, he or she shall notify the members of the county commission and the ballot commissioners that the machines are ready for use. Thereupon the members of the county commission and the ballot commissioners shall convene at the office of the clerk, or at such other place wherein the voting machines are stored, not later than five days before the day of the election, and shall examine the machines to determine whether the requirements of this article have been met. Any candidate, and one representative of each political party having candidates to be voted on at the election, may be present during ~~such~~ the examination. If the machines are found to be in proper order, the members of the county commission and the ballot commissioners shall endorse their approval in the book in which the clerk entered the numbers of the machines opposite the numbers of the precincts. The clerk shall then deliver the keys to the voting machines to the ballot commissioners who shall give a receipt for the keys, which ~~receipt~~ shall contain identification of such keys. Not later than one day before the election the election commissioner of each precinct, who shall have been previously designated by the ballot commissioners, shall attend at the office of the ~~clerks of the circuit and~~ clerk of the county ~~commissions of such county~~ commission to receive the key or keys to the device covering the registering counters and such other keys as may be necessary for the operation of the machine in registering votes, and to receive the other necessary election records, books and supplies required by law. ~~Such~~ The election commissioners shall receive the per diem mileage rate prescribed by law for this service. ~~Such~~ The election commissioners shall give the ballot commissioners a receipt for ~~such~~ the keys, records, books and supplies. ~~and such~~ The receipt shall contain identification of ~~such~~ the keys. The master key and all other keys shall remain in the possession of the clerk of the county commission.
The term 'assistance in voting,' as used in this section, means assistance in physically marking the official ballot for a voter, or reading or directing the voter's attention to any part of the official ballot, or physically operating the voting machine.
§3-4-12a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at the offices of the ~~clerks~~ clerk of the county commission ~~and circuit court~~ by the close of the ~~clerks' offices~~ clerk's office on the day prior to any election, the board of ballot commissioners, the chairman thereof shall cause all necessary election records, books and supplies to be delivered by special messenger in the same manner and under the same terms and conditions as is provided for the dispatch of the special messenger under the provisions of section twenty-five, article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.

§3-4A-12. Ballot label arrangement in vote recording devices; sealing of devices; record of identifying numbers.

In counties using electronic voting systems utilizing vote recording devices:
(1) The number of ballot labels printed, where applicable, are to equal one and one-half times the total number of corresponding vote recording devices to be used in the election. All labels are to be delivered to the clerk of the county commission at least thirty-five days prior to the election. The ~~circuit~~ clerk shall immediately examine the ballot labels for accuracy and assure that the appropriate ballot labels are designated for each voting precinct.
(2) The total number of ballot cards printed and the number packaged for each precinct and the requirements for ballot colors and packaging are to conform as nearly as possible to the requirements for paper ballots. Official ballot cards printed and packaged for the various precincts are to be delivered to the clerk of the ~~circuit court~~ county commission at least twenty-eight days prior to the election.
(3) The necessary number of ballot cards, ballot labels, sample ballots, and other supplies necessary for absentee voting are to be delivered to the clerk of the county commission at least forty-two days prior to the election. The clerk shall immediately check the ballot labels to assure their accuracy and shall place them in vote recording devices which are clearly designated for the proper district or party, or both, for the purpose of absentee voting.
(4) ~~When the ballot labels are delivered to the clerk of the county commission, the clerk shall place them in the vote recording devices in the proper order.~~ The clerk of the county commission shall retain the remainder of the ballot labels for each machine for use in an emergency.
(5) The clerk of the county commission shall ~~then~~ seal the vote recording devices so as to prevent tampering with ballot labels, and enter in an appropriate book, opposite the number of each precinct, the identifying or distinguishing number of the specific vote recording device or devices to be used in that precinct.

§3-4A-13. Inspection of ballots and vote recording devices; duties of county commission, ballot commissioners and election commissioners; records relating to ballots and vote recording devices; receipt of election materials by ballot commissioners.

When the clerk of the county commission has completed the preparation of the ballots and vote recording devices as provided in sections eleven, eleven-a and twelve of this article and as provided in section twenty-one, article one of this chapter, and not later than seven days before the day of the election, he or she shall notify the members of the county commission and the ballot commissioners that the ballots and devices, where applicable, are ready for use. Thereupon the members of the county commission and the ballot commissioners shall convene at the office of the clerk or at such other place wherein the vote recording devices, where applicable, and ballots are stored, not later than five days before the day of the election, and shall inspect the devices and the ballots to determine whether the requirements of this article have been met. Notice of the place and time of such inspection shall be published, no less than three days prior thereto, as a Class I-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for ~~such~~ the publication shall be the county involved. Any candidate and one representative of each political party on the ballot may be present during such examination. If the devices, where applicable, and ballots are found to be in proper order, the members of the county commission and the ballot commissioners shall, where applicable, endorse their approval in the book in which the clerk entered the numbers of the devices opposite the numbers of the precincts. The vote recording devices and the ballots shall then be secured in double lock rooms. The ~~county~~ clerk and the president or president pro tempore of the county commission shall each have a key. The rooms shall be unlocked only in their presence and only for the removal of the devices, where applicable, and the ballots for transportation to the polls. Upon such removal of the devices and ballots, the ~~county~~ clerk and president or president pro tempore of the county commission shall certify in writing signed by them that the devices, where applicable, and packages of ballots were found to be sealed when removed for transportation to the polls.
Not later than one day before the election the election commissioner of each precinct who shall have been previously designated by the ballot commissioners, shall attend at the office of the ~~clerks of the circuit court and~~ clerk of the county commission ~~of such county~~ to receive the necessary election records, books and supplies required by law. ~~Such~~ The election commissioners shall receive the per diem mileage rate prescribed by law for this service. ~~Such~~ The election commissioners shall give the ballot commissioners a sequentially numbered written receipt, on a printed form, provided by the clerk of the county commission, for such records, books and supplies. ~~Such~~ The receipt shall be prepared in duplicate. One copy of the receipt shall remain with the clerk of the county commission and one copy shall be delivered to the president or president pro tempore of the county commission.
§3-4A-13a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at the offices of the ~~clerks~~ clerk of the county commission ~~and circuit court~~ by the close of the ~~clerks' offices~~ clerk's office on the day prior to any election, the board of ballot commissioners, the chairman thereof or the ~~circuit~~ clerk of the county commission shall cause all necessary election records, books and supplies to be delivered by special messenger in the same manner and under the same terms and conditions as is provided ~~for~~ the dispatch of the special messenger under the provisions of section twenty-five, article one of this chapter.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.

§3-5-7. Filing announcements of candidacies; requirements; withdrawal of candidates when section applicable.

Any person who is eligible and seeks to hold an office or political party position to be filled by election in any primary or general election held under the provisions of this chapter shall file a certificate of announcement declaring as a candidate for the nomination or election to the office.
(a) The certificate of announcement shall be filed as follows:
(1) With the Secretary of State, if it be an office or political position to be filled by the voters of more than one county;
(2) With the clerk of the ~~circuit court~~ county commission, if it be for an office to be filled by the voters of a single county or of a subdivision less than a county;
(3) With the recorder or city clerk if it be for an office to be filled by the voters of a municipality.
The certificate of announcement shall be filed with the proper officer not earlier than the second Monday in January next preceding the primary election day, and not later than the last Saturday in January next preceding the primary election day, and must be received before midnight, eastern standard time, of that day or, if mailed, shall be postmarked by the United States Postal Service before that hour.
(b) The certificate of announcement shall be in a form prescribed by the Secretary of State on which the candidate shall make a sworn statement before a notary public or other officer authorized to give oaths, containing the following information:
(1) The date of the election in which the candidate seeks to appear on the ballot;
(2) The name of the office sought; the district, if any; and the division, if any;
(3) The legal name of the candidate, and the exact name the candidate desires to appear on the ballot, subject to limitations prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate is a legally qualified voter of that county; and the magisterial district of residence for candidates elected from magisterial districts or under magisterial district limitations;
(5) The specific address designating the location at which the candidate resides at the time of filing, including number and street or rural route and box number, and city, state and zip code;
(6) For partisan elections, the name of the candidate's political party, and a statement that the candidate is a member of and affiliated with that political party as is evidenced by the candidate's current registration as a voter affiliated with that party, and that the candidate has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement;
(7) For candidates for delegate to national convention, the name of the presidential candidate to be listed on the ballot as the preference of the candidate on the first convention ballot; or, a statement that the candidate prefers to remain 'uncommitted';
(8) A statement that the person filing the certificate of announcement is a candidate for the office in good faith;
(9) The words 'subscribed and sworn to before me this ______ day of _____________, 19 20____,' and a space for the signature of the officer giving the oath.
The Secretary of State or the board of ballot commissioners, as the case may be, may refuse to certify the candidacy or remove the certification of the candidacy upon receipt of a certified copy of the voter's registration record of the candidate evidencing that the candidate was registered as a voter in a party other than the one named in the certificate of announcement during the sixty days immediately preceding the filing of the certificate: Provided, That unless a signed formal complaint of violation of this section and the certified copy of the voter's registration record of the candidate be filed with the officer receiving that candidate's certificate of announcement no later than ten days following the close of the filing period, the candidate shall not be refused certification for this reason.
(c) The certificate of announcement shall be subscribed and sworn to by the candidate before some officer qualified to administer oaths, who shall certify the same. Any person who knowingly provides false information on the certificate is guilty of false swearing and shall be punished as set forth in section three, article nine of this chapter.
(d) Any candidate for delegate to a national convention may change his or her statement of presidential preference by notifying the Secretary of State by letter received by the Secretary of State no later than the third Tuesday following the close of candidate filing. When the rules of the political party allow each presidential candidate to approve or reject candidates for delegate to convention who may appear on the ballot as committed to that presidential candidate, the presidential candidate or the candidate's committee on his or her behalf may file a list of approved or rejected candidates for delegate, and the Secretary of State shall list as 'uncommitted' any candidate for delegate who is disapproved by the presidential candidate.
(e) No person shall be a candidate for more than one office or office division at any election: Provided, That a candidate for an office may also be a candidate for president of the United States, for membership on a political party executive committee or for delegate to a political party national convention. Notwithstanding the provisions of this section, nothing shall prohibit a candidate from jointly running for or holding the offices of county clerk and circuit clerk in those counties which operate a joint clerkship system.
(f) Any candidate who files a certificate of announcement for more than one office or division and does not withdraw, as provided by section eleven, article five of this chapter, from all but one office prior to the close of the filing period shall not be certified by the Secretary of State or placed on the ballot for any office by the board of ballot commissioners.
The provisions of this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-one shall apply to the primary election held in the year one thousand nine hundred ninety-two and every primary election held thereafter. The provisions of this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-eight shall apply to the primary election held in the year two thousand and every primary election held thereafter.
§3-5-8. Filing fees and their disposition.
Every person who becomes a candidate for nomination for or election to office in any primary election shall, at the time of filing the certificate of announcement as required in this article, pay a filing fee as follows:
(a) A candidate for president of the United States, for vice president of the United States, for United States Senator, for member of the United States House of Representatives, for Governor and for all other state elective offices shall pay a fee equivalent to one percent of the annual salary of the office for which the candidate announces: Provided, That the filing fee for any candidate for president or vice president of the United States shall not exceed two thousand five hundred dollars commencing with the two thousand four filing period;
(b) A candidate for the office of judge of a circuit court and judge of a family court shall pay a fee equivalent to one percent of the total annual salary of the office for which the candidate announces;
(c) A candidate for member of the House of Delegates shall pay a fee of one-half percent of the total annual salary of the office and a candidate for State Senator shall pay a fee of one percent of the total annual salary of the office;
(d) A candidate for sheriff, prosecuting attorney, circuit clerk, county clerk, assessor, member of the county commission and magistrate shall pay a fee equivalent to one percent of the annual salary, excluding any additional compensation or commission of the office for which the candidate announces. A candidate for county board of education shall pay a fee of twenty-five dollars. A candidate for any other county office shall pay a fee of ten dollars;
(e) Delegates to the national convention of any political party shall pay the following filing fees:
A candidate for delegate-at-large shall pay a fee of twenty dollars; and a candidate for delegate from a congressional district shall pay a fee of ten dollars;
(f) Candidates for members of political executive committees and other political committees shall pay the following filing fees:
A candidate for member of a state executive committee of any political party shall pay a fee of twenty dollars; a candidate for member of a county executive committee of any political party shall pay a fee of ten dollars; and a candidate for member of a congressional, senatorial or delegate district committee of any political party shall pay a fee of five dollars.
Candidates filing for an office to be filled by the voters of one county shall pay the filing fee to the clerk of the ~~circuit~~ county ~~court~~ commission and candidates filing for an office to be filled by the voters of more than one county shall pay the filing fee to the Secretary of State at the time of filing their certificates of announcement and no certificate of announcement shall be received until the filing fee is paid.
All moneys received by ~~such~~ the clerk from ~~such~~ the fees shall be credited to the general county fund. Moneys received by the Secretary of State from fees paid by candidates for offices to be filled by all the voters of the state shall be deposited in a special fund for that purpose and shall be apportioned and paid by him or her to the several counties on the basis of population and that received from candidates from a district or judicial circuit of more than one county shall be apportioned to the counties comprising the district or judicial circuit in like manner. When such moneys are received by sheriffs, it shall be credited to the general county fund.

§3-5-8a. Nominating petitions as alternatives to filing fees; oath of impecuniosity required; petition in lieu of payment of filing fee.

A candidate seeking nomination to any office who is unable to pay the filing fee may qualify through the following petition process in lieu of payment of the filing fee.
The candidate shall file an oath with the appropriate office required under section eight of this article stating that he or she is unable to pay the filing fee due to a lack of financial resources. Such oath shall be filed not earlier than the second Monday in January next preceding the primary election day.
Upon receipt of the written oath the receiving officer shall provide the candidate with in-lieu- of-filing-fee petition forms and instructions on gathering the required signatures. The number of required signatures shall be four qualified voters for each whole dollar of the filing fee: Provided, That the filing fee shall be waived, in whole and not in part. Only signatures of voters registered in the county, district or other political division represented by the office sought may be solicited. Solicitors of signatures shall also be residents of the county, district or other geographical entity represented by the office sought: Provided, however, That for offices to be filled by the voters of more than one county, separate petition forms shall be used for the signatures of qualified voters from each county.
No qualified voter forfeits his or her opportunity to vote in the primary election by signing an in-lieu-of-filing-fee petition.
The candidate may submit a greater number of signatures to allow for subsequent losses due to invalidity of some signatures. The ~~county~~ clerk of the county commission may not be required to determine the validity of a greater number of signatures than that required by this section.
Signatures obtained on an in-lieu-of-filing-fee petition shall not be counted toward the number of voters required to sign a nomination certificate in accordance with section twenty-three of this article.
The candidate shall file all in-lieu-of-filing-fee petitions with the required number of valid signatures with the ~~county~~ clerk of the county commission or Secretary of State, as the case may be, not later than the last date required by law for filing declarations of candidacies and payment of the filing fee.
The oath and forms required by this section shall be prescribed by the Secretary of State.
§3-5-9. Certification and posting of candidacies.
By the eighty-fourth day next preceding the day fixed for the primary election, the Secretary of State shall arrange the names of all candidates, who have filed announcements with him or her, as provided in this article, and who are entitled to have their names printed on any political party ballot, in accordance with the provisions of this chapter, and shall forthwith certify the same under his or her name and the lesser seal of the state, and file the same in his or her office.
~~Such~~ The certificate of candidates shall show: (1) The name and residence of each candidate; (2) the office for which he or she is a candidate; (3) the name of the political party of which he or she is a candidate; (4) upon what ballot his or her name is to be printed; and (5) in the case of a candidate for delegate to the national convention of any political party, the name of the person the candidate prefers as the presidential nominee of his or her party, or if he or she has no preference, the word 'uncommitted'.
The Secretary of State shall post a duplicate of ~~such~~ the certificate in a conspicuous place in his or her office and keep same posted until after the primary election.
Immediately upon completion of such certification, the Secretary of State shall ascertain therefrom the candidates whose names are to appear on the primary election ballots in the several counties of the state and shall certify to the clerk of the ~~circuit court~~ county commission in each county the certificate information relating to each of the candidates whose names are to appear on the ballot in ~~such~~ that county. He or she shall transmit ~~such~~ the certificate to the several clerks by registered or certified mail, but, in emergency cases, he may resort to other reliable and speedy means of transmission which may be available so that such certificates shall reach the several clerks by the seventieth day next preceding such primary election day.
The provisions of this section shall apply to the primary election held in the year one thousand nine hundred eighty-six and every primary election held thereafter.
§3-5-11. Withdrawals; filling vacancies in candidacy; publication.
(a) A candidate who has filed a certificate of announcement and wishes to withdraw and decline to stand as a candidate for the office shall file a signed and notarized statement of withdrawal with the same officer with whom the certificate of announcement was filed. If ~~such~~ the statement of withdrawal is received not later than the third Tuesday following the close of candidate filing, the name of a candidate who files that statement of withdrawal may not be printed on the ballot. No candidate who files a statement of withdrawal after that time may have his or her name removed from the ballot.
(b) Upon request of the candidate's family, the board of ballot commissioners may remove the name of a candidate who dies before the ballots are printed. If a candidate dies after the ballots are printed but before the election, the clerk of the ~~circuit court~~ county commission shall give a written notice which shall be posted with the sample ballot at each precinct with the county to the following effect: 'To the voter: (name) of (residence), a candidate for (office) is deceased.'
(c) If after the time is closed for announcing as a candidate there is a vacancy on the ballot caused by failure of any person of a party to file for each available seat of each available office, the executive committee of the party for the political division within which such candidate was to be voted for, or its chair if the committee fails to act, may fill the vacancy and certify the candidate named to the appropriate filing officer. Certification of the appointment by the executive committee or its chair, the candidate's certificate of announcement, and the filing fee must be received by the appropriate filing officer as follows: For an appointment by an executive committee, no later than the second Friday following the close of filing, for an appointment by its chair, no later than the third Tuesday following the close of filing. A candidate appointed to fill a vacancy on the ballot under this subsection shall have his or her name printed on the primary ballot for that party.
§3-5-12. Official and sample ballots; color.
There shall be a separate ballot printed on different colored paper, for each political party participating in the primary election, ~~and~~ the ballot of no two parties ~~shall~~ may be of the same color or tint. The Secretary of State shall select and determine the color of the paper of the ballot of each of the parties, and shall notify the clerk of the ~~circuit court~~ county commission of each county thereof, at the time he or she certifies the names of the candidates of the various parties to ~~said~~ the clerk, as herein provided.
A different color of paper shall be selected and designated by the Secretary of State for each party. ~~and the~~ The sample ballots of each party shall be of a different color than the official ballot and of a different color from one another. ~~and there~~ There shall be printed across the face of such sample ballot in large letters the words 'sample ballot'. ~~and no~~ No sample ballot shall be voted or counted in any election.
§3-5-13a. Order of offices and candidates on the ballot; uniform drawing date.
(a) The order of offices for state and county elections on all ballots within the state shall be as prescribed herein. When the office does not appear on the ballot in an election, then it shall be omitted from the sequence. When an unexpired term for an office appears on the ballot along with a full term, the unexpired term shall appear immediately below the full term.
NATIONAL TICKET: President (and Vice President in the general election), United States Senator, member of the United States House of Representatives
STATE TICKET: Governor, Secretary of State, Auditor, Treasurer, Commissioner of Agriculture, Attorney General, Justice of the Supreme Court of Appeals, State Senator, member of the House of Delegates, circuit judge in multicounty districts, family court judge in multicounty districts, any other multicounty office, state executive committee
COUNTY TICKET: Circuit judge in single-county districts, family court judge in single- county districts, clerk of the circuit court, county commissioner, clerk of the county commission, prosecuting attorney, sheriff, assessor, magistrate, surveyor, congressional district executive committee, senatorial district executive committee in multicounty districts, delegate district executive committee in multicounty districts
NATIONAL CONVENTION: Delegate to the national convention -- at-large, delegate to the national convention -- congressional district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one person has filed a certificate of announcement, the arrangement of names for all offices shall be determined by lot according to the following provisions:
(1) On the fourth Tuesday following the close of the candidate filing, beginning at nine o'clock a. m., a drawing by lot shall be conducted in the office of the clerk of the ~~circuit court~~ county commission in each county. Notice of the drawing shall be given on the form for the certificate of announcement and no further notice shall be required. The clerk of the ~~circuit court~~ county commission shall superintend and conduct the drawing and the method of conducting the drawing shall be prescribed by the Secretary of State.
(2) Except as provided herein, the position of each candidate within each office division shall be determined by the position drawn for that candidate individually: Provided, That if fewer candidates file for an office division than the total number to be nominated or elected, the vacant positions shall appear following the names of all candidates for the office.
(3) Candidates for delegate to national convention who have filed a commitment to a candidate for president shall be listed alphabetically within the group of candidates committed to the same candidate for president and uncommitted candidates shall be listed alphabetically in an uncommitted category. The position of each group of committed candidates and uncommitted candidates shall be determined by lot by drawing the names of the presidential candidates and for an uncommitted category.
(4) A candidate or the candidate's representative may attend the drawings.
§3-5-18. Disposition of certificates of results.
The certificates of the board of canvassers made pursuant to the preceding section shall be by them disposed of as follows: One of the certificates showing the votes received by each candidate of each party for each office to be filled by the voters of a political division greater than a county, including members of the State Executive Committee, shall be filed with the Secretary of State, and ~~by him~~ preserved in his or her office, and a copy thereof filed in the office of the clerk of the ~~circuit court~~ county commission of the county of such board, to be preserved by ~~such~~ the clerk, and which shall be open to public inspection; one certificate showing the votes received by each candidate of each party for each office to be filled by the voters of the county or magisterial district within such county, including members of the county executive committee, shall be filed with the clerk of the ~~circuit court~~ county commission, and ~~by him~~ preserved in his or her office. If requested, the board of canvassers shall furnish to the county chairman of each political party a certificate showing the number of votes received by each of the candidates of such party in the county or any magisterial district therein.
The Secretary of State shall certify, under the seal of the state, to the clerk of the ~~circuit court~~ county commission of each county in which a candidate is to be voted for, the name of the candidate of each political party receiving the highest number of votes in the political division in which he or she is a candidate, and who is entitled to have his or her name placed on the official ballot in the general election as the nominee of the party for such office. The Secretary of State shall also certify in the same manner the names of all candidates nominated by political parties or by groups of citizens, not constituting a political party, in any manner provided for making such nominations in this chapter.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of candidates for office nominated at the primary election or by appointment under the provisions of section eleven of this article, the vacancies may be filled, subject to the following requirements and limitations:
(1) Each appointment made under this section shall be made by the executive committee of the political party for the political division in which the vacancy occurs: Provided, That if the executive committee holds a duly called meeting in accordance with section nine, article one of this chapter but fails to make an appointment or fails to certify the appointment of the candidate to the proper filing officer within the time required, the chairperson of the executive committee may make the appointment not later than two days following the deadline for the executive committee.
(2) Each appointment made under this section is complete only upon the receipt by the proper filing officer of the certificate of appointment by the executive committee, or its chairperson, as the case may be, the certificate of announcement of the candidate as prescribed in section seven of this article and, except for appointments made under subdivision (4), (5), (6) or (7) of this subsection, the filing fee or waiver of fee as prescribed in section eight or eight-a of this article. The proper filing officer is the officer with whom the original certificate of nomination is regularly filed for that office.
(3) If a vacancy in nomination is caused by the failure of a candidate to file for an office, or by withdrawal of a candidate no later than the third Tuesday following the close of candidate filing pursuant to the provisions of section eleven of this article, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than the Thursday preceding the primary election.
(4) If a vacancy in nomination is caused by the disqualification of a candidate and the vacancy occurs not later than eighty-four days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer not later than seventy- eight days before the general election. A candidate may be determined ineligible if a written request is made by an individual with information to show a candidate's ineligibility to the State Election Commission no later than ninety-five days before the general election explaining grounds why a candidate is not eligible to be placed on the general election ballot or not eligible to hold the office, if elected. The State Election Commission shall review the reasons for the request. If the commission finds the circumstances warrant the disqualification of the candidate, the Commission may authorize appointment by the executive committee to fill the vacancy. Upon receipt of the authorization a nominee may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of the candidate and if the vacancy occurs not later than eighty-four days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election.
(6) If a vacancy in nomination is caused by the withdrawal of the candidate no later than ninety-eight days before the general election due to extenuating personal circumstances which will prevent the candidate from serving in the office if elected and if the candidate or the chairperson of the executive committee for the political division applies in writing to the State Election Commission no later than ninety-five days before the general election for permission to remove the candidate's name from the general election ballot, the State Election Commission shall review the reasons for the request. If the Commission finds the circumstances warrant the withdrawal of the candidate, the Commission shall authorize appointment by the executive committee to fill the vacancy. Upon receipt of the authorization, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election.
(7) If a vacancy in nomination is caused by the death of the candidate occurring no later than twenty-five days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than twenty-one days following the date of death or no later than twenty-two days before the general election, whichever date occurs first.
(b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a partisan office or position other than political party executive committee, which creates an unexpired term for a position which would not otherwise appear on the ballot in the general election, and the vacancy occurs after the close of candidate filing for the primary election but not later than eighty-four days before the general election, a nominee of each political party may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election. Appointments shall be filed in the same manner as provided in subsection (a) of this section, except that the filing fee shall be paid before the appointment is complete.
(c) When a vacancy occurs in the board of education after the close of candidate filing for the primary election but not later than eighty-four days before the general election, a special candidate filing period shall be established. Candidates seeking election to any unexpired term for board of education shall file a certificate of announcement and pay the filing fee to the clerk of the ~~circuit court~~ county commission no earlier than the first Monday in August and no later than seventy-seven days before the general election.
§3-5-23. Certificate nominations; requirements and control; penalties.
(a) Groups of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections. In ~~such~~ the case, the candidate or candidates, jointly or severally, shall file a declaration with the Secretary of State if the office is to be filled by the voters of more than one county, or with the clerk of the ~~circuit court~~ county commission of the county if the office is to be filled by the voters of one county or political subdivision thereof; ~~such~~ the declaration to be filed at least thirty days prior to the time of filing the certificate provided by section twenty-four of this article: Provided, That the deadline for filing the certificate for persons seeking ballot access as a candidate for the office of president or vice president shall be filed not later than the first day of August preceding the general election. At the time of filing of ~~such~~ the declaration each candidate shall pay the filing fee required by law, and if ~~such~~ the declaration is not so filed or the filing fee so paid, the certificate shall not be received by the Secretary of State, or clerk of the ~~circuit court~~ county commission, as the case may be.
(b) The person or persons soliciting or canvassing signatures of duly qualified voters on ~~such~~ the certificate or certificates, may solicit or canvass duly registered voters residing within the county, district or other political division represented by the office sought, but must first obtain from the clerk of the county commission credentials which must be exhibited to each voter canvassed or solicited, which credentials may be in the following form or effect:
State of West Virginia, County of ................., ss:
This certifies that ~~..............................., whose post-office address is ...............................,~~ the holder of this credential is hereby authorized to solicit and canvass duly registered voters residing in .................. (here place the county, district or other political division represented by the office sought) to sign a certificate purporting to nominate ............................ (here place name of candidate heading list on certificate) for the office of .......................... and others, at the general election to be held on ..................., 20....
Given under my hand and the seal of my office this ............... day of ........................., 20......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application made as herein provided, shall issue such credentials and shall keep a record thereof.
(c) The certificate shall be personally signed by duly registered voters, in their own proper handwriting or by their marks duly witnessed, who must be residents within the county, district or other political division represented by the office sought wherein ~~such~~ the canvass or solicitation is made by the person or persons duly authorized. ~~Such~~ The signatures need not all be on one certificate. The number of ~~such~~ signatures shall be equal to not less than two percent of the entire vote cast at the last preceding general election for the office in the state, district, county or other political division for which the nomination is to be made, but in no event shall the number be less than twenty-five. The number of ~~such~~ signatures shall be equal to not less than two percent of the entire vote cast at the last preceding general election for any statewide, congressional or presidential candidate, but in no event shall the number be less than twenty-five. Where two or more nominations may be made for the same office, the total of the votes cast at the last preceding general election for the candidates receiving the highest number of votes on each ticket for ~~such~~ the office shall constitute the entire vote. No signature on ~~such~~ a certificate shall be counted unless it be that of a duly registered voter of the county, district or other political division represented by the office sought wherein ~~such~~ the certificate was presented. It shall be the duty of those soliciting signatures to read to each voter whose signature is solicited the statement written on the certificate which gives notice that no person signing such certificate shall vote at any primary election to be held to nominate candidates for office to be voted for at the election to be held next after the date of signing such certificate.
(d) ~~Such~~ The certificates shall state the name and residence of each of ~~such~~ the candidates; that he or she is legally qualified to hold ~~such~~ the office; that the subscribers are legally qualified and duly registered as voters and desire to vote for ~~such~~ the candidates; and may designate, by not more than five words, a brief name of the party which ~~such~~ the candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of ~~such~~ the certificates shall have their names placed on the official ballot as candidates, as if otherwise nominated under the provisions of this chapter.
The Secretary of State shall prescribe the form and content of the nomination certificates to be used for soliciting signatures. The content shall include the language to be used in giving written and oral notice to each voter that signing of the nominating certificate forfeits that voter's right to vote in the corresponding primary election.
Offices to be filled by the voters of more than one county shall use separate petition forms for the signatures of qualified voters for each county.
(e) The Secretary of State, or the clerk of the ~~circuit court~~ county commission, as the case may be, may investigate the validity of ~~such~~ the certificates and the signatures thereon. ~~and if upon such~~ If upon investigation there may be doubt as to the legitimacy and the validity of ~~such~~ the certificate, he or she may request the Attorney General of the state, or the prosecuting attorney of the county, to institute a quo warranto proceeding against the nominee or nominees by certificate to determine his or their right to ~~such~~ the nomination to public office, and upon request being made, the Attorney General or prosecuting attorney shall institute ~~such~~ the quo warranto proceeding. The clerk of the county commission shall, at the request of the Secretary of State or the clerk of the circuit court, compare the information from any certificate to the county voter registration records in order to assist in determining the validity of any certificates.
(f) Any person violating the provisions of this section, in addition to penalties prescribed elsewhere for violation of this chapter, is guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars, or confined in ~~the county or regional~~ jail for not more than one year, or both, in the discretion of the court: Provided, That no criminal penalty may be imposed upon anyone who signs a nomination certificate and votes in the primary election held after the date the certificate was signed.
§3-5-24. Filing of nomination certificates; time.
All certificates nominating candidates for office under the preceding section, including a candidate for the office of presidential elector, shall be filed, in the case of a candidate to be voted for by the voters of the entire state or by any subdivision thereof other than a single county, with the Secretary of State, and in the case of all candidates for county and magisterial district offices, including all offices to be filled by the voters of a single county, with the clerk of the ~~circuit court~~ ~~of the~~ county commission, not later than the day preceding the date on which the primary election is held. After ~~such~~ that date no ~~such~~ certificate shall be received by such officers.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-4. Late nominations; stickers.
If a nomination to fill a vacancy be is made by a political party executive committee or, on its failure to so act within the time prescribed by law, be is made by the chairman of ~~such~~ the committee, and be certified to the clerk of the ~~circuit court~~ county commission after the ballots to be used at the ensuing election shall have been printed, the clerk shall forthwith lay such certificates before the ballot commissioners who, without delay, shall prepare, or cause to be prepared, and deliver, or cause to be delivered, to the election commissioners of each precinct in which ~~such~~ the candidate is to be voted for, a number of stickers, containing only the name of ~~such~~ the candidate, at least equal to the total number of ballots provided for ~~such~~ the precinct; but no such stickers shall be furnished to or received by any person except a commissioner of election. It ~~shall be~~ is the duty of the commissioners holding the election to deliver such stickers to the poll clerks, who shall, in the presence of the election commissioners, affix one of ~~such~~ the stickers in a careful manner at the proper place for the name of the candidate, upon each ballot to be voted at the election, before the poll clerks ~~shall~~ sign their names on the ballots. ~~Such~~ The stickers may be delivered to the election officers, by the clerk of the county ~~court~~ commission, with the ballots, poll books and other supplies.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes to an office, except delegate to national convention, which is to be filled in a primary, general or special election held under the provisions of this chapter, shall file a write-in candidate's certificate of announcement as provided in this section. No certificate of announcement may be accepted and no person may be certified as a write-in candidate for a political party nomination for any office or for election as delegate to national convention.
(a) The write-in candidate's certificate of announcement shall be in a form prescribed by the Secretary of State on which the candidate shall make a sworn statement before a notary public or other officer authorized to give oaths containing the following information:
(1) The name of the office sought and the district and division, if any;
(2) The legal name of the candidate and the first and last name by which the candidate may be identified in seeking the office;
(3) The specific address designating the location at which the candidate resides at the time of filing, including number and street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of announcement is a candidate for the office in good faith; and
(5) The words 'subscribed and sworn to before me this ______ day of _____________, ____' and a space for the signature of the officer giving the oath.
(b) The certificate of announcement shall be filed with the filing officer for the political division of the office as prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and received by the proper filing officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this subsection, the certificate of announcement for any office shall be received no later than the close of business on the twenty-first day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates for an office on the ballot resulting from the death of the nominee or from the disqualification or removal of a nominee from the ballot by a court of competent jurisdiction not earlier than the twenty-first day nor later than the fifth day before the general election, the certificate shall be received no later than the close of business on the fifth day before the election or the close of business on the day following the occurrence of the vacancy, whichever is later;
(3) When a vacancy occurs in an elective office which would not otherwise appear on the ballot in the election, but which creates an unexpired term of one or more years which, according to the provisions of this chapter, is to be filled by election in the next ensuing election and the vacancy occurs no earlier than the twenty-first day and no later than the fifth day before the general election, the certificate shall be received no later than the close of business on the fifth day before the election or the close of business on the day following the occurrence of the vacancy, whichever is later.
(d) Any eligible person who files a completed write-in candidate's certificate of announcement with the proper filing officer within the required time shall be certified by that filing officer as an official write-in candidate:
(1) The Secretary of State shall, immediately following the filing deadline, post the names of all official write-in candidates for offices on the ballot in more than one county and certify the name of each official write-in candidate to the clerks of the ~~circuit court~~ county commissions of the appropriate counties.
(2) The clerk of the ~~circuit court~~ county commission shall, immediately following the filing deadline, post the names of all official write-in candidates for offices on the ballot in one county and certify and deliver to ~~the clerk of the county commission and~~ the election officials of the appropriate precincts, the names of all official write-in candidates and the office sought by each for statewide, district and county offices on the ballot in the precinct for which valid write-in votes will be counted and the names shall be posted at the office where absentee voting is conducted and at the precincts in accordance with section twenty, article one of this chapter.
ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-18. Unlawful voting in primary elections; penalties.
Any person voting, in any primary election, any ticket of a party other than that of which he is registered as a member, and any election officer receiving the vote of any such person, knowing, or having reason to believe, that such voter is not a member of the party the ticket of which he is voting~~; or who, having signed or joined in any petition or certificate nominating any candidate for office~~, shall, at the primary election to be held to nominate candidates for the same office, vote at such primary election; shall in each instance be guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than one thousand dollars, or be confined in the county jail for not more than one year, or both, in the discretion of the court.
ARTICLE 10. FILLING VACANCIES.
§3-10-6. Vacancy in office of circuit court clerk.
When a vacancy occurs in the office of clerk of the circuit court, the circuit court by a majority vote of the judges, or the chief judge thereof in vacation, shall fill the same by appointment of a person of the same political party as the officeholder vacating the office until the next general election, or until the completion of the term if the term ends on the thirty-first day of December following the next general election. ~~and the~~ The person so appointed shall hold office until his or her successor is elected and qualified. At ~~such~~ the general election, a clerk shall be elected for the unexpired term if the unexpired term is greater than one year. The circuit court, or the chief judge thereof in vacation, shall cause a notice of ~~such~~ the election to be published prior to ~~such~~ the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty- nine of this code. ~~and the~~ The publication area for ~~such~~ the publication shall be the county. If the vacancy occurs no later than the eighty-fourth day before the primary election held to nominate candidates to be voted for at the general election, at which any ~~such~~ vacancy is to be filled, candidates to fill ~~such~~ the vacancy shall be nominated at ~~such~~ the primary election in accordance with the time requirements and the provisions and procedures prescribed in section eleven, article five of this chapter. If the vacancy occurs after the eighty-fourth day before the primary but not later than the eighty-fourth day before the general election, they shall be nominated by the county executive committee in the manner provided in section nineteen, article five of this chapter, as in the case of filling vacancies in nominations, and the names of the persons, so nominated and certified to the clerk of the ~~circuit court~~ county commission of ~~such~~ the county, shall be placed upon the ballot to be voted at ~~such~~ the next general election."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 647), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Cann, Frich, Kominar, Miley, Stalnaker and H. White.
Absent And Not Voting: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 669) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
S. B. 669 - - " A Bill to amend and reenact §3-1-19, §3-1-20, §3-1-21, §3-1-21a, §3-1-24 and §3-1-25 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-3-2 and §3-3-11 of said code; to amend and reenact §3-4-10, §3-4-12 and §3-4-12a of said code; to amend and reenact §3-4A-12, §3-4A-13 and §3-4A-13a of said code; to amend and reenact §3-5-7, §3-5-8, §3-5- 8a, §3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and §3-5-24 of said code; to amend and reenact §3-6-4 and §3-6-4a of said code; to amend and reenact §3-9-18 of said code; and to amend and reenact §3-10-6 of said code, all relating to the regulation and control of elections; transferring certain election duties from the circuit clerk to the clerk of the county commission; removing unconstitutional provisions regarding nominating petitions; providing that the county clerk shall assist the Secretary of State in determining the validity of nominating petitions; and removing the prohibition on a person signing or joining in any petition or certificate nominating any candidate for office from voting in a primary election."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
H. B. 2522, Relating to creating and licensing mini-distilleries.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section five-b, line eleven, by striking out the word "further" and inserting in lieu thereof the word "however".
On page three, section five-b, line thirteen, by striking out the words "shall be" and inserting in lieu thereof the word "is".
On page five, section three, line fourteen, by striking out the word "thereof" and inserting in lieu thereof the words "of the wine".
And,
On pages six and seven, section three-a, lines twenty-five through thirty-five, by striking out all of subsection (e) and inserting in lieu thereof a new subsection (e), to read as follows:
"(e) Limitations on licensees. -- No mini-distillery may sell more than three thousand gallons of product at the mini-distillery location the initial two years of licensure. The mini-distillery may increase sales at the mini-distillery location by two thousand gallons following the initial twenty-four month period of licensure, and may increase sales at the mini-distillery location each subsequent twenty-four month period by two thousand gallons, not to exceed ten thousand gallons a year of total sales at the mini-distillery location. No licensed mini-distillery may produce more than twenty thousand gallons per calendar year at the mini-distillery location. No more than one mini-distillery licence may be issued to a single person or entity."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 648), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Hamilton, Howard, Lane, Leggett, Overington, Sobonya, Stevens and Sumner.
Absent And Not Voting: Rick Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2522) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 289, Allowing fill material in waters of state; definition,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B.289) was taken up for immediate consideration, read a second time and then ordered to third reading.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 58, Requesting the Joint Committee on Government and Finance to study the feasibility of impounding and auctioning off a motor vehicle in the event that the owner has been convicted of driving with no insurance three or more times,
H. C. R. 65, Requesting the vision of Highways name Bridge 4827 the " Sergeant George F. Eubanks Memorial Bridge",
H. C. R. 91, Requesting that the Joint Committee on Government and Finance to conduct a study of certain subjects relating to the State's Natural Resources,
H. C. R. 92, Requesting the Joint Committee on Government and Finance to conduct a study of the production of bio-diesel fuels,
H. C. R. 94, Requesting the Joint Committee on Government and Finance to study the actions that may be undertaken to ensure the competitiveness of West Virginia's coal industry,
And,
S. C. R. 42, Urging Congress provide domestic energy policy and requesting Joint Committee on Government and Finance study energy policy for state,
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolutions (H. C. R. 58, H. C. R. 65, H. C. R. 91, H. C. R. 92 and S. C. R.) were taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 2:47 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:15 p.m., and reconvened at that time.
Conference Committee Report Availability
At 5:22 p.m., the Clerk announced the availability in his office of the reports of the Committees of Conference on S. B. 604, Establishing method for projecting increase in net enrollment for each school district, and Com Sub. for S. B. 583, Relating to appealing orders from family court to circuit court.
Conference Committee Report
Delegate Long, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2492, Providing a funding mechanism for teen court programs.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses on the amendment of the House to of Delegates to Com. Sub. for H. B. 2492, having met, after full and free conference, have agreed to recommend to their respective houses, as follows:
That the Senate has agreed to accept the House amendment, with the following amendment to the House amendment:
On page three, section thirteen-d, subsection (d), line nine, following the word "program", by striking a comma and the words "less five percent which shall be retained as fee income to the office of the clerk of the municipal, magistrate or circuit court processing the case", followed by a period.
Respectfully submitted,
Marshall Long,

Jon Blair Hunter,

Bonnie Brown,

Clark S. Barnes,

Greg Howard,

Dan Foster,

Conferees on the part
Conferees on the part

of the House of Delegates.

of the Senate.

On motion of Delegate Long, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 649), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Rick Thompson.
Absent And Not Voting: Fragale, Romine and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2492) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference on and the passage, as amended by said report, of
Com. Sub. for S. B. 717, Permitting Wetzel County Hospital provide alternate retirement plan for new employees.
Conference Committee Report
Delegate Stalnaker, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for S. B. 717, Permitting Wetzel County Hospital provide alternate retirement plan for new employees.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the House to Engrossed Committee Substitute for Senate Bill No. 717 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to section eighteen and agree to the same as follows:
"That §5-10-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted, to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires or dies, he or she ceases to be a member. When a member leaves the employ of a participating public employer for any other reason, he or she ceases to be a member and forfeits service credited to him or her at that time. If he or she becomes reemployed by a participating public employer he or she shall be reinstated as a member of the retirement system and his or her credited service last forfeited by him or her shall be restored to his or her credit: Provided, That he or she must be reemployed for a period of one year or longer to have the service restored: Provided, however, That he or she returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together with regular interest on the withdrawn amount from the date of withdrawal to the date of repayment, and that the repayment begins within two years of the return to employment and that the full amount is repaid within five years of the return to employment.
(b) The Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center, and their successors in interest, shall provide for their employees a pension plan in lieu of the Public Employees Retirement System during the existence of the named mental health centers and their successors in interest.
(c) The administrative bodies of the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center shall, on or before the first day of May, one thousand nine hundred ninety-seven, give written notice to each employee who is a member of the Public Employees Retirement System of the option to withdraw from or remain in the system. The notice shall include a copy of this section and a statement explaining the member's options regarding membership. The notice shall include a statement in plain language giving a full explanation and actuarial projection figures in support of the explanation regarding the individual member's current account balance, vested and nonvested, and his or her projected return upon remaining in the public employees retirement system until retirement, disability or death, in comparison with the projected return upon withdrawing from the Public Employees Retirement System and joining a private pension plan provided by the Community Mental Health Center and remaining therein until retirement, disability or death. The administrative bodies shall keep in their respective records a permanent record of each employee's signature confirming receipt of the notice.
(d) Effective the first day of March, two thousand three, and ending the thirty-first day of December, two thousand four, any member may purchase credited service previously forfeited by him or her and the credited service shall be restored to his or her credit: Provided, That he or she returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together with interest on the withdrawn amount from the date of withdrawal to the date of repayment at a rate to be determined by the Board . The repayment under this section may be made by lump sum or repaid over a period of time not to exceed sixty months. Where the member elects to repay the required amount other than by lump sum, the member is required to pay interest at the rate determined by the Board until all sums are fully repaid.
(e) Effective the first day of July, two thousand five, and ending the thirty-first day of December, two thousand six, any emergency services personnel may purchase service credit for the time period beginning the first day of January, one thousand nine hundred ninety, and ending the thirty-first day of December, one thousand nine hundred ninety-five: Provided, That person was employed as an emergency service person in this state for that time period: Provided, however, That any person obtaining service credit under this subsection is required to pay the employee's share and the employer's share upon his or her actual salary for the years in question plus interest at the assumed actuarial rate of return for the plan year being repurchased.
(f) Jobs for West Virginia's Graduates and their successors in interest shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after the first day of July, two thousand five.
(g) Wetzel County Hospital and their successors in interest shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after the first day of July, two thousand five.
And,
That both houses recede from their respective positions as to the title and agree to the same as follows:
Com. Sub. for S. B. 717 - - "A Bill to amend and reenact §5-10-18 of the Code of West Virginia, 1931, as amended, relating to permitting Wetzel County Hospital and Jobs for West Virginia's Graduates respectively to provide an alternative retirement plan for new employees in lieu of participation in the Public Employees Retirement System; establishing date; and permitting emergency services personnel to purchase service credit for the years one thousand nine hundred ninety to one thousand nine hundred ninety-five; specifying the cost of the service credit; specifying interest rate; and setting forth a limited time period for emergency services personnel to make the purchase."
On motion of Delegate Stalnaker, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 650), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Fragale, Hunt, Romine and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 717) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 651), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Fragale, Leggett, Romine and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 717) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Special Calendar
Third Reading
At the request of Delegate Staton, and by unanimous consent, further consideration of the following bills was then postponed:
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
And,
S. B. 237, Allowing municipalities to increase hotel occupancy tax.
S. B. 561, Authorizing Greater Huntington Park and Recreation District impose fees and issue revenue bonds;on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On recommendation of the Committee on Finance the bill was amended on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"GREATER HUNTINGTON PARK AND RECREATION DISTRICT.
§7. Financing and financial powers.
The park district shall have the following powers to:
(1) Make charges to the public for services offered or goods sold by the park district.
(a) Charges for services may be in the form of, but not limited to: Admission and entrance fees; exclusive use and rental fees; user fees; license and permit fees; equipment rental; program maintenance fees; instructor fees; special accommodation fees; amusement fees; restricted membership fees; and cemetery service fees.
(b) Charges for goods sold may be in the forms of, but not limited to: Beverages and foods; novelties and gifts; clothing; athletic equipment and supplies; cemetery plots, crypts, monuments, memorials, markers, vaults and any other forms of merchandise sold in connection with the burial of the dead; and other items that may pertain to the operation and maintenance of the park district.
(2) Impose upon the users of the park system reasonable service fees in addition to the service fees authorized by paragraph (a), subdivision (1) of this section. As used in this section, 'users' means any persons to whom the park system is made available.
(a) The board of directors of the park district may adopt one or more resolutions establishing the amount and manner of collection of the fees and providing for reasonable penalties for failure to pay service fees. No resolution imposing a service fee is effective until it is ratified by a majority of the legal votes cast by the qualified voters of the district at a primary or general election.
(b) In addition to meeting the ballot and election requirements set forth in subdivision (3) of this section, the ballot question must set forth the service fee, the manner in which it will be imposed and the general use to which the proceeds of the service fee shall be put. From time to time, the board may submit additional resolutions imposing additional service fees to the district's electors for approval pursuant to this section.
(3) Issue revenue bonds or refunding revenue bonds for the district, in the manner prescribed by the applicable provisions of sections seven, ten, twelve and sixteen, article sixteen, chapter eight of the code of West Virginia, 1931, as amended. No revenue bonds, except for refunding revenue bonds, may be issued under this section until all questions connected with the bonds are first submitted to a vote of the qualified electors of the district for which the bonds are to be issued, and receive a majority of all the votes cast for and against the issuance. The ballot question must set forth:
(a) The necessity for issuing the bonds;
(b) Purpose or purposes for which the proceeds of bonds are to be expended;
(c) Total indebtedness, bonded or otherwise;
(d) Amount of the proposed bond issue;
(e) Maximum term of bonds and series;
(f) Maximum rate of interest;
(g) Date of election;
(h) That the park district is authorized to collect fees to provide funds for the payment of the interest upon the bonds and the principal at maturity, and the approximate amount of fees necessary for this purpose.
(i) Notice of any election shall be given by publication, within fourteen consecutive days next preceding the date of the election, of the resolution imposing the service fee as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for publication shall be the district. All of the provisions of the general election laws of this State concerning primary or general elections, when not in conflict with the provisions of this section, shall apply to elections hereunder, insofar as practicable.
~~(2)~~ (4) Annually levy on each one hundred dollars of the assessed valuation of the property taxable in said park district, within the corporate boundaries of the city of Huntington according to the last assessment thereof for state and county purposes, as follows:
On Class I property, one and one-half cents; on Class II property, three cents; on Class IV property, six cents. The park district may levy a lesser amount, in which case the above levies shall be reduced proportionately. These levies shall be made at the time and in the manner provided by article eight, chapter eleven of the Code of West Virginia, one thousand nine hundred thirty-one, as amended; except that the levies shall be included in the maximum rates for the city of Huntington as established by law.
After the park district has made the levy, it shall certify to the finance director of the city of Huntington the amount of the said levy, and the finance director shall thereupon extend the levy upon the tax tickets, and all levies made by the park district shall be collected by the finance director who shall occupy a fiduciary relationship with the park district, and then such levy funds shall be paid to the park district upon written order of the park district signed by the president of the park district and countersigned by the secretary of the park district.
Levies for support, maintenance and operation.
~~(3)~~ (5) In order to ensure adequate support for the maintenance and operation of the park district, the following governing authorities shall, upon written request by the park district, levy annually as follows within the respective taxing districts of the governing authorities, on each one hundred dollars of assessed valuation of the property taxable in the area served by it according to the last assessment for state and county purposes, amounts not exceeding the following amounts for fiscal year beginning the first day of July, one thousand nine hundred eighty-three:
(a) The county commission of Cabell County, for the first year of the act and annually thereafter: Class I, .433 cents; Class II, .866 cents; Class III and Class IV, 1.73 cents.
(b) The county commission of Wayne County, for the first year of the act and annually thereafter; Class I, .0066 cents; Class II, .0132 cents; Class III and Class IV, .0266 cents.
(c) The board of education of the county of Cabell shall provide funds available to the board through special and excess levies for the first year of the act and annually thereafter: Class I, .433 cents; Class II, .866 cents; Class III and Class IV, 1.73 cents.
(d) The city of Huntington, for the first year of the act and annually thereafter: Class I, one and three-tenths cents; Class II, two and six-tenths cents; Class III and Class IV, five and two-tenths cents.
(e) The town of Milton, for the first year of the act and annually thereafter: Class I, one and three-tenths cents; Class II, two and six-tenths cents; Class III and Class IV, five and two- tenths cents.
In addition to the aforesaid amounts which, upon written request by said board, the governing authorities shall levy, each such governing authority may support the park district with any other general or special revenues or excess levies. All income realized by the operation of the park district from any sources other than the above levies shall be used by the board of directors for support of the park district.
All money collected or appropriated by the foregoing governing authorities for park district purposes shall be deposited in a special account of the park district and shall be disbursed by that board for the purpose of operating such park district.
~~(4)~~ (6) Assess the cost of improvements to or construction of streets, sidewalks, sewers, curbs, alleys, public ways or easements, or portions thereof, upon the abutting property owners whose property lies within the park district. Such assessments shall require approval of a majority of the commissioners present and voting and shall be commenced and conducted in such manner as is prescribed by article eighteen, chapter eight of the Code of West Virginia, one thousand nine hundred thirty-one, as amended.
~~(5)~~ (7) The municipalities of Huntington and Milton and the counties of Cabell and Wayne are hereby empowered, and authorized to issue, in the manner prescribed by law, revenue bonds or general obligation bonds for the purpose of raising funds to establish, construct, improve, extend, develop, maintain or operate a system of public parks and recreational facilities for the city or counties, or to refund any bonds of the city or counties, the proceeds of which were expended in the establishing, constructing, improving, extending, developing, maintaining or operating of such public park and recreation system or any part thereof. Any bonds issued for any of the purposes stated in this section shall contain in the title or subtitle thereto the words 'public park and recreation bonds', in order to identify the same, and shall be of such form, denomination and maturity and shall bear such rate of interest as shall be fixed by ordinance of the governing body of the city or counties. The governing body may provide for the issuance of bonds for other lawful purposes of the city or counties in the same ordinance in which provision shall be made for the issuance of bonds under the provisions of this section. The park district shall pay all of the costs and expenses of any election which shall be held to authorize the issuance of public park and recreation bonds only. The costs and expenses of holding an election to authorize the issuance of public park and recreation bonds and bonds for other city or county purposes shall be paid by the park district and the city or counties respectively, in the proportion that the public park and recreation bonds bear to the total amount of bonds authorized.
Whenever the governing body of the city or counties and the requisite majority of the legal votes cast at the election thereon shall authorize in the manner prescribed by law, the issuance of bonds for the purpose of establishing, constructing, improving, extending, developing, maintaining or operating, or any combination of the foregoing, a system of public parks and recreational facilities for the city or counties or for refunding any outstanding bonds, the proceeds of which were applied to any of said purposes, said bonds shall be issued and delivered to the park district to be by it sold in the manner prescribed by law and the proceeds thereof shall be paid into the treasury of the park district and the same shall be applied and utilized by the park district for the purposes prescribed by the ordinance authorizing the issuance of such bonds. In any ordinance for the issuance of bonds for such purposes, it shall be a sufficient statement of the purposes for creating the debt to specify that the same is for the purpose of establishing, constructing, improving, extending, developing, maintaining or operating, or any combination of the foregoing, a public park and recreation system for the city or counties, without specifying the particular establishment, construction, improvement, extension, development, maintenance or operation contemplated; but an ordinance for refunding bonds shall designate the issue and the number of bonds which it is proposed to refund.
~~(6)~~ (8) Sue and be sued; make contracts and guarantees; incur liabilities; borrow or lend money for any time period deemed advisable by the commission, sell, mortgage, lease, exchange, transfer or otherwise dispose of its property; or pledge its property as collateral or security for any time period deemed advisable by the commission.
~~(7)~~ (9) Create trusts of such kind as will expedite the efficient management of the property and other assets owned or controlled by the park district. The trustee, whether individual or corporate, in any such trust shall have a fiduciary relationship with the park district and may be removed by the park district for good cause shown or for a breach of the fiduciary relationship with the park district."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 653), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Hamilton, Lane, Martin, Overington, Perdue, Sumner, Rick Thompson and Walters.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 561) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 622, Clarifying exemption for property used by certain not-for-profit, tax-exempt corporations; on third reading, coming up in regular order, was, at the request of Delegate Staton, an by unanimous consent, postponed until the completion of all items remaining on the calendar.
Com. Sub. for S. B. 666, Relating to exemptions for certain insurance companies from business franchise tax and corporation net income tax; was, at the request of Delegate Staton, and by unanimous consent, consideration of the bill was then postponed until the completion of all items remaining on the calendar.
Second Reading
S. B. 159, Creating Consolidated Local Government Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page twelve, article three, section one, after line nine, by striking out the article title and said section one in its entirety, and inserting in lieu thereof a new section one, to read as follows:

"ARTICLE 3. INITIATING CONSOLIDATION AND ESTABLISHING CHARTER REVIEW COMMITTEE.

§7A-3-1. Initiating consolidation.
(a) Consolidation may be initiated by a petition signed by at least thirty percent of the qualified voters in the affected municipality, county or metro government proposing consolidation: Provided, That in a proposed metro consolidation involving one or more counties and a principal city that the petition must be signed by at least thirty percent of the qualified voters of the unincorporated voters in each county;
(b) The petition shall be submitted to the respective county commission of the affected county or the governing body of a metro government proposing consolidation.
(c) Upon receipt by the respective county commission or the governing body of the metro government of the petition proposing consolidation, the governing body shall, within thirty days, verify the petition proposing consolidation and either oversee the establishment of a charter review committee as provided for in this chapter or reject the petition proposing consolidation for insufficiency.
(d) If the governing body rejects the petition proposing consolidation, the rejection shall be in writing, stating how the insufficiency may be corrected and that the petition may be resubmitted within ninety days."
On page thirteen, section two, after line twenty-six, by striking out said section two in its entirety, and inserting in lieu thereof a new section two, to read as follows:
"§7A-3-2. Municipal charter review committee.
(a) A municipal charter review committee shall be established within thirty days of the county commission verifying the petition proposing consolidation.
(b) A municipal charter review committee shall consist of the following members:
(1) Two government officials or their designees from each affected municipality appointed by their respective governing bodies;
(2) One county commissioner or his or her designee appointed by the county commission from each county where the affected municipalities are located; and
(3) Two or three public members elected during executive session by the other members to make the number of charter review committee members odd.
(c) A municipal charter review committee shall continue to exist until it is dissolved pursuant to the charter or the final disapproval of the charter."
On page fourteen, section three, after line eighteen, by striking out said section three in its entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-3-3. County charter review committee.
(a) A county charter review committee shall be established within thirty days of the county commissions verifying the petition proposing consolidation.
(b) A county charter review committee shall consist of the following members:
(1) Two county commissioners or their designees from each affected county appointed by their respective county commissions; and
(2) Three public members, including one from an unincorporated area, elected during executive session by the other charter review committee members.
(c) A county charter review committee shall continue to exist until it is dissolved pursuant to the charter or the final disapproval of the charter."
On page fifteen, section four, after line fifteen, by striking out said section four in its entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-3-4. Metro charter review committee.
(a) A metro charter review committee shall be established within thirty days of the county commission or the governing body of a metro government verifying the petition proposing consolidation.
(b) For metro consolidation, the metro charter review committee shall consist of the following members:
(1) One government official or his or her designee from each affected municipality appointed by the governing body of the principal city;
(2) If any municipality is located in two counties, then one county commissioner or his or her designee from the county not participating in consolidation appointed by the respective county commission;
(3) Two county commissioners or their designees from each affected county appointed by their respective county commissions; and
(4) Two or three public members, including one from an unincorporated area, elected during executive session by the other members to make the number of charter review committee members odd.
(c) For metro-metro consolidation, the metro charter review committee shall consist of the following members:
(1) One government official or his or her designee from each affected metro government appointed by their respective governing bodies;
(2) If additional counties or municipalities are joining in the consolidation, then two government officials or their designees from each affected county appointed by their respective governing bodies and/or one government official or his or her designee from each affected municipality; and
(3) Two or three public members elected during executive session by the other members to make the number of charter review committee members odd.
(d) A metro charter review committee shall continue to exist until it is dissolved pursuant to the charter or the final disapproval of the charter."
On page twenty-three, section three, after line eleven, by striking out said section three in its entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-5-3 . Election and ballots for municipal consolidation.
(a) At the next primary or general election following receipt of the proposed charter from the municipal charter review committee, the governing bodies of the affected municipalities shall hold an election on the question of consolidation. The elections in the affected municipalities shall be held on the same day in accordance with applicable election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page twenty-three, section four, after line eleven, by striking out said section four in its entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-5-4. Approval of municipal consolidation and charter.
If at least sixty percent of the qualified voters in each of the affected municipalities approves consolidation, then consolidation becomes effective pursuant to the charter."
On page twenty-four, section five, before line one, by striking out said section five in its entirety, and inserting in lieu thereof a new section five, to read as follows:

"§7A-5-5. Rejection of charter and reconsideration process.

(a) If less than sixty percent of the qualified voters in any of the affected municipalities approves consolidation, then consolidation is rejected and the municipal charter review committee may reconvene for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the municipal charter review committee, then the governing bodies of the affected municipalities shall hold another election on the second proposed charter at the next primary or general election after receipt of the second proposed charter from the municipal charter review committee. The elections in the affected municipalities shall be held on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified voters in the affected municipalities, then the proposed consolidation is rejected. A new municipal charter review committee cannot be established for at least two years after the second proposed charter is rejected."
On page twenty-five, section six, after line twenty-two, by striking out said section six in its entirety, and inserting in lieu thereof a new section six, to read as follows:

"§7A-5-6. Filing charter.

After the charter has been approved by at least sixty percent of the qualified voters in the affected areas, the charter shall be filed with the Secretary of State and recorded in the applicable county clerk's office."
On page twenty-five, section seven, after line four, by striking out said section seven in its entirety, and inserting in lieu thereof a new section seven, to read as follows:
"§7A-5-7. Subsequent joining of municipality to consolidated municipality.
(a) After a consolidated municipality has been in existence for at least one year, a municipality that is not part of the consolidated municipality may join the consolidated municipality by a petition signed by at least thirty percent of the qualified voters in the municipality.
(b) At the next primary or general election following receipt of the petition from the municipality to the governing body of the consolidated municipality, the governing body of the consolidated municipality shall vote to accept or reject the municipality joining the consolidated municipality.
(c) If the governing body of the consolidated municipality votes to accept the municipality joining the consolidated municipality, then the municipality shall, within one hundred twenty days of acceptance, hold an election on consolidation. The election shall be held in accordance with applicable election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of consolidated municipality) charter
[ ] Against the (name of consolidated municipality) charter.
(e) If at least sixty percent of the qualified voters in the municipality approves consolidation, then the municipality becomes part of the consolidated municipality.
(f) If less than sixty percent of the qualified voters in the municipality approves consolidation, then the consolidation is rejected and cannot be voted upon for one year."
On page twenty-seven, section three after line eleven, by striking out said section three in its entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-6-3. Election and ballots for county consolidation.
(a) At the next primary or general election following receipt of the proposed charter, the governing bodies of the affected counties shall hold an election on the question of consolidation. The elections in the affected counties shall be held on the same day in accordance with applicable election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page twenty-eight, section four, after line ten, by striking out said section four in its entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-6-4. Approval of county consolidation and charter.
If at least sixty percent of the qualified voters in each of the affected counties approves consolidation, then consolidation becomes effective pursuant to the charter."
On page twenty-eight, section five, after line three, by striking out said section five in its entirety, and inserting in lieu thereof a new section five, to read as follows:
"§7A-6-5. Rejection of charter and reconsideration process.
(a) If less than sixty percent of the qualified voters in any of the affected counties approves consolidation, then consolidation is rejected and the county charter review committee may reconvene for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the county charter review committee, then the governing bodies of the affected counties shall hold another election on the second proposed charter at the next primary or general election. The elections in the affected counties shall be held on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified voters in the affected counties, then the proposed consolidation is rejected. A new county charter review committee cannot be established for at least two years after the second proposed charter is rejected."
On page twenty-nine, section six, after line twenty-two, by striking out said section six in its entirety, and inserting in lieu thereof a new section six, to read as follows:
"§7A-6-6. Filing charter.
After the charter has been approved by at least sixty percent of the qualified voters in the affected areas, the charter shall be filed with the Secretary of State and recorded in all of the applicable county clerk's offices."
On page twenty-nine, section seven, after line four, by striking out said section seven in its entirety, and inserting in lieu thereof a new section seven, to read as follows:
"§7A-6-7. Subsequent joining of county to consolidated county government.
(a) After a consolidated county government has been in existence for at least one year, a county that is not part of the consolidated county may join the consolidated county by a petition signed by at least thirty percent of the qualified voters in the county.
(b) Within thirty days of receipt of the petition from the county to the governing body of the consolidated county, the governing body of the consolidated county shall vote to accept or reject the county joining the consolidated county.
(c) If the governing body of the consolidated county votes to accept the county joining the consolidated county, then the county shall, at the next primary or general election, hold an election on consolidation. The election shall be held in accordance with applicable election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of consolidated county) charter
[ ] Against the (name of consolidated county) charter.
(e) If at least sixty percent of the qualified voters in the county approves the consolidation, then the county becomes part of the consolidated county.
(f) If less than sixty percent of the qualified voters in the county approves the consolidation, then the consolidation is rejected and cannot be voted upon for one year."
On page thirty-one, section three, after line twelve, by striking out said section three in its entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-7-3. Election and ballots for metro government.
(a) At the next primary or general election following receipt of the proposed charter from the metro charter review committee, the governing body of each affected county and metro government shall hold an election on the question of metro government and the proposed charter. The elections in the affected county or metro government shall be held on the same day in accordance with applicable election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page thirty-two, section four, after line eleven, by striking out said section four in its entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-7-4. Approval of metro government and charter.
If at least sixty percent of the qualified voters of the voting precincts in the principal city and at least sixty percent of the qualified voters in the affected county precincts outside of the principal city or metro government approve consolidation, then metro government becomes effective pursuant to the charter."
On page thirty-two, section five, after line five, by striking out said section five in its entirety, and inserting in lieu thereof a new section five, to read as follows:
"§7A-7-5. Rejection of charter and reconsideration process.
(a) If less than sixty percent of the qualified voters of the voting precincts in the principal city or the affected county precincts outside of the principal city or metro government approves consolidation, then consolidation is rejected and the metro charter review committee may reconvene for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the metro charter review committee, then the governing bodies of the affected county precincts outside of the principal city or metro government shall hold another election on the second proposed charter at the next primary or general election after receipt of the second proposed charter from the metro charter review committee. The elections in the affected county precincts outside of the principal city or metro government shall be held on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified voters of the voting precincts in the principal city, or affected county precincts outside of the principal city or metro government, then the proposed consolidation is rejected. A new metro charter review committee cannot be established for at least two years after the second proposed charter is rejected."
On page thirty-four, section seven, after line six, by striking out said section seven in its entirety, andinserting in lieu thereof a new section seven, to read as follows:

"§7A-7-7. Filing charter.

"§7A-7-8. Subsequent joining of municipalities or counties to metro government.

(a) After a metro government has been in existence for at least one year, a municipality or county that is not part of the metro government may join the metro government by a petition signed by at least thirty percent of the qualified voters in the municipality or county.
(b) Within thirty days of receipt of the petition from the municipality or county to the governing body of the metro government, the governing body of the metro government shall vote to accept or reject the municipality or county joining the metro government.
(c) If the governing body of the metro government votes to accept the municipality or county joining the metro government, then the municipality or county shall, at the next primary or general election, hold an election on consolidation. The election shall be held in accordance with applicable election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of metro government) charter
[ ] Against the (name of metro government) charter.
(e) If at least sixty percent of the qualified voters in the municipality or county approves consolidation, then the municipality or county becomes part of the metro government.
(f) If less than sixty percent of the qualified voters in the municipality or county approves consolidation, then the consolidation is rejected and cannot be voted upon for one year."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 654), and there were--yeas 76, nays 23, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Blair, Border, Canterbury, Carmichael, Duke, Evans, Frich, Hall, Hamilton, Lane, Leggett, Martin, Overington, Porter, Romine, Rowan, Schadler, Schoen, Stevens, Sumner, Tansill and Trump.
Absent And Not Voting: Fragale.
So, four fifths of the members present having not voted in the affirmative, the constitutional rule was not dispensed with.
S. B. 467, Authorizing Director of Division of Protective Services assess, charge and collect fees; on second reading, coming up in regular order, was read a second time.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael the bill was amended on page two, section seven, line eighteen, by striking the word "each" and inserting in lieu thereof the word "a".
On page two, section seven, line twenty, following the word "security" by striking the word "to" and inserting in lieu thereof the words "for special events held at".
On page two, section seven, line twenty-two, following the word "Virginia" by inserting a colon and the following:
"Provided, That the director may only assess, charge or collect fees under the provisions of this section for providing safety and security for special events. For purposes of this section, special events are activities that are not considered by a state spending unit as within its ordinary course of business".
On page two, section seven, following line twenty-four, by inserting the following:
"(d) The director is hereby directed to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the purposes of this section, including but not limited to, the amount of fees that may be charged pursuant to subsection (c) of this section."

The bill was then ordered to third reading.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 655), and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Frich, Hamilton, Lane, Louisos, Schoen, Sobonya, Stevens, and Walters.
Absent And Not Voting: Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The bill was then read a third time and put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 656), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Hamilton, Sobonya, Stevens, Sumner and Walters.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 467) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 467-"A Bill to amend and reenact §15-2D-7 of the Code of West Virginia, 1931, as amended, relating to authorizing the Director of the Division of Protective Services to assess, charge and collect fees from state spending units and private entities for the direct cost and expenses of safety and security services; and defining expenses."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 657), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 467) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 558, Relating to management and investment of public funds; on second reading, coming up in regular order, was, at the request of Delegate Staton, an by unanimous consent, postponed until the completion of all items remaining on the calendar.
Third Reading
Com. Sub. for S. B. 603, Relating to higher education; on third reading, having been postponed in earlier proceedings, was reported by the Clerk.
An amendment recommended by the Committee on Finance was reported by the Clerk and adopted, amending the bill on page nine, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931, as amended, be repealed; that sections §18B-2-1, §18B-2-2 and §18B-2-3 of said code be repealed; that §18B-3-5 and §18B-3-7 of said code be repealed; that §18B-5-2d of said code be repealed; that said code be amended by adding thereto a new section, designated §12-1-12b; that §12-3-5, §12-3-6, §12-3-7 and §12-3-8 of said code be amended and reenacted; that §18-2-23a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18-2-24; that said code be amended by adding thereto a new section, designated §18A-3-11; that §18A-3A-1 and §18A-3A-2b of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18A-3A-6; that §18B-1-3 and §18B-1-6 of said code be amended and reenacted; that §18B-1A-2 and §18B-1A-6 of said code be amended and reenacted; that §18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-1B-13; that §18B-2A-3 and §18B-2A-4 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-2A-7; that said code be amended by adding thereto a new section, designated §18B-2B-9; that §18B-3-1, §18B-3-2 and §18B-3-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-3-4; that §18B-4-5, §18B-4-5a and §18B-4-7 of said code be amended and reenacted; that §18B-5-3, §18B-5-4, §18B-5-7 and §18B-5-9 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-5-10; that §18B-10-1, §18B-10-5 and §18B-10-6 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-10-6a; that said code be amended by adding thereto a new section, designated §18B-11-7; and that §18B-14-11 of said code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 1. STATE DEPOSITORIES.

§12-1-12b. Pilot program for investments by Marshall University and West Virginia University.

(a) Notwithstanding any provision of this article to the contrary, the governing boards of Marshall University and West Virginia University each may invest certain funds with its respective nonprofit foundation that has been established to receive contributions exclusively for that university and which exists on the first day of January, two thousand five. Any such investment is subject to the limitations of this section.
(b) A governing board, through its chief financial officer may enter into agreements, approved as to form by the State Treasurer, for the investment by its foundation of certain funds subject to their administration. Any interest or earnings on the moneys invested is retained by the investing university
(c) Moneys of a university that may be invested with its foundation pursuant to this section are those subject to the administrative control of the university that are collected under an act of the Legislature for specific purposes, and do not include any funds made available to the university from the state general revenue fund or the funds established in sections eighteen or eighteen-a, article twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section may be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University may at any time have not more than eight million dollars invested with its foundation. Of the moneys authorized for investment by this section, West Virginia University may at any time have not more than twenty-five million dollars invested with its foundation.
(e) Investments by foundations that are authorized under this section shall be made in accordance with and subject to the provisions of the 'Uniform Prudent Investor Act' codified as article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing board shall establish investment policies in accordance with the Uniform Prudent Investor Act for those moneys invested with its foundation. The governing board shall review, establish and modify, if necessary, the investment objectives as incorporated in its investment policies so as to provide for the financial security of the moneys invested with its foundation. The governing boards shall give consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by the thirty-first day of December, to the Governor and to the Joint Committee on Government and Finance on the performance of investments managed by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with its foundation pursuant to this section expires on the first day of July, two thousand ten.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS
§12-3-5. When requisition to Auditor sufficient authority for issuing warrant.
(a) When an appropriation has been made by law, subject to the order or payable on the requisition of a particular officer, board or person, the order or written or electronic requisition ~~in writing of such officer, board, or person shall be~~ is sufficient authority to the Auditor to issue ~~his~~ a warrant for the same or any party thereof.
(b) The Auditor:
(1) Shall, if feasible within the Auditor's existing resources, accept an electronic requisition from Marshall University and West Virginia University;
(2) May accept an electronic requisition from any entity other than Marshall University or West Virginia University at his or her discretion; and
(3) May not issue a warrant for an amount that exceeds the appropriation or for an expired appropriation. ~~Provided, that the appropriation has not expired and the amount thereof shall not be exceeded.~~
§12-3-6. Requisitions on behalf of state boards and institutions.
~~Appropriations~~
(a) An appropriation made to or for any state board or institution shall be drawn from the Treasury upon the requisition of ~~the proper officers~~ an appropriate officer thereof ~~made upon~~ to the Auditor at such times and in such amounts as ~~may be~~ is necessary for the purposes for which ~~such appropriations are~~ the appropriation is made. ~~and~~ The Auditor shall pay the amount named in ~~any such~~ the requisition at such times and in such installments as ~~shall be~~ are necessary for the purposes for which ~~any such~~ the appropriation is made.
~~But all requisitions for appropriations~~
(b) Except as provided in subsection (c) of this section, a requisition for appropriation for new buildings and substantial betterments ~~except such as are under control of the state commissioner of public institutions~~ shall be accompanied by the architect's estimate that the amount named in ~~such~~ the requisition is needed for immediate use.
(c) The provisions of subsection (b) of this section do not apply to a requisition from:
(1) An institution from which the Auditor is required to accept an electronic requisition. Such an institution is not required to submit the documentation required in subsection (b) of this section, but shall maintain the documentation for inspection at the Auditor's request; and
(2) The Commissioner of Corrections.
(d) The Auditor ~~shall not~~ may issue ~~his~~ a warrant to pay ~~any~~ money out of the State Treasury ~~unless the same~~ only if the money is needed for the present use.
§12-3-7. Payment of compensation and expenses of members of state boards and commissions; embezzlement.

~~The members of all state boards and commissions, unless a different rate of compensation is provided by law, shall be allowed~~
(a) Unless otherwise provided by law, a member of any state board or commission:
(1) Receives four dollars per day for each day necessarily employed as such, including ~~the~~ time spent ~~in going~~ traveling to and returning from the ~~place of~~ meeting location; ~~and~~
(2) Receives the actual and necessary expenses incurred ~~by them~~ in the discharge of ~~their~~ his or her duties; and
(3) Does not receive mileage reimbursement. ~~except where it is otherwise specifically~~ ~~provided no mileage shall be paid. But before payment to any such member of any such compensation or expenses, he shall make up~~
(b) Prior to receiving compensation or expense reimbursement:
(1) The member prepares in duplicate ~~and certify to the correctness of~~ an itemized statement specifying of the number of days spent ~~(giving dates)~~ and of the expenses incurred;
(2) The member certifies the accuracy of the itemized statement;
(3) ~~which statement shall be delivered~~ The member delivers the original to the secretary or clerk of the ~~institution on behalf of which the duties are performed, the original whereof the secretary or clerk shall file or preserve in his office, and~~ board or commission for preservation in its office; and
(4) The secretary or clerk immediately forwards the duplicate ~~of which he shall at once forward~~ to the Auditor.
(c) If any ~~such~~ member ~~shall~~ willfully ~~make~~ makes a greater charge of ~~such~~ services or expenses than truth justified, he ~~shall be~~ or she is guilty of embezzlement and punished accordingly.
(d) The governing board of Marshall University and West Virginia University each satisfies the requirements of subsection (b) of this section by maintaining the member's original itemized, certified statement and submitting an electronic requisition to the Auditor.
§12-3-8. Requisition on behalf of institutions to be accompanied by statement showing funds on hand.

~~No requisition shall be~~ A requisition made upon the Auditor for any money appropriated for ~~the~~ a ~~penitentiary;~~ state correctional facility; the West Virginia ~~schools~~ School for the Deaf and Blind; state mental health facilities; state hospitals; corrections facilities; ~~or for~~ Marshall University; West Virginia University; any other public institution for education, charity or correction; or institutions ~~governed by the university of West Virginia board of trustees by the board of directors of the state college system, unless such requisition~~ under the jurisdiction of the Higher Education Policy Commission or the West Virginia Council for Community and Technical College Education shall be accompanied by ~~the statement in writing of the treasurer or other~~ a written or electronic statement of a financial officer of ~~such~~ the institution, showing the amount of money in his or her hands to the credit of ~~such~~ the institution, or otherwise in its control, on the day ~~such~~ the requisition is forwarded for payment.
CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-23a. Annual professional staff development goals established by State Board; coordination of professional development programs; program development, approval and evaluation.

(a) Legislative intent. -- The intent of this section is:
(1) To provide for the coordination of professional development programs by the State Board; ~~and~~
(2) To promote high-quality instructional delivery and management practices for a thorough and efficient system of schools; and
(3) To ensure that the expertise and experience of state institutions of higher education with teacher preparation programs are included in developing and implementing professional development programs.
(b) Goals. -- The State Board annually shall establish goals for professional staff development in the public schools of the state. As a first priority, the State Board shall require adequate and appropriate professional staff development to ensure high quality teaching that will enable students to achieve the content standards established for the required curriculum in the public schools.
The State Board shall submit the goals to the State Department of Education, the Center for Professional Development, the regional educational service agencies, the Higher Education Policy Commission and the Legislative Oversight Commission on Education Accountability on or before the fifteenth day of January each year.
The goals shall include measures by which the effectiveness of the professional staff development programs will be evaluated. The professional staff development goals ~~may~~ shall include separate goals for teachers, principals and paraprofessional service personnel and may include separate goals for classroom aides and others in the public schools.
In establishing the goals, the State Board shall review reports that may indicate a need for professional staff development including, but not limited to, the report of the Center for Professional Development created in article three-a, chapter eighteen-a of this code, student test scores on the statewide student assessment program, the measures of student and school performance for accreditation purposes, school and school district report cards and its plans for the use of funds in the strategic staff development fund pursuant to section thirty-two, article two, chapter eighteen of this code.
(c) The Center for Professional Development shall design a proposed professional staff development program plan to achieve the goals of the State Board and shall submit the proposed plan to the State Board for approval as soon as possible following receipt of the State Board goals each year. In developing and implementing this plan, the Center first shall rely upon the available expertise and experience of state institutions of higher education before procuring advice, technical assistance or consulting services from sources outside the state.
The proposed plan shall include a strategy for evaluating the effectiveness of the professional staff development programs delivered under the plan and a cost estimate. The State Board shall review the proposed plan and return it to the Center for Professional Development noting whether the proposed plan is approved or is not approved, in whole or in part. If a proposed plan is not approved in whole, the State Board shall note its objections to the proposed plan or to the parts of the proposed plan not approved and may suggest improvements or specific modifications, additions or deletions to address more fully the goals or eliminate duplication. If the proposed plan is not wholly approved, the Center for Professional Development shall revise the plan to satisfy the objections of the State Board. State board approval is required prior to implementation of the professional staff development plan.
(d) The State Board approval of the proposed professional staff development plan shall establish a Master Plan for Professional Staff Development which shall be submitted by the State Board to the affected agencies and to the Legislative Oversight Commission on Education Accountability. The Master Plan shall include the State Board-approved plans for professional staff development by the State Department of Education, the Center for Professional Development, the state institutions of higher education and the regional educational service agencies to meet the professional staff development goals of the State Board. The Master Plan also shall include a plan for evaluating the effectiveness of the professional staff development delivered through the programs and a cost estimate.
The Master Plan shall serve as a guide for the delivery of coordinated professional staff development programs by the State Department of Education, the Center for Professional Development, the state institutions of higher education and the regional educational service agencies beginning on the first day of June in the year in which the Master Plan was approved through the thirtieth day of May in the following year. ~~Provided,~~ ~~That nothing in this section shall~~ This section does not prohibit changes in the Master Plan, subject to State Board approval, to address staff development needs identified after the Master Plan was approved.
§18-2-24. Collaboration of state institutions of higher education having a teacher preparation program with the Center for Professional Development and the regional education service agencies.

(a) For the purposes of this section 'teacher preparation institution' means a state institution of higher education with a teacher preparation program.
(b) The intent of this section is to establish a structure to enhance collaboration between the teacher preparation institutions, the Center for Professional Development and the regional education service agencies in providing professional development.
(c) The Legislature finds that:
(1) There is insufficient collaboration of the teacher preparation institutions with the Center for Professional Development and each of the regional education service agencies;
(2) More collaboration would prevent duplication of services and result in higher quality professional development;
(3) Creating a structure and assigning responsibility would promote more effective collaboration;
(4) The state's research and doctoral degree-granting public institutions of higher education, West Virginia University and Marshall University, have the most capacity to be important sources of research and expertise on professional development;
(5) West Virginia University and Marshall University are the only institutions in the state that offer course work leading to a doctoral degree in education administration;
(6) As the largest state institutions of higher education, West Virginia University and Marshall University have more capacity than any other institution in the state to handle the additional responsibilities assigned in this section;
(7) The coordination by West Virginia University and Marshall University of the efforts of other teacher preparation institutions to collaborate with the Center for Professional Development and each of the regional education service agencies will provide points of accountability for the collaboration efforts of the other institutions; and
(8) The State Board's authority over the regional education service agencies can be used to motivate the agencies to collaborate with the teacher preparation institutions in providing professional development and will serve as a point of accountability for the collaboration efforts of the agencies.
(d) West Virginia University and Marshall University shall collaborate with the Center for Professional Development in performing the Center's duties. This collaboration shall include at least the following:
(1) Including the teacher preparation institutions in the proposed professional staff development program plan required to be submitted to the State Board by section twenty-three-a of this article;
(2) Providing any available research-based expertise that would be helpful in the design of the proposed professional staff development program plan;
(3) Providing any available research-based expertise that would be helpful in the implementation of professional development programs; and
(4) Arranging for other state institutions of higher education having a teacher preparation program to assist the Center when that assistance would be helpful.
(e) All teacher preparation institutions shall collaborate with the regional education service agency of the service area in which the institution is located at least to:
(1) Prevent unnecessary duplication of services;
(2) Assist in the implementation of the professional development programs of the regional education service agency; and
(3) Assist the regional education service agency in obtaining any available grants for professional development or to apply for any available grant with the agency collaboratively.
(f) Since no teacher preparation institution exists in the service area of Regional Education Service Agency IV, Marshall University shall collaborate with that Agency for the purposes set forth in subdivision (e) of this section.
(g) In addition to the collaboration required by subsections (e) and (f) of this section of all teacher preparation institutions, West Virginia University and Marshall University shall:
(1) Coordinate the collaboration of each of the other teacher preparation institutions in their designated coordination area with the appropriate regional education service agency. This coordination at least includes ensuring that each of the other institutions are collaborating with the appropriate regional education service agency; and
(2) Collaborate with each of the other teacher preparation institutions in their designated coordination area. This collaboration at least includes providing assistance to the other institutions in providing professional development and in their collaboration with the appropriate regional education service agency.
(h) The designated coordination area of West Virginia University includes the service areas of Regional Education Service Agencies V, VI, VII and VIII. The designated coordination area of Marshall University includes the service areas of Regional Education Service Agencies I, II, III and IV.
(i) The State Board shall ensure that each of the regional education service agencies is collaborating with the teacher preparation institution or institutions in its service area for the purposes set forth in subsection (e) of this section. Since Regional Education Service Agency IV does not have a teacher preparation institution in its service area, the State Board shall ensure that it is collaborating with Marshall University for the purposes set forth in subsection (e) of this section.
(j) Before a regional education service agency, except for Regional Education Service Agency IV, obtains professional development related services or expertise from any teacher preparation institution outside of that agency's service area, the agency shall inform the Center for Professional Development Board. Before Regional Education Service Agency IV obtains professional development related services or expertise from any teacher preparation institution other than Marshall University, the agency shall inform the Center Board.
(k) The collaboration and coordination requirements of this section includes collaborating and coordinating to provide professional development for at least teachers, principals and paraprofessionals.

CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-11. Study of professional development standards and best practices.

The Legislative Oversight Commission on Education Accountability shall cause a study to be conducted to determine and to recommend standards and best practices for professional development that are focused on advancing student achievement. The study and a final report of recommendations shall be completed prior to the first day of September, two thousand five. The Commission shall submit the final report to the Joint Committee on Government and Finance. The Commission shall determine if resources to assist in the completion of the study are available from sources other than public funds and shall report such to the Joint Committee.

ARTICLE 3A. CENTER FOR PROFESSIONAL DEVELOPMENT.

§18A-3A-1. Center for Professional Development; intent and mission; Principals Academy curriculum and expenses; authorization to charge fees.

(a) Teaching is a profession that directly correlates to the social and economic well-being of a society and its citizens. Superior teaching is essential to a well-educated and productive populace. Strong academic leadership provided by principals and administrators skilled in modern management principles is also essential. The intent of this article is to recognize the value of professional involvement by experienced educators, principals and administrators in building and maintaining a superior force of professional educators and to establish avenues for applying ~~such~~ this involvement.
(b) The general mission of the Center is to advance the quality of teaching and management in the schools of West Virginia through: (1) The implementation primarily of statewide training, professional staff development, including professional staff development for at least teachers, principals and paraprofessionals, and technical assistance programs and practices as recommended by the State Board to assure the highest quality of teaching and management; and (2) the provision of technical and other assistance and support to regional and local education agencies in identifying and providing high quality professional staff development, including professional staff development for at least teachers, principals and paraprofessionals, and training programs and implementing best practices to meet their locally identified needs. The Center also may implement local programs if the State Board, in its Master Plan for Professional Staff Development established pursuant to section twenty-three-a, article two, chapter eighteen of this code, determines that there is a specific local need for the programs. Additionally, the Center shall perform ~~such~~ other duties ~~as are~~ assigned to it by law.
Nothing in this article shall be construed to require any specific level of funding by the Legislature.
(c) Subject to subsection (d) of this section, the Center Board shall consist of eleven persons as follows: The Secretary of Education and the Arts, ex officio, and the State Superintendent, ~~of schools~~ ex officio, both of whom shall be entitled to vote; three members of the State Board, elected by the State Board; three experienced educators, of whom two shall be working classroom teachers and one of whom shall be a school or county administrator appointed by the Governor by and with the advice and consent of the Senate, all of whom shall be experienced educators who have achieved recognition for their superior knowledge, ability and performance in teaching or management, as applicable; and three citizens of the state, one of whom shall be a representative of public higher education and all of whom shall be knowledgeable in matters relevant to the issues addressed by the Center, including, but not limited to, professional development and management principles, appointed by the Governor by and with the advice and consent of the Senate. Not more than two appointees shall be residents within the same congressional district. The Center Board shall be cochaired by the Secretary of Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board may serve no more than two consecutive two-year terms. The State Board shall elect another member to fill the unexpired term of any person so elected who subsequently vacates State Board membership. Of the initial appointed members, three shall be appointed for one-year terms and three shall be appointed for two-year terms. All successive appointments shall be for two-year terms. An experienced educator may serve no more than two consecutive two-year terms. The Governor shall appoint a new member to fill the unexpired term of any vacancy in the appointed membership.
(d) On the first day of July, two thousand five, the Center for Professional Development Board shall be reconstituted, all terms of elected and appointed members expire on that date, the provisions of subsection (c) of this section are void and the provisions of this subsection become effective. The Center Board shall consist of thirteen persons as follows: The Secretary of Education and the Arts, ex officio, and the State Superintendent, ex officio, both of whom shall be entitled to vote; two members of the State Board, elected by the State Board; one person employed by West Virginia University and one person employed by Marshall University, both of whom shall be appointed by the President of the employing institution, both of whom are faculty in the teacher education section of the employing institution and both of whom are knowledgeable in matters relevant to the issues addressed by the Center ; one regional education service agency executive director, elected by all of the regional education service agency executive directors; three experienced educators, one of whom shall be a working classroom teacher, one of whom shall be a school principal and one of whom shall be a county administrator, all of whom shall be appointed by the Governor by and with the advice and consent of the Senate, all of whom shall be experienced educators who have achieved recognition for their superior knowledge, ability and performance in teaching or management, as applicable, and all of whom are knowledgeable in matters relevant to the issues addressed by the Center; and three citizens of the state, all of whom shall be knowledgeable in matters relevant to the issues addressed by the Center, including, but not limited to, professional development and management principles, appointed by the Governor by and with the advice and consent of the Senate. Not more than two gubernatorial appointees shall be residents within the same congressional district. The Center Board shall be cochaired by the Secretary of Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board may serve no more than two consecutive two-year terms. The State Board shall elect another member to fill the unexpired term of any person so elected who subsequently vacates State Board membership. If the executive director elected by the regional education service agency executive directors ceases to be employed in that capacity, the regional education service agency executive directors shall elect another executive director to fill the unexpired term. Of the initial members appointed by the Governor, three shall be appointed for one-year terms and three shall be appointed for two-year terms. All successive appointments by the Governor shall be for two-year terms. An experienced educator may serve no more than two consecutive two-year terms. The Governor shall appoint a new member to fill the unexpired term of any vacancy in the appointed membership. The members appointed by the Presidents of West Virginia University and Marshall University shall serve two-year terms. If the person employed by West Virginia University or the person employed by Marshall University ceases to be employed by the institution for which they were employed, the president of that institution shall appoint another employee to fill the unexpired term.
~~(d)~~ (e) The Center for Professional Development Board shall meet at least quarterly and the appointed members shall be reimbursed for reasonable and necessary expenses actually incurred in the performance of their official duties from funds appropriated or otherwise made available for ~~such~~ those purposes upon submission of an itemized statement therefor.
~~(e)~~ (f) Subject to subsection (g) of this section, from appropriations to the Center for Professional Development, the Center Board shall employ and fix the compensation of an Executive Director with knowledge and experience in professional development and management principles and ~~such~~ other staff ~~as may be~~ necessary to carry out the mission and duties of the Center. The Executive Director shall serve at the will and pleasure of the Center Board. The Executive Director of the Center also shall serve as the chair of the Principals Standards Advisory Council created in section two-c, article three of this chapter and shall convene regular meetings of this council to effectuate the purposes of this council.
(g) Effective the first day of July, two thousand five, the position of Executive Director is abolished, the provisions of subsection (f) of this subsection are void and the provisions of this subsection become effective. The Governor shall appoint, by and with the advice and consent of the Senate, a Chief Executive Officer with knowledge and experience in professional development and management principles. From appropriations to the Center for Professional Development, the Center Board sets the salary of the Chief Executive Officer. The Center Board, upon the recommendation of the Chief Executive Officer, may employ other staff necessary to carry out the mission and duties of the Center. The Chief Executive Officer serves at the will and pleasure of the Governor. Annually, the Center Board shall evaluate the Chief Executive Officer, and shall report the results to the Governor. Any reference in this code to the Executive Director of the Center for Professional Development means the position of Chief Executive Officer established in this subsection. The duties of the Chief Executive Officer include the following:
(1) Managing the daily operations of the Center;
(2) Ensuring the implementation of the Center's mission;
(3) Ensuring collaboration of the Center with other professional development providers;
(4) Requesting from the Governor and the Legislature any resources or statutory changes that would help in enhancing the collaboration of all professional development providers in the state, in advancing the quality of professional development through any other means or both;
(5) Serving as the chair of the Principals Standards Advisory Council created in section two-c, article three of this chapter and convening regular meetings of this Council to effectuate the purposes of this Council; and
(5) Other duties as assigned by the Governor or the Center Board.
(h) When practicable, personnel employed by state higher education agencies and state, regional and county public education agencies shall be made available to the Center to assist in the operation of projects of limited duration, subject to the provisions of section twenty-four, article two, chapter eighteen.
~~(f)~~ (i) The Center shall assist in the delivery of programs and activities pursuant to this article to meet statewide, and if needed as determined by the goals and Master Plan for Professional Staff Development established by the State Board pursuant to section twenty-three-a, article two, chapter eighteen of this code, the local professional development needs of paraprofessionals, teachers, principals and administrators and may contract with existing agencies or agencies created after the effective date of this section or others to provide training programs in the most efficient manner. Existing programs currently based in agencies of the state shall be continued in the agency of their origin unless the Center establishes a compelling need to transfer or cancel the existing program. The Center shall recommend to the Governor the transfer of funds to the providing agency, if needed, to provide programs approved by the Center.
~~(g)~~ (j) The Center for Professional Development shall implement training and professional development programs for the Principals Academy based upon the minimum qualities, proficiencies and skills necessary for principals in accordance with the standards established by the State Board pursuant to the terms of section two-c, article three of this chapter.
~~(h)~~ (k) In accordance with section two-c, article three of this chapter, the Center shall be responsible for paying reasonable and necessary expenses for persons attending the Principals Academy: Provided, That nothing in this section shall be construed to require any specific level of funding by the Legislature.
~~(i)~~ (l) Persons attending the professional development offerings of the Center and ~~such~~ other courses and services ~~as shall be~~ offered by the Center for Professional Development, except the Principals Academy shall be assessed fees which shall be less than the full cost of attendance. There is hereby created in the State Treasury a special revenue account known as the 'Center for Professional Development Fund'. All moneys collected by the Center shall be deposited in the fund for expenditure by the Center Board for the purposes specified in this section. Moneys remaining in the fund at the end of the fiscal year are subject to reappropriation by the Legislature.
(m) The Center Board shall make collaboration with the State Board in the following areas a priority:
(1) In providing professional development services to those public schools selected by the State Superintendent pursuant to section three-g, article two-e, chapter eighteen of this code; and
(2) In providing professional development services in any specific subject matter area in which the State Board, the Legislature or both determines that an initiative in that area is justified due to a need to increase student achievement in that specific area.
(n) The Center Board shall conduct a professional development study and report any recommendations to the Governor and the Legislative Oversight Commission on Education Accountability prior to the first day of January, two thousand six. The recommendations may include legislation to change existing code if necessary. The study shall include at least the following issues:
(1) The extent to which the collaboration between the state higher education institutions with teacher preparation programs and the regional education service agencies should include offering follow-up professional development to the professional development programs offered during the previous summer;
(2) The items that the State Board should consider in establishing the professional development goals pursuant to section twenty-three-a, article two, chapter eighteen of this code and the priority in which the items should be considered; and
(3) Any potential changes that would enhance the effectiveness of training offered by the Principals Academy.
§18A-3A-2b. The Principals Academy.
(a) There is hereby established within the Center for Professional Development the 'Principals Academy'. Training through the Principals Academy shall include at least the following:
~~(a)~~ (1) Training designed to build within principals the minimum qualities, proficiencies and skills that will be required of all principals pursuant to the rules of the State Board;
~~(b)~~ (2) Specialized training and professional development programs for all principals; and
~~(c)~~ (3) Specialized training and professional development programs for the following principals:
~~(1)~~ (A) Newly appointed principals;
~~(2)~~ (B) Principals whose schools have been designated as seriously impaired, which programs shall commence as soon as practicable following the designation;
~~(3)~~ (C) Principals subject to improvement plans; and
~~(4)~~ (D) Principals of schools with significantly different grade level configurations.
(b) The Legislature finds that the quality of the principal of a school is one of the most important factors in determining the academic achievement of students and that well-trained, highly qualified principals should be a priority for the state. The Legislature further finds that, although the Principal's Academy has been effective in training quality leaders of the state's public schools, the training provided is such an important factor in determining the success of the public schools that the creation of a new position to coordinate and focus primarily on the Principal's Academy to even further increase the quality of the training is needed. Therefore, effective the first day of July, two thousand five, from appropriations to the Center for Professional Development, the Center Board shall employ and fix the compensation of a Coordinator of the Principals Academy. The Coordinator shall serve at the will and pleasure of the Center Board. It is the duty of the Coordinator, subject to direction and oversight by the Center and the Chief Executive Officer, to lead the Principal's Academy, to focus primarily on the Principals Academy and to make a continuous effort to further enhance the quality of the training and professional development programs of the Academy. The Center Board, the Chief Executive Officer or both may assign duties to the coordinator other than relate to the Principals Academy so long as the Coordinator is able to primarily focus on the Principals Academy.
§18A-3A-6. Attendance outside the employment term.
A professional educator may not be required to attend the principals academy or any other program offered through the Center for Professional Development outside his or her employment term. A professional educator may attend the academy or other program outside his or her employment term by mutual agreement between the Center, the educator, and his or her employer.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-3. Transfer of powers, duties, property, obligations, etc.
(a) All powers, duties and authorities transferred to the Board of Regents pursuant to former provisions of chapter eighteen of this code and transferred to the Board of Trustees and Board of Directors which were created as the governing boards pursuant to the former provisions of this chapter and all powers, duties and authorities of the Board of Trustees and Board of Directors, to the extent they are in effect on the seventeenth day of June, two thousand, are hereby transferred to the Interim Governing Board created in article one-c of this chapter and shall be exercised and performed by the Interim Governing Board until the first day of July, two thousand one, as such powers, duties and authorities may apply to the institutions under its jurisdiction.
(b) Title to all property previously transferred to or vested in the Board of Trustees and the Board of Directors and property vested in either of the Boards separately, formerly existing under the provisions of this chapter, are hereby transferred to the Interim Governing Board created in article one-c of this chapter until the first day of July, two thousand one. Property transferred to or vested in the Board of Trustees and Board of Directors shall include:
(1) All property vested in the Board of Governors of West Virginia University and transferred to and vested in the West Virginia Board of Regents;
(2) All property acquired in the name of the State Board of Control or the West Virginia Board of Education and used by or for the state colleges and universities and transferred to and vested in the West Virginia Board of Regents;
(3) All property acquired in the name of the State Commission on Higher Education and transferred to and vested in the West Virginia Board of Regents; and
(4) All property acquired in the name of the Board of Regents and transferred to and vested in the respective Board of Trustees and Board of Directors.
(c) Each valid agreement and obligation previously transferred to or vested in the Board of Trustees and Board of Directors formerly existing under the provisions of this chapter is hereby transferred to the Interim Governing Board until the first day of July, two thousand one, as those agreements and obligations may apply to the institutions under its jurisdiction. Valid agreements and obligations transferred to the Board of Trustees and Board of Directors shall include:
(1) Each valid agreement and obligation of the Board of Governors of West Virginia University transferred to and deemed the agreement and obligation of the West Virginia Board of Regents;
(2) Each valid agreement and obligation of the State Board of Education with respect to the state colleges and universities transferred to and deemed the agreement and obligation of the West Virginia Board of Regents;
(3) Each valid agreement and obligation of the State Commission on Higher Education transferred to and deemed the agreement and obligation of the West Virginia Board of Regents; and
(4) Each valid agreement and obligation of the Board of Regents transferred to and deemed the agreement and obligation of the respective Board of Trustees and Board of Directors.
(d) All orders, resolutions and rules adopted or promulgated by the respective Board of Trustees and Board of Directors and in effect immediately prior to the first day of July, two thousand, are hereby transferred to the Interim Governing Board until the first day of July, two thousand one, and shall continue in effect and shall be deemed the orders, resolutions and rules of the Interim Governing Board until rescinded, revised, altered or amended by the Commission or the governing boards in the manner and to the extent authorized and permitted by law. Such orders, resolutions and rules shall include:
(1) Those adopted or promulgated by the Board of Governors of West Virginia University and in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent authorized and permitted by law;
(2) Those respecting state colleges and universities adopted or promulgated by the West Virginia Board of Education and in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent authorized and permitted by law;
(3) Those adopted or promulgated by the State Commission on Higher Education and in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent authorized and permitted by law; and
(4) Those adopted or promulgated by the Board of Regents prior to the first day of July, one thousand nine hundred eighty-nine, unless and until rescinded, revised, altered or amended by the respective Board of Trustees or Board of Directors in the manner and to the extent authorized and permitted by law.
(e) Title to all real property transferred to or vested in the Interim Governing Board pursuant to this section of the code is hereby transferred to the Commission effective the first day of July, two thousand one. The board of governors for each institution may request that the Commission transfer title to the board of governors of any real property specifically identifiable with that institution or the Commission may initiate the transfer. Any such request must be made within two years of the effective date of this section and be accompanied by an adequate legal description of the property. In the case of real property that is specifically identifiable with Marshall University or West Virginia University, the Commission shall transfer title to all real property, except real property that is used jointly by institutions or for statewide programs under the jurisdiction of the Commission or the Council, to the Board of Governors of Marshall University or West Virginia University, as appropriate, upon receipt of a request from the appropriate governing board accompanied by an adequate legal description of the property.
The title to any real property that is jointly utilized by institutions or for statewide programs under the jurisdiction of the Commission or the Council shall be retained by the Commission.
(f) Ownership of or title to any other property, materials, equipment or supplies obtained or purchased by the Interim Governing Board or the previous governing boards on behalf of an institution is hereby transferred to the board of governors of that institution effective the first day of July, two thousand one.
(g) Each valid agreement and obligation previously transferred or vested in the Interim Governing Board and which was undertaken or agreed to on behalf of an institution or institutions is hereby transferred to the board of governors of the institution or institutions for whose benefit the agreement was entered into or the obligation undertaken effective the first day of July, two thousand one.
(1) The obligations contained in revenue bonds issued by the previous governing boards under the provisions of section eight, article ten of this chapter and article twelve-b, chapter eighteen of this code are hereby transferred to the Commission and each institution shall transfer to the Commission those funds the Commission determines are necessary to pay that institution's share of bonded indebtedness.
(2) The obligations contained in revenue bonds issued on behalf of a state institution of higher education pursuant to any other section of this code is hereby transferred to the board of governors of the institution on whose behalf the bonds were issued.
(h) All orders, resolutions, policies and rules:
(1) Adopted or promulgated by the respective Board of Trustees, Board of Directors or Interim Governing Board and in effect immediately prior to the first day of July, two thousand one, are hereby transferred to the Commission effective the first day of July, two thousand one, and continue in effect until rescinded, revised, altered, amended or transferred to the governing boards by the Commission as provided in this section and in section six of this article.
(2) Adopted or promulgated by the Commission relating solely to community and technical colleges or community and technical college education, or rules which the Council finds necessary for the exercise of its lawful powers and duties pursuant to the provisions of this chapter, may be adopted by the Council and continue in effect until rescinded, revised, altered, amended or transferred to the governing boards under the jurisdiction of the Council pursuant to section six of this article. Nothing in this section requires the initial rules of the Commission that are adopted by the Council to be promulgated again under the procedure set forth in article three-a, chapter twenty-nine-a of this code unless such rules are rescinded, revised, altered or amended.
(3) Adopted or promulgated by the Commission relating to multiple types of public institutions of higher education or community and technical college education as well as baccalaureate and post-baccalaureate education are transferred to the Council in part as follows:
(A) That portion of the rule relating solely to community and technical colleges or community and technical college education is transferred to the Council and continues in effect until rescinded, revised, altered, amended or transferred to the governing boards by the Council as provided in this section and in section six of this article;
(B) That portion of the rule relating to institutions or education other than community and technical colleges is retained by the Commission and continues in effect until rescinded, revised, altered, amended or transferred to the governing boards by the Commission as provided in this section and in section six of this article.
(i) The Commission may, in its sole discretion, transfer any rule, other than a legislative rule, to the jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise, alter or amend any rule so transferred pursuant to rules adopted by the Commission pursuant to section six of this article.
The Council may, in its sole discretion, transfer any rule, other than a legislative rule, to the jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise, alter or amend any rule so transferred pursuant to rules adopted by the Council pursuant to section six of this article.
(j) As to any title, agreement, obligation, order, resolution, rule or any other matter about which there is some uncertainty, misunderstanding or question, the matter shall be summarized in writing and sent to the Commission which shall make a determination regarding such matter within thirty days of receipt thereof.
(k) Rules or provisions of law which refer to other provisions of law which were repealed, rendered inoperative or superseded by the provisions of this section shall remain in full force and effect to such extent as may still be applicable to higher education and may be so interpreted. Such references include, but are not limited to, references to sections and prior enactments of article twenty-six, chapter eighteen of this code and code provisions relating to retirement, health insurance, grievance procedures, purchasing, student loans and savings plans. Any determination which needs to be made regarding applicability of any provision of law shall first be made by the Commission.
§18B-1-6. Rulemaking.
(a) The Commission is hereby empowered to promulgate, adopt, amend or repeal rules, in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, subject to the provisions of section three of this article.
(b) The Council is hereby empowered to promulgate, adopt, amend or repeal rules, in accordance with the provisions of article three-a, chapter twenty-nine-a of this code and subject to the provisions of 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 the provisions of this code:
(1) 'Rule' means any regulation, guideline, directive, standard, statement of policy or interpretation of general application which has institutionwide 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.
~~(c)~~ (3) The Commission and Council each shall promulgate a rule to guide the development and approval of rules ~~guidelines and other policy statements~~ made by their respective governing boards, including the governing boards of Marshall University and West Virginia University. 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 rules adopted by each governing board of a state institution of higher education:
~~(1)~~ (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;
~~(2)~~ (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; and
~~(3)~~ (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.
(d) On and after the effective date of this section, and notwithstanding any other provision of this code to the contrary, any rule heretofore required by law to be promulgated as a legislative rule prior to the first day of July, two thousand one, may not be considered to be a legislative rule for the purposes of article three-a, chapter twenty-nine-a of this code except for the following:
~~(1) The legislative rule required by subsection (c), section eight of this article;~~
~~(2) The legislative rule required by section eight-a of this article;~~
~~(3) The legislative rule required by section two, article one-a of this chapter;~~
~~(4) The legislative rule required by section four, article one-b of this chapter;~~
~~(5) The legislative rule required by section one, article three, chapter eighteen-c of this code;~~
~~(6) The legislative rule required by section one, article four, chapter eighteen-c of this code;~~
~~(7) The legislative rule required by section seven, article five, chapter eighteen-c of this code; and~~
~~(8) The legislative rule required by section one, article six, chapter eighteen-c of this code.~~
~~(e)~~ (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.
~~(f)~~ (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 of Marshall University and West Virginia University, respectively, 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 the first day of July, two thousand six. On and after this date:
(1) Any rule of either 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 the provisions of this section.
(3) Within thirty days of the adoption of a rule, including repeal or amendment of an existing rule, the governing boards of Marshall University and West Virginia University, respectively, shall furnish to the Commission or the Council, as appropriate, a copy of each rule which has been formally adopted;
(g) Not later than the first day of October, two thousand five, and annually thereafter, each governing board of a state institution of higher education shall file with the Commission or the Council, as appropriate, a list of all institutional rules that were in effect for that institution on the first day of July 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 certifying that the governing board has complied with the provisions of this section when each listed rule was adopted.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST VIRGINIA.

§18B-1A-2. Institutional compacts with state institutions of higher education; establishment and review process.

(a) Each state college and university shall prepare an institutional compact for submission to the Commission. Each community and technical college shall prepare an institutional compact for submission to the Council. When the process herein provided is completed, the institutional compacts shall form the agreements between the institutions of higher education and the Commission or Council, respectively, and, ultimately, between the institutions of higher education and the people of West Virginia on how the institutions will use their resources to address the intent of the Legislature and the goals set forth in section one-a, article one of this chapter. The compacts shall contain the following:
(1) A step-by-step process to accomplish the intent of the Legislature and the goals set forth in section one-a, article one of this chapter as organized by the Commission and Council. The step-by-step process shall be delineated by objectives and shall set forth a time line for achieving the objectives which shall, where applicable, include benchmarks to measure institutional progress as defined in subsection (e) of this section.
(2) A determination of the mission of the institution which specifically addresses changes, as applicable, in the areas of research, graduate education, baccalaureate education, revised admission requirements, community and technical colleges and such other areas as the Commission or Council determines appropriate. In the determination of mission, the institutions and the Commission or Council shall consider the report completed by the national center for higher education management systems pursuant to the legislative study as provided in section seven, article three of this chapter;
(3) A plan which is calculated to make any changes in institutional mission and structure within a six-year period;
(4) A statement of the geographic areas of responsibility, where applicable, for each goal to be accomplished as provided in subsection (d) of this section;
(5) A detailed statement of how the compact is aligned with and will be implemented in conjunction with the master plan of the institution;
(6) Such other items, requirements or initiatives, required by the Commission or Council, designed to accomplish the intent of the Legislature and the goals set forth in section one-a, article one of this chapter or other public policy goals established by the Commission or Council.
(b) Each institutional compact shall be updated annually and shall follow the same general guidelines contained in subsection (a) of this section.
(c) Development and updating of the institutional compacts is subject to the following:
(1) The ultimate responsibility for developing and updating the institutional compacts at the institutional level resides with the institutional board of advisors or the board of governors, as appropriate;
(2) The ultimate responsibility for developing and adopting the final version of the state college and university institutional compacts resides with the Commission. The ultimate responsibility for developing and adopting the final version of the community and technical college institutional compacts resides with the Council;
(3) Each institution shall submit its compact to the Commission or Council annually by the fifteenth day of November;
(4) The Commission and Council shall review each compact of the institutions under their respective jurisdictions and either adopt the compact or return it with specific comments for change or improvement. The Commission and Council, as appropriate, shall continue this process as long as ~~each~~ the Commission or Council as applicable, considers advisable;
(5) By the first day of May annually, if the institutional compact of any institution as presented by that institution is not adopted by the Commission, or Council, then the Commission or Council is empowered and directed to develop and adopt the institutional compact for the institution and the institution is bound by the compact so adopted; and
(6) As far as practicable, the Commission and Council each shall establish uniform processes and forms for the development and submission of the institutional compacts by the institutions under their respective jurisdictions, including the state institutions of higher education known as Marshall University and West Virginia University. As a part of this function, the Commission and Council shall organize the statements of legislative intent and goals contained in section one-a, article one of this chapter in a manner that facilitates the purposes of this subdivision and the purposes of this section.
(d) Assignment of geographic areas of responsibility. --
(1) The Commission ~~and Council~~ shall assign geographic areas of responsibility to the state institutions of higher education under ~~their respective jurisdictions~~ its jurisdiction, except for the state institutions of higher education known as Marshall University and West Virginia University. For institutions other than the state institutions of higher education known as Marshall University and West Virginia University, the geographic areas of responsibility are made as a part of their institutional compacts to ensure that all areas of the state are provided necessary programs and services to achieve the public policy agenda.
(2) Pursuant to the provisions of section four, article three-c of this chapter, the Council shall assign geographic areas of responsibility to the state institutions of higher education under its jurisdiction, including the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology and the regional campus known as West Virginia University at Parkersburg.
(3) The geographic areas of responsibility for the state institutions of higher education known as Marshall University and West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts shall include measures of programs and services by geographic area throughout the assigned geographic area of responsibility.
(e) The compacts shall contain benchmarks used to determine progress toward meeting the goals established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be as objective as possible;
(2) They shall be directly linked to the goals in the compacts;
(3) They shall be measured by the indicators described in subsection (f) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of responsibility.
(f) The Commission and Council each shall establish by legislative rule indicators which measure the degree to which the goals and objectives set forth in section one-a, article one of this chapter are being addressed and met by the institutions under their respective jurisdictions. The benchmarks established in subsection (e) of this section shall be measured by the indicators.
(1) The Legislature finds that an emergency exists; therefore, not later than the first day of October, two thousand four, the Council shall file as an emergency rule a legislative rule pertaining to benchmarks and indicators in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The ~~rule~~ rules pertaining to benchmarks and indicators in effect for the Commission and the Council ~~at the time of~~ on the effective date of this section ~~remains~~ remain in effect for the institutions under ~~its jurisdiction~~ their respective jurisdictions, including the state institutions of higher education known as Marshall University and West Virginia University.
(2) The legislative rules shall set forth at the least the following as pertains to all state institutions of higher education:
(A) The indicators used to measure the degree to which the goals and objectives are being met;
(B) Uniform definitions for the various data elements to be used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to:
(i) Provide measurable evidence that the pursuits of the institution are targeting the educational needs of the citizens of the state and the components of the compacts and master plans;
(ii) Delineate the goals and benchmarks for an institution so that the Commission, or Council or Legislative Oversight Commission can precisely measure the degree to which progress is being made toward achieving the goals for post-secondary education provided in section one-a, article one of this chapter; and
(iii) Distinctly identify specific goals within the master plan or compact of an institution that are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the legislative rule established by the Council shall set forth at the least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify:
(i) The degree to which progress is being made by institutions toward meeting the goals for post-secondary education and the essential conditions provided in section three, article three-c of this chapter;
(ii) Information and data necessary to be considered by the Council in making the determination required by section three, article two-c of this chapter;
(iii) The degree to which progress is being made in the areas considered by the Council for the purpose of making the determination required by section three, article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to support an objective determination by the Council that an institution's progress toward achieving the goals for post-secondary education and the essential conditions is so deficient that implementation of the provisions of section four, article two-c of this chapter is warranted and necessary.
(g) The Commission or the Council, as appropriate, shall approve the master plans developed by the boards of governors and the institutional boards of advisors pursuant to section four, article two-a of this chapter or section one, article six of this chapter, as appropriate.
§18B-1A-6. Graduate education.
(a) Intent. -- It is the intent of the Legislature to address the need for high quality graduate education programs to be available throughout the state.
(b) Findings. -- The Legislature makes the following findings:
(1) Since West Virginia ranks below its competitor states in graduate degree production, particularly in the areas that are important to the state's competitive position in the new economy of the twenty-first century, there is a considerable need for greater access to graduate education, especially at the master's degree level;
(2) There is a significant disparity in access to part-time graduate degree programs among the different regions of the state and part-time graduate enrollments are heavily concentrated in the counties immediately surrounding Marshall University and West Virginia University;
(3) There is a particular need for increased access to graduate programs linked directly to the revitalization of the regional economies of the state; and
(4) There is a particular need for improved quality and accessibility of preservice and in-service programs for teachers in subject matter fields.
(c) In order to meet the need for graduate education, the Commission ~~shall be~~ is responsible for accomplishing the following:
(1) Ensuring that West Virginia University and Marshall University ~~expand~~ assist in the expansion of access to master's degree programs throughout West Virginia. ~~with.~~ These institutions shall place a strong emphasis on collaboration with the baccalaureate colleges and community and technical colleges in each region when funds are available;
(2) Ensuring that any institution providing a master's degree program under the provisions of this section provides a meaningful, coherent program by offering courses in such a way that students, including place-bound adults, have ample opportunity to complete a degree in a reasonable period of time;
(3) Focusing on providing courses that enhance the professional skills of teachers in their subject areas; ~~and~~
(4) Ensuring that programs are offered in the most cost-effective manner to expand access throughout the region and the state; and
(5) Determining the graduate program needs of each region.
(d) Bluefield State College, Concord ~~College~~ University, Fairmont State ~~College~~ University, Glenville State College, Shepherd ~~College~~ University, West Liberty State College and West Virginia State ~~College~~ University shall meet the need for graduate education in their regions ~~by following the procedures outlined below~~ pursuant to this subsection and subsection (c) of this section.
(1) If an institution's proposal to offer a Master's degree receives the approval of the institution's regional accrediting association, that Master's degree may be offered solely by the institution.
(2) If an institution does not receive the approval of its regional accrediting association for a proposal to offer a Master's degree, that institution may broker or collaborate with another higher education institution to develop a revised proposal for offering that brokered or collaborative Master's degree.
(1) The institutions shall develop as graduate centers for their regions to broker access to graduate programs by contracting with accredited colleges and universities in and out of the state. These programs shall be related directly to each region's education and economic needs.
(2) The institutions may begin collaborative programs with other institutions leading to the granting of master's degrees in selected areas that are demonstrated to be related directly to the needs of their regions and that draw on faculty strengths. An institution may continue to offer collaborative programs aimed at meeting the documented needs with the approval of the Commission or, if a sustained need still exists, the institution may move to the next level.
(3) If the graduate education needs of the region have not been met through brokering and collaborative programs, the institution may explore the option of beginning its own graduate-level program leading to the granting of a master's degree. The institution may begin its own master's degree program if it can meet the following conditions as determined by the Commission:
~~(A) Demonstrate that the institution has successfully completed each of the steps required before exploring development of its own master's degree program;~~
~~(B) Provide evidence based on experience gained in the brokering and collaborative arrangements that a sustained demand exists for the program;~~
~~(C) Demonstrate that the baccalaureate institution has the capacity to provide the program;~~
~~(D) Demonstrate that the core mission of the baccalaureate institution will not be impaired by offering the graduate program;~~
~~(E) Provide evidence that the graduate program has a reasonable expectation of being accredited;~~
~~(F) Demonstrate that the need documented in subdivision (B) of this subsection is not currently being met by any other state institution of higher education; and~~
~~(G) The Commission may designate one of the institutions listed in subsection (d) of this section to develop and implement no more than four of its own masters level programs as a pilot project:~~ ~~Provided~~, That the selected institution shall move toward and achieve regional accreditation of the master's program within a reasonable time as determined by the Commission. The institution shall be selected based on the following:
~~(i) Sufficient credentialed faculty to offer quality programs in the areas selected;~~
~~(ii) Sufficient unmet demand for the programs; and~~
~~(iii) Sustainable unmet demand based on generally accepted projections for population growth in the region served by the institution.~~
~~The programs authorized by this clause may not be restricted by the provisions of subdivisions (1), (2) and (3) of this subsection nor by the provisions of subsection (e) of this section.~~
(e) There is an urgent need for master's degree programs for teachers in disciplines or subject areas, such as mathematics, science, history, literature, foreign languages and the arts. Currently, master's-level courses in education that are offered in the regions served by the state universities are primarily in areas such as guidance and counseling, administration, special education and other disciplines unrelated to teaching in subject areas. If this need is not being met in a region through the procedure established in subsection (d) of this section, then the graduate center in that region may plan a master's degree program in education focused on teaching in subject area fields in which the demand is not being met. No institution may begin a graduate program under the provisions of this section until the program has been reviewed and approved by the Commission. The Commission shall approve only those programs, as authorized by this subsection, that emphasize serving the needs of teachers and schools in the colleges' immediate regions. In determining whether a program should be approved, the Commission also shall rely upon the recommendations of the statewide task force on teacher quality provided ~~for~~ in section eight, article fourteen of this chapter.
(f) The Commission shall review all graduate programs being offered under the provisions of this section and, using the criteria established for program startup in subsection (d) of this section, determine which programs should be discontinued.
(g) ~~At least annually~~ At least biennually beginning two thousand seven and continuing through two thousand thirteen, the governing boards shall evaluate graduate programs developed pursuant to the provisions of this section and report to the Commission on the following:
(1) The number of programs being offered and the courses offered within each program;
(2) The disciplines in which programs are being offered;
(3) The locations and times at which courses are offered;
(4) The number of students enrolled in the program; and
(5) The number of students who have obtained master's degrees through each program.
The governing boards shall provide the Commission with any additional information the Commission requests in order to make a determination on the viability of a program.
(h) In developing any graduate program under the provisions of this section, institutions shall consider delivering courses at times and places convenient to adult students who are employed full time. Institutions shall place an emphasis on extended degree programs, distance learning and off-campus centers which utilize the cost-effective nature of extending existing university capacity to serve the state rather than duplicating the core university capacity and incurring the increased cost of developing master's degree programs at other institutions throughout the state.
(i) Brokering institutions shall invite proposals from other public institutions of higher education for service provision prior to contracting with other institutions: Provided, That if institutions propose providing graduate programs in service areas other than in their responsibility district, the institution seeking to establish a program shall work through the district's lead institution in providing those services.
(j) In addition to the approval required by the Commission, authorization for any institution to offer a master's degree program under the provisions of this section is subject to the formal approval processes established by the governing boards.
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 and objectives found in section one-a, article one 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 of Marshall University and West Virginia University, respectively. To that end, the Commission has the following powers and duties relating to the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article one-a of this chapter to address major challenges facing the state, including, but not limited to, the goals and objectives found in section one-a, article one of this chapter and including specifically those goals and objectives pertaining to the compacts created pursuant to section two, article one-a of this chapter and to develop and implement the master plan described in section nine of this article for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly with the Council of a financing policy for higher education in West Virginia, except that the governing boards of Marshall University and West Virginia University each shall develop a financing policy for the state institutions of higher education known as Marshall University and West Virginia University, respectively, without the approval of the Commission. Each ~~The~~ policy shall meet the following criteria:
(A) Provide an adequate level of education 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 deferred maintenance;
(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 of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen capacity for support of community and technical college education established by the West Virginia Council for Community and Technical College Education pursuant to the provisions of section six, article two-b 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 higher education institutions and the higher education systems as a whole accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact, subject to the provisions of section two, article one-a of this chapter;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to:
(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 achievement towards state policy priorities and institutional missions pursuant to section two, article one-a of this chapter;
(10) Annually report to the Legislature and to the Legislative Oversight Commission on Education Accountability during the January interim meetings 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 goals stated in the compacts and progress of the institutions and the higher education system as a whole in meeting the goals and objectives set forth in section one-a, article one of this chapter;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this chapter and recommendations for any changes necessary to assure access to high-quality, high-demand education programs for West Virginia residents;
(C) The priorities established for capital investment needs pursuant to subdivision (11) of this subsection and the justification for such priority;
(D) Recommendations of the Commission for statutory changes needed to further the goals and objectives set forth in section one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for capital investments and for determining priorities for these investments, except the governing boards of Marshall University and West Virginia University, respectively, may each develop a formal process for identifying capital needs and priorities for the state institutions of higher education known as Marshall University and West Virginia University without the approval of the Commission. It is the responsibility of the Commission to assure a fair distribution of funds for capital projects between the Commission and the Council. To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the Council for capital investment for the institutions under the Council's jurisdiction pursuant to subsection (b), section six, article two-b of this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on which the list was received;
(C) Select a minimum of three projects from the list submitted by the Council to be included on the ranked list established by the Commission. At least one of the three projects selected must come from the top two priorities established by the Council.
(12) Maintain guidelines for institutions to follow concerning extensive capital projects except the governing boards of Marshall University and West Virginia University are not subject to the provisions of this subdivision as it relates to the state institutions of higher education known as Marshall University and West Virginia University. The guidelines shall provide a process for developing capital projects, including, but not limited to, the notification by an institution to the Commission of any proposed capital project which has the potential to exceed one million dollars in cost. Such a project may not be pursued by an institution without the approval of the Commission. An institution may not participate directly or indirectly with any public or private entity in any capital project which has the potential to exceed one million dollars in cost;
(13) Acquire legal services as are considered necessary, including representation of the Commission, its institutions, 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;
(14) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Commission and the Council, in accordance with the provisions of article four of this chapter;
(16) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
(17) 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 and objectives as set forth in the institutional compact and in section one-a, article one of this chapter;
(18) Approve the total compensation package from all sources for presidents of institutions under its jurisdiction, as proposed by the governing boards. 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;
(19) 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;
(20) 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;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of this subsection;
(22) Jointly with the Council, develop and implement an oversight plan to manage systemwide technology such as 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 state institutions of higher educations are not subject to the jurisdiction of the Chief Technology Officer for any purpose.
(23) Establish and implement policies and procedures to ensure that students 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 is consistent with sound academic policy;
(24) Establish and implement policies and procedures to ensure that students 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 is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students 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 is consistent with sound academic policy;
(26) Establish and implement policies and programs, in cooperation with the Council and the institutions of higher education, through which students who have 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 they have the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate 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 is 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 and objectives pursuant to section one-a, article one of this chapter;
(28) Develop, establish and implement ~~guidelines~~ a rule for higher education governing boards and institutions to follow when considering capital projects. The guidelines shall ~~include, but~~ ~~not be limited to,~~ ~~the following~~
(A) That the governing boards and institutions not approve or promote projects that give competitive advantage to new private sector projects over existing West Virginia businesses, unless the Commission determines such private sector projects are in the best interest of the students, the institution and the community to be served; and
~~(B) That~~ assure that the governing boards and institutions do not approve or promote capital projects involving private sector businesses which would have the effect of reducing property taxes on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due on newly developed or future properties;
(29) Consider and submit to the appropriate agencies of the executive and legislative branches of state government a budget that reflects recommended appropriations from the Commission and the institutions under its jurisdiction, except for the state institutions of higher education known as Marshall University and West Virginia University. The governing boards of Marshall University and West Virginia University each shall consider and submit to the Commission a single budget for the state institutions of higher education know as Marshall University and West Virginia University, respectively, that reflects recommended appropriations for those institutions. The Commission shall submit as part of its budget proposal the separate recommended appropriations it received from those governing boards. The Commission shall submit as part of its budget proposal the separate recommended appropriations it received from the Council, both for the Council and the institutions under the Council's jurisdiction. The Commission annually shall submit the proposed institutional allocations based on each institution's progress toward meeting the goals of its institutional compact;
(30) The Commission has the authority to assess institutions under its jurisdiction, including the state institutions of higher education known as 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 institutions of higher education for qualifying noncapital expenditures incurred in the provision of 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 the thirtieth day of June, two thousand, 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 the provisions of article three-a, chapter twenty-nine-a of this code and section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the purposes of this chapter. The Commission and the Council shall promulgate a uniform joint legislative rule for the purpose of standardizing, as much as possible, the administration of personnel matters among the institutions of higher education;
(34) Determine when a joint rule among the governing boards of the institutions under its jurisdiction is necessary or required by law and, in those instances, in consultation with the governing boards of all the institutions under its jurisdiction, promulgate the joint rule;
(35) In consultation with the Governing Boards of Marshall University and West Virginia University, implement a policy 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; ~~and~~
(36) Promulgate a joint rule with the Council establishing tuition and fee policy for all institutions of higher education, other than state institutions of higher education known as Marshall University and West Virginia University which are subject to 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; and
(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 institutions that provide medical care to students to provide access to the vaccine for those who wish to receive it.
(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 institutions under its jurisdiction except state institutions of higher education known as Marshall University and West Virginia University, including the use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes: Provided, That the commission shall review and approve academic programs of the state institutions of higher education known as Marshall University and West Virginia University that are offered off the campus of those institutions;
(5) Development of budget and allocation of resources, including reviewing and approving institutional operating budgets and capital budgets for all institutions, except for the state institutions of higher education known as Marshall University and West Virginia University, and distributing incentive and performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the vice chancellor for administration, including promulgation of any 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) Development, establishment and implementation of information, assessment and accountability systems, including maintenance of statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the Council, developing, establishing and implementing policies 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 pursuant to the findings and policy recommendations ~~to be determined~~ ~~as set forth in~~ required by section eleven of this article;
(10) Development, implementation and oversight of statewide and region-wide 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 funding from any source; and
(11) Quality assurance that intersects with all other duties of the Commission particularly in the areas of research, data collection and analysis, planning, policy analysis, program review and approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided ~~for~~ in subsections (a) and (b) of this section and any other powers and duties as may be assigned to it by law, the Commission has such other powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The Commission is authorized to withdraw specific powers of any governing board of an institution under its jurisdiction for a period not to exceed two years, if the Commission makes a determination that:
(1) The governing board has failed for two consecutive years to develop an institutional compact as required in article one 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 board of governors according to state law; or
(3) Other circumstances which, in the view of the Commission, severely limit the capacity of the board of governors to carry out its duties and responsibilities.
~~(4)~~ The period of withdrawal of specific powers may not exceed two years during which time the Commission is authorized to take steps necessary to reestablish the conditions for restoration of sound, stable and responsible institutional governance.

§18B-1B-5. Employment of Chancellor for Higher Education; office; powers and duties generally; employment of vice chancellors.

(a) The Commission, created pursuant to section one of this article, shall employ a Chancellor for Higher Education who is the Chief Executive Officer of the Commission and who serves at its will and pleasure.
(b) The Commission shall set the qualifications for the position of chancellor and shall conduct a thorough nationwide search for qualified candidates. A qualified candidate is one who meets at least the following criteria:
(1) Possesses an excellent academic and administrative background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within a system of higher education while employed as chancellor.
(c) The Commission shall conduct written performance evaluations of the chancellor annually and may offer the chancellor a contract not to exceed three years. At the end of each contract period, the Commission shall review the evaluations and make a determination by vote of its members on continuing employment and compensation level.
(d) When filling a vacancy in the position of chancellor, the Commission shall enter into an initial employment contract for one year with the candidate selected. At the end of the initial contract period, and each contract period thereafter, the Commission shall review the evaluations and make a determination by vote of its members on continuing employment and compensation level for the chancellor.
(e) ~~The~~ chancellor shall be compensated on a basis in excess of, but not to exceed twenty percent greater than, the base salary of any president of a state institution of higher education or the administrative head of a governing board The Commission shall determine the compensation of the Chancellor for Higher Education. The Commission may not increase the salary of the individual employed as Chancellor on the effective date of this section.
(f) The Commission may employ a Vice Chancellor for Health Sciences who serves at the will and pleasure of the Commission. The Vice Chancellor for Health Sciences shall coordinate the West Virginia University School of Medicine, the Marshall University School of Medicine and the West Virginia School of Osteopathic Medicine and also shall provide assistance to the governing boards on matters related to medical education and health sciences. The Vice Chancellor for Health Sciences shall perform all duties assigned by the chancellor, the Commission and state law. In the case of a vacancy in the office of Vice Chancellor of Health Sciences, the duties assigned to this Office by law are the responsibility of the Chancellor or a designee.
(g) The Commission shall employ a Vice Chancellor for Administration pursuant to section two, article four of this chapter.
(h) The Commission may employ a Vice Chancellor for State Colleges who serves at the will and pleasure of the Commission. It is the duty and responsibility of the Vice Chancellor for State Colleges to:
(1) Provide assistance to the Commission, the Chancellor and the state colleges on matters related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the institutional presidents and institutional boards of governors of each state college;
(3) Serve as an advocate and spokesperson for the state colleges to represent them and to make their interests, views and issues known to the Chancellor, the Commission and governmental agencies;
(4) Perform all duties assigned by the Chancellor, the Commission and state law.
In addition, the Vice Chancellor for State Colleges has the responsibility and the duty to provide staff assistance to the institutional presidents and governing boards to the extent practicable.
(i) On behalf of the Commission, the chancellor may enter into agreements with any state agency or political subdivision of the state, any state higher education institution or any other person or entity to enlist staff assistance to implement the powers and duties assigned by the Commission or by state law.
(j) The Chancellor is responsible for the daily operations of the Commission and has the following responsibilities relating to the Commission and the institutions under its jurisdiction:
(1) To carry out policy and program directives of the Commission;
(2) To develop and submit annual reports on the implementation plan to achieve the goals and objectives set forth in section one-a, article one of this chapter and in the institutional compacts;
(3) To prepare and submit to the Commission for its approval the proposed budget of the Commission including the offices of the Chancellor and the Vice Chancellors;
(4) To assist the governing boards in developing rules, subject to the provisions of section six, article one of this chapter. Nothing in this chapter requires the rules of the governing boards to be filed pursuant to the rule-making procedures provided in article three-a, chapter twenty-nine-a of this code. The ~~chancellor is~~ Commission and the Council, either separately or jointly, as appropriate, are responsible for ensuring that any policy which is required to be uniform across the institutions is applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned by the Commission or by state law.
(k) The Chancellor shall be reimbursed for all actual and necessary expenses incurred in the performance of all assigned duties and responsibilities.
(l) The Chancellor, with the Commission, advises the Legislature on matters of higher education in West Virginia. The Chancellor shall work closely with the Legislative Oversight Commission on Education Accountability and with the elected leadership of the state to ensure that they are fully informed about higher education issues and that the Commission fully understands the goals for higher education that the Legislature has established by law.
(m) The Chancellor may design and develop for consideration by the Commission new statewide or regional initiatives in accordance with the goals set forth in section one-a, article one of this chapter and the public policy agenda articulated by the Commission. In those instances where the initiatives to be proposed have a direct and specific impact or connection to community and technical college education as well as to baccalaureate and graduate education, the Chancellor for Higher Education and the Chancellor for Community and Technical College Education shall design and develop the initiatives jointly for consideration by the Commission and the Council.
(n) The Chancellor shall work closely with members of the State Board of Education and with the State Superintendent of Schools to assure that the following goals are met:
(1) Development and implementation of a seamless kindergarten-through-college system of education; and
(2) Appropriate coordination of missions and programs. To further the goals of cooperation and coordination between the Commission and the State Board of Education, the Chancellor serves as an ex officio, nonvoting member of the State Board of Education.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of presidents of the ~~public~~ state institutions of higher education shall be made as follows:
(1) Subject to the approval of the Commission, the governing board of the institution appoints a president for Bluefield State College, Concord ~~college~~ University, Fairmont State ~~college~~ University, Glenville State College, Marshall University, Shepherd ~~college~~ University, West Liberty State College, West Virginia School of Osteopathic Medicine, West Virginia State ~~college~~ University and West Virginia University.
(2) Subject to the approval of the Council and to the provisions of article three-c of this chapter, the Governing Board of West Virginia University appoints the President of the regional campus known as West Virginia University at Parkersburg. When selecting candidates for consideration to fill the office of president, the Governing Board shall use the search and screening process provided ~~for~~ in section one, article six of this chapter.
Subject to the approval of the Commission, the Governing Board of West Virginia University appoints the President of the regional campus known as West Virginia University Institute of Technology. The president of each regional campus serves at the will and pleasure of the appointing governing board.
(3) Subject to the approval of the Council, the governing board of the community and technical college appoints a president for Eastern West Virginia Community and Technical College, Southern West Virginia Community and Technical College and West Virginia Northern Community and Technical College.
(4) Subject to the approval of the Council, the governing board of the sponsoring institution appoints a president for each administratively linked community and technical ~~colleges~~ college which shares a physical campus location with the sponsoring institution, including Fairmont State Community and Technical College, Marshall Community and Technical College, the Community and Technical College at West Virginia University Institute of Technology and West Virginia State Community and Technical College.
(5) Subject to the approval of the Council, the governing board of the community and technical college appoints a president for each administratively linked community and technical college which does not share a physical campus location with the sponsoring institution, including New River Community and Technical College and the Community and Technical College of Shepherd.
Subject to the approval of the Council, the governing board of the sponsoring institution appoints a president for each of these two community and technical colleges until the institution gains independent accreditation.
(b) Other appointments. -- ~~Effective the first day of July, two thousand five,~~ The institutional president ~~shall appoint~~ appoints a provost to be the administrative head of the Potomac campus of West Virginia University.
(c) Evaluation of presidents. -- The appointing governing board shall conduct written performance evaluations of each institution's president, including the presidents of administratively linked community and technical colleges. Evaluations shall be done in every fourth year of employment as president, recognizing unique characteristics of the institution and utilizing institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate governing board and persons knowledgeable in higher education matters who are not otherwise employed by a governing board. A part of the evaluation shall be a determination of the success of the institution in meeting the requirements of its institutional compact.
§18B-1B-13. Study of issues affecting employees in public higher education.
(a) In consultation with the Council, the governing boards, the State Advisory Council of Faculty established pursuant to section two, article six of this chapter and the State Advisory Council of Classified Employees established pursuant to section five, article six of this chapter, the Commission shall conduct a study relating to issues affecting employees in public higher education. For the purposes of this section only, the Governor shall appoint three employees from state institutions of higher education to participate in the study and to represent the interests of employees, including one from Marshall University, one from West Virginia University and one from any other state institution of higher education.
(b) The study includes, but is not limited to, the following:
(1) Reviewing statutes, rules, guidelines, interpretations and other statements of policy;
(2) Surveying the capacity, professional training and practices of human resources staff by institution, including the number of staff employed in each institutional human resources office, their job titles and responsibilities;
(3) Evaluating the strengths and weaknesses of the statewide classification and compensation system and examining alternatives;
(4) Reviewing job titles and responsibilities to determine if certain families of jobs should be classified or nonclassified;
(5) Evaluating and recommending best practices and methods to establish salary rates for faculty, classified employees, nonclassified employees and administrators, including:
(A) Developing measurable indicators of 'merit' and 'performance' if these terms are to be used in a system for determining benefits;
(B) Developing reliable instruments of performance evaluation for all classes of employees; and
(C) Exploring the feasibility of authorizing employee bonuses under a merit or performance-based system;
(6) Determining the most effective and efficient method to train administrators who perform employee evaluations and assuring that they use these instruments appropriately;
(7) Exploring justifications for maintaining or removing the internal preference for hiring, promoting and transferring classified employees pursuant to article seven of this chapter;
(8) Developing recommendations for a fair and rational policy covering reductions in force;
(9) Identifying unnecessary state-level paperwork requirements related to personnel and recommending methods to eliminate them while maintaining strict fiscal accountability;
(10) Evaluating the strengths and weaknesses of statewide tenure and promotion policies for faculty and examining alternatives;
(11) Evaluating the feasibility of implementing differential salary rates based on cost of living or other relevant factors;
(12) Determining whether employees whose salaries are derived from funds other than state appropriations should be subject to the provisions of article seven of this chapter and how such employees should be treated in any policy on reductions in force; and
(13) Determining the true costs or benefits as well as the advantages and disadvantages that may accrue as a result of decisions to outsource certain institutional functions. In order to perform a cost/benefit analysis, the Commission must first develop an accurate database of institutional practices including the number of positions being outsourced or filled by temporary employees and the true amount of cost savings, if any.
(c) The Commission shall report to the Legislative Oversight Commission on Education Accountability by the first day of October, two thousand five, and every six months thereafter on the progress of the study.
(d) The Commission shall complete its work and report its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability by the first day of December, two thousand eight.
(1) In making its recommendations, the Commission shall take into account the impact of proposed changes on employees and the communities in which state institutions of higher education are located; and
(2) The Commission shall include documentation to support any conclusion or recommendation included as a part of their findings and shall attach estimates of cost or savings to each recommendation, if that recommendation has a fiscal impact on any public agency or institution.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-3. Supervision of governing boards; promulgation of rules.
(a) For the transition year beginning on the first day of July, two thousand and ending on the thirtieth day of June, two thousand one, the Interim Governing Board is subject to the supervision of the secretary of education and the arts. Rules adopted by the governing board are subject to approval by the secretary of education and the arts.
~~(b)~~ (a) ~~Effective the first day of July, two thousand one, and thereafter,~~ The governing boards are subject to the supervision of the ~~chancellor~~ Commission or the Council, as appropriate, except for the governing boards of Marshall University and West Virginia University as it relates to the state institutions of higher education know as Marshall University and West Virginia University. The Chancellor for Higher Education and the Chancellor for Community and Technical College Education, under the supervision of their respective boards, is are responsible for the coordination of policies and purposes 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 ~~for~~ in the compacts and in section one-a, article one of this chapter.
~~(c)~~ (b) The governing boards and the State Board of Education shall provide any and all information requested by the ~~chancellor~~ Commission or the Council in a 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 institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its jurisdiction, except the administratively linked community and technical colleges which retain an institutional board of advisors shall develop their master plans subject to the provisions of section one, article six of this chapter.
(1) The ultimate responsibility for developing and updating the master plans at the institutional level resides with the board of governors, or board of advisors, as applicable. ~~but~~ The ultimate responsibility for approving the final version of the institutional master plans, including periodic updates, resides with the governing boards of Marshall University and West Virginia University for the state institutions of higher education known as Marshall University and West Virginia University, respectively, and with the Commission or Council, as appropriate, for all other state institutions of higher education.
(2) Each master plan shall include, but not be limited to, the following:
~~(1)~~ (A) A detailed demonstration of how the master plan will be used to meet the goals and objectives of the institutional compact;
~~(2)~~ (B) A well-developed set of goals outlining missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinates and projections necessary in such a plan to assure that the needs of the institution's area of responsibility for a quality system of higher education are addressed;
~~(3)~~ (C) Documentation of the involvement of the Commission or Council, as appropriate, institutional constituency groups, clientele of the institution and the general public in the development of all segments of the institutional master plan.
(3) The plan shall be established for periods of not less than three nor more than six years and shall be revised periodically as necessary, including the addition or deletion of degree programs as, in the discretion of the appropriate governing board, may be necessary;
(c) Prescribe for the institutions under its jurisdiction, in accordance with its master plan and the compact for each institution, specific functions and responsibilities to meet the higher education needs of its area of responsibility and to avoid unnecessary duplication;
(d) Direct the preparation of a budget request for the institutions under its jurisdiction, such request to relate directly to missions, goals and projections as found in the institutional master plans and the institutional compacts;
(e) Consider, revise and submit to the Commission or Council, as appropriate, a budget request on behalf of the institutions under its jurisdiction;
(f) Review, at least every five years, all academic programs offered at the institutions under its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation to its institutional master plan, the institutional compact and the education and workforce needs of its responsibility district. As a part of the review, each governing board shall require the institutions 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;
(g) The governing boards shall ensure that the sequence and availability of academic programs and courses offered by the institutions under their 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 institutions under its jurisdiction is transferable to any other state institution of higher education for credit with the grade earned;
(h) Subject to the provisions of article one-b of this chapter, the appropriate governing board has the exclusive authority to 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 utilize one nationally recognized teacher education program accreditation standard as the appropriate standard for program evaluation;
(i) Utilize faculty, students and classified employees in institutional-level planning and decisionmaking when those groups are affected;
(j) Subject to the provisions of federal law and pursuant to the provisions of article nine 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, personnel classification, compensation and discipline for employees at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and appeals. Notwithstanding any other provision of this code to the contrary, the procedure established in article six-a, chapter twenty-nine of this code is the exclusive mechanism for hearing prospective employee grievances and appeals. In construing the application of said article to grievances of higher education employees, the following apply:
(1) 'Chief administrator' means the president of a state institution of higher education as to those employees employed by the institution and the appropriate chancellor as to those employees employed by the Commission or Council;
(2) The State Division of Personnel may not be a party to nor have any authority regarding a grievance initiated by a higher education employee; and
(3) The provisions of this section supersede and replace the grievance procedure set out in article twenty-nine, chapter eighteen of this code for any grievance initiated by a higher education employee after the first day of July, two thousand one;
(l) Solicit and utilize or expend voluntary support, including financial contributions and support services, for the institutions under its jurisdiction;
(m) Appoint a president for the institutions under its jurisdiction subject to the provisions of section six, article one-b of this chapter;
(n) Conduct written performance evaluations of the president pursuant to section six, article one-b of this chapter;
(o) Employ all faculty and staff at the institution under its jurisdiction. Such employees operate under the supervision of the president, but are employees of the governing board;
(p) Submit to the Commission or Council, as appropriate, no later than the first day of November of each year an annual report of the performance of the institution under its jurisdiction during the previous fiscal year as compared to stated goals in its master plan and institutional compact;
(q) 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 public institution of higher education or at off-campus locations in the institution's responsibility district. To accomplish this goal, the boards are permitted to share resources among the various groups in the community;
(r) Provide and transfer funding and property to certain corporations pursuant to section ten, article twelve of this chapter;
(s) 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 institutional compact. If a governing board elects to delegate any of its power and control under the provisions of this subsection, it shall enter such delegation in the minutes of the meeting when the decision was made and shall notify the ~~appropriate chancellor~~ Commission or Council, as appropriate. Any such delegation of power and control may be rescinded by the appropriate governing board, ~~or the chancellor~~ 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 boards of Marshall University or West Virginia University as they relate to the state institutions of higher education known as Marshall University and West Virginia University;
(t) Unless changed by the Commission or the Council, as appropriate, the governing boards shall continue to abide by existing rules setting forth standards for acceptance of advanced placement credit for their respective institutions. Individual departments at institutions of higher education may, upon approval of the institutional faculty senate, require higher scores on the advanced placement test than scores designated by the appropriate governing board when the credit is to be used toward meeting a requirement of the core curriculum for a major in that department;
(u) Each governing board, or its designee, shall consult, cooperate and work 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 special revenue and appropriated state funds at the institutions under its jurisdiction that ensures that properly submitted requests for payment be paid on or before due date but, in any event, within fifteen days of receipt in the State Auditor's office;
(v) The governing boards in consultation with the appropriate chancellor and the Secretary of the Department of Administration shall 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 and transfers at the institutions under their jurisdiction. Each such personnel transaction shall be accompanied by the appropriate standardized system or forms which will be submitted to the respective governing board and the Department of Finance and Administration;
(w) Transfer of funds. --
(1) Notwithstanding any other provision of this code to the contrary, the governing boards may transfer funds from any account specifically appropriated for their use to any corresponding line item in a general revenue account at any agency or institution under their jurisdiction as long as such transferred funds are used for the purposes appropriated.
(2) The governing boards may transfer funds from appropriated special revenue accounts for capital improvements under their jurisdiction to special revenue accounts at agencies or institutions under their jurisdiction as long as such transferred funds are used for the purposes appropriated.
(x) Notwithstanding any other provision of this code to the contrary, the governing boards may acquire legal services as are considered necessary, including representation of the governing boards, their institutions, 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 boards may, but are not required to, call upon the Attorney General for legal assistance and representation as provided by law; ~~and~~
(y) Each governing board which has under its jurisdiction an administratively linked community and technical college or a regional campus offering community and technical college education programs shall create within the administrative structure of its governing board a subcommittee for community and technical college education. The subcommittee shall have at least four members, one of whom is the chairperson of the board of advisors of the community and technical college or, in the case of the Governing Board of West Virginia university, both the member representing the community and technical college and the member representing the regional campus; and
(z) A governing board may contract and pay for disability insurance for a class or classes of employees at a state institution of higher education under its jurisdiction.
§18B-2A-7. Additional powers and duties of governing boards.
When the institutional operating budgets of all state institutions of higher education have achieved a level of funding comparable, but not less than eighty percent, with their respective peers, as established pursuant to section three, article one-a of this chapter, but not sooner than the first day of July, two thousand ten, all state institutions of higher education are granted the powers and authorities previously granted to the state institutions of higher education known as Marshall University and West Virginia University pursuant to:
(1) Section four-a, article six, chapter five of this code;
(2) Section twelve-b, article one, chapter twelve of this code;
(3) Sections five, six, seven and eight, article three, chapter twelve of this code;
(4) Sections three and six, article one of this chapter;
(5) Section two article one-a of this chapter;
(6) Section four, article one-b of this chapter;
(7) Sections three and four, article two-a of this chapter;
(8) Sections two and three, article three of this chapter;
(9) Sections five, five-a, six and seven, article four of this chapter;
(10) Sections three, four, seven and nine, article five of this chapter; and
(11) Sections one and six-a, article ten of this chapter.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL COLLEGE EDUCATION.

§18B-2B-9. Permits required for correspondence, business, occupational and trade schools; surety bonds and fees; issuance, renewal and revocation of permit; reports; rules; penalty and enforcement.

(a) The following words when used in this section have the meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:
(1) 'Proprietary schools that award specialized associate degrees' means institutions of higher education; and
(2) 'Specialized associate degrees' means degrees awarded by such institutions pursuant to a program of not fewer than two academic years.
(b) Nothing in this section qualifies proprietary schools for additional state moneys not otherwise qualified under other provisions of this code.
(c) It is unlawful for any person representing a correspondence, business, occupational or trade school inside or outside this state, as these are defined by the Council by rule promulgated in accordance with article three-a, chapter twenty-nine-a of this code, to solicit, sell or offer to sell courses of instruction to any resident of this state for consideration or remuneration unless the school first applies for a permit, or obtains a permit, from the Council in the manner and on the terms herein prescribed, except this section does not apply to private organizations which offer only tax return preparation courses. The rule previously promulgated by the State College System Board of Directors and transferred to the Council by section six, article two-b, chapter eighteen-b of this code remains in effect until rescinded or amended by the Council.
(1) All private training or educational institutions, schools or academies or other organizations shall apply for a permit from the Council on forms provided by the Council.
(2) Each initial application shall be accompanied by a nonrefundable fee of two thousand dollars. The Council also may assess an additional fee based on any additional expense required to evaluate the application.
(3) The Council shall make a determination on the initial permit application within ninety days after receipt of the application and fee.
(4) An applicant for an initial permit shall show proof at the time of filing an application that adequate facilities are available and ready for occupancy and that all instructional equipment, books and supplies and personnel are in place and ready for operation. A representative of the Council shall make an on-site visit to the facilities of all new applicants to confirm their readiness for operation prior to issuance of the initial permit if the facilities are located in West Virginia. (5) A school is considered to be established under the provisions of this article on the date it first begins to operate lawfully. An established school is not required to reapply for a permit as a result of changes in governance; administration; ownership; or form of operation.
(6) After the first permit year, an annual fee of five hundred dollars is imposed on each school for each campus it operates in this state.
(d)Each application shall be accompanied by a surety bond in the penal sum of thirty-five thousand dollars for any school which has its physical facilities located in this state and which has operated in this state for at least ten years:
(1) If the school has changed ownership within the last ten years by transfer of ownership control to a person who is a spouse, parent, sibling, child or grandchild of the previous owner, the surety bond shall continue in the penal sum of thirty-five thousand dollars.
(2) Any school which has operated in West Virginia for fewer than ten years, excluding those schools which have changed ownership within the last ten years as provided in subdivision (1) of this section, and any school located in another state which applies for a permit hereunder, shall provide a surety bond of fifty thousand dollars.
(3) Any school may be required to increase its bond to one hundred fifty thousand dollars if either of the following conditions apply:
(A) The school's accreditation is terminated for cause; or
(B) The school's institutional eligibility under the Higher Education Act of 1965, as amended, has been terminated for cause. Expiration, nonrenewal or voluntary relinquishment of accreditation or institutional eligibility under the Higher Education Act, or failure to meet the requirements of one or more programs under the Act, are not considered to be a termination for cause.
(4) Any school may be required to increase its bond to an amount not to exceed four hundred thousand dollars if, in accordance with the standards of the American Institute of Certified Public Accountants, the school's audited financial statements are qualified because the school's continued financial viability as an ongoing concern is in doubt and the Council determines an increased bond is reasonably necessary to protect the financial obligations legally due the students then enrolled at the institution.
(A) A school may be required to maintain the increased bonding requirements described above until all students attending classes at the date of termination either graduate or withdraw.
(B) The bond may be continuous and shall be conditioned to provide indemnification to any student suffering loss as a result of any fraud or misrepresentation used in procuring the student's enrollment, failure of the school to meet contractual obligations, or failure of the school to meet the requirements of this section.
(C) The bond shall be given by the school itself as a blanket bond covering all of its representatives.
(D) The surety on a bond may cancel the same upon giving thirty days' notice in writing to the principal on the bond and to the state Council and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of the cancellation.
(e) A permit shall be valid for one year corresponding to the effective date of the bond and may be renewed upon application, accompanied by the required fee and the surety bond as herein required. All fees collected for the issuance or renewal of a permit shall be deposited in the State Treasury to the credit of the Council.
(f) The Council may refuse a permit to any school if the Council finds that the school engages in practices which are inconsistent with this section or with rules issued pursuant thereto.
(g) permit issued hereunder may be suspended or revoked by the Council for fraud or misrepresentation in soliciting or enrolling students, for failure of the school to fulfill its contract with one or more students who are residents of West Virginia or for violation of or failure to comply with any provision of this section or with any regulation of the Council pertinent thereto.
(1) Before taking any action to suspend or revoke a school's permit, the Council shall give the school fifteen days' notice and convene a hearing, if a hearing is requested by the school.
(2) Prior to the Council taking any adverse action, including refusal, suspension or revocation of a permit, the Council shall give the school reasonable opportunity to take corrective measures.
(3) Any refusal, suspension or revocation of a permit, or any other adverse action against a school, shall comply with all constitutional provisions, including due process, relating to the protection of property rights.
(h) All correspondence, business, occupational or trade schools which have been issued a permit shall make annual reports to the Council on forms furnished by the Council and shall provide such appropriate information as the Council reasonably may require. All correspondence, business, occupational or trade schools which have been issued a permit shall furnish to the Council a list of its official representatives. Each school shall be issued a certificate of identification by the Council for each of its official representatives.
(i) The issuance of a permit pursuant to this section does not constitute approval or accreditation of any course or school. No school, nor any representative of a school, may make any representation stating, asserting or implying that a permit issued pursuant to this section constitutes approval or accreditation by the State of West Virginia, Council or any other department or agency of the state. (j) The Council is hereby authorized to adopt rules and conduct on-site reviews to evaluate academic standards maintained by schools for the awarding of certificates, diplomas, associate degrees and specialized associate degrees.
(1) These standards may include curriculum, personnel, facilities, materials and equipment.
(2) For accredited correspondence, business, occupational and trade schools under permit on the first day of July, one thousand nine hundred seventy-nine, which have their physical facilities located in this state and which are accredited by the appropriate nationally recognized accrediting agency or association approved by the United States Department of Education, the accrediting agency's standards, procedures and criteria are accepted as meeting applicable laws, standards and rules of the Council.
(3) Institutions which are institutionally accredited by accrediting agencies recognized by the United States Department of Education to establish academic standards for post-secondary education may offer post-secondary educational programs leading to certificates, diplomas and associate degrees and may award certificates, diplomas and associate degrees to graduates who successfully complete required programs in accordance with the academic standards required by such accrediting agency.
(4) If a review undertaken by the Council indicates there may be deficiencies in the academic standards the institution maintains in its educational programs and if such deficiencies are of such a material nature that they jeopardize continued accreditation, the Council shall notify the institution. If the Council and the institution are unable to agree on the deficiencies or the steps necessary to correct the deficiencies, the Council shall consult with the institution's accrediting agency regarding an academically appropriate resolution which may include a joint on-site review by the Council and the accrediting agency.
(5) The Council also may review the academic standards of unaccredited institutions and may require such institutions to maintain recognized academic standards that are reasonably appropriate to the nature of the institution and the training offered.
(k) The Council may authorize an investigation of written student complaints alleging a violation of this section, Council rules or accreditation standards and may take appropriate action based on the findings of such an investigation.
(l) All evaluations or investigations of correspondence, business, occupational and trade schools and actions resulting from such evaluations or investigations shall be made in accordance with rules promulgated by the Council pursuant to article three-a, chapter twenty-nine-a of this code.
(m)In regard to private, proprietary educational institutions operating under this section of the code, accredited by a national or regional accrediting agency or association recognized by the United States Department of Education and which provide training at a campus located in this state:
(1)Any rule or standard which is authorized by this or any section of the code or other law and which is now in effect or promulgated hereafter by the Council (or other agency with jurisdiction) shall be clearly, specifically and expressly authorized by narrowly construed enabling law and shall be unenforceable and without legal effect unless authorized by an Act of the Legislature under the provisions of article three-a, chapter twenty-nine-a of this code.
(2)Notwithstanding any other provision of this section or other law to the contrary, the institution's accrediting agency standards, procedures and criteria shall be accepted as the standards and rules of the Council (or other agency with jurisdiction) and as meeting other law or legal requirements relating to the operation of proprietary institutions which such Council or other agency has the legal authority to enforce under any section of the code or other law. Nothing in this section denies students the use of remedies that would otherwise be available under state or federal consumer laws or federal law relating to federal college financial assistance programs.
(3)Accredited institutions operating hereunder are hereby recognized as postsecondary. Academic progress is measured and reported in credit hours and all reports/documents are filed on a credit-hour basis unless the institution notifies the Council that it utilizes clock hours as its unit of measurement.
(n)A representative of any school who solicits, sells or offers to sell courses of instruction to any resident of this state for consideration or remuneration unless the school first applies for a permit, or obtains a permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars per day per violation, or imprisoned in jail not more than sixty days, or both fined and imprisoned. No correspondence, business, occupational or trade school shall maintain an action in any court of this state to recover for services rendered pursuant to a contract solicited by the school if the school did not hold a valid permit at the time the contract was signed by any of the parties thereto. The Attorney General or any county prosecuting attorney, at the request of the Council or upon his or her own motion, may bring any appropriate action or proceeding in any court of competent jurisdiction for the enforcement of the provisions of this section relating to permits, bonds and sureties.
(o) In regard to institutions operating under this section, all substantive standards and procedural requirements established by the Council (or the West Virginia state program review entity or other agency with jurisdiction over institutions operating hereunder) shall meet all substantive and procedural standards of due process relating to the protection of an individual citizen's property rights as provided under the United States Constitution and shall follow the substantive standards and procedural requirements established by or under authority of this section.

ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF RESEARCH, DOCTORAL-GRANTING PUBLIC UNIVERSITIES.

§18B-3-1. Legislative findings, purpose; intent; definition.
(a) The Legislature finds that an effective and efficient system of doctoral-level education is vital to providing for the economic well-being of the citizens of West Virginia and for accomplishing established state goals and objectives. As the only research and doctoral-granting public universities in the state, Marshall University and West Virginia University are major assets to the citizens of West Virginia and must be an integral part of any plan to strengthen and expand the economy.
(b) The Legislature further finds that these two institutions must compete in both a national and global environment that is rapidly changing, while they continue to provide high quality education that is both affordable and accessible and remain accountable to the people of West Virginia for the most efficient and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and West Virginia University, under the direction of their respective governing boards, have sufficient staff and internal expertise to manage operational governance of their institutions in an efficient and accountable manner and can best fulfill their public missions when their governing boards are given flexibility and autonomy sufficient to meet state goals established in this article and in section one-a, article one of this chapter.
(d) Therefore, the purposes of this article include, but are not limited to, the following:
(1) Enhancing the competitive position of Marshall University and West Virginia University in the current environment for research and development;
(2) Providing the governing boards of these institutions with operational flexibility and autonomy, including tools to promote economic development in West Virginia;
(3) Encouraging the development of research expertise in areas directly beneficial to the state; and
(4) Focusing the attention and resources of the governing boards on state goals and priorities to enhance the competitive position of the state and the economic, social and cultural well-being of its citizens.
(e) The following terms wherever used or referred to in this chapter have the following meaning, unless a different meaning plainly appears from the context:
(1) 'State institution of higher education known as Marshall University' means the doctoral-granting research institution and does not include Marshall Community and Technical College; and
(2) 'State institution of higher education known as West Virginia University' means the doctoral-granting research institution and does not include any of the following:
(A) The regional campus known as West Virginia University Institute of Technology;
(B) The administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology; and
(C) The regional campus known as West Virginia University at Parkersburg.
(f) The governing boards of Marshall University and West Virginia University each have the power and the obligation to perform functions, tasks and duties as prescribed by law and to exercise their authority and carry out their responsibilities in a manner that is consistent with 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 Higher Education Policy Commission.
(g) While the governing boards of Marshall University and West Virginia University, respectively, may choose to delegate powers and duties to the presidents of the state institutions of higher education known as Marshall University and West Virginia University pursuant to subsection (s), section four, article two-a of this chapter, ultimately it is they who are accountable to the Legislature, the Governor and the citizens of West Virginia for meeting the established state goals set forth in this article and section one-a, article one of this chapter. Therefore, it is the intent of the Legislature that grants of operational flexibility and autonomy be made directly to the governing boards and are not grants of operational flexibility and autonomy to the presidents of these institutions.
§18B-3-2. Computer and computer equipment donation program.
Notwithstanding any other provision of this code to the contrary, the governing boards are authorized to create a program to donate surplus computers and computer-related equipment to education facilities, nonprofit organizations, juvenile detention centers, municipal and county public safety offices and other public, charitable or educational enterprises or organizations in this state.
(a) Only equipment which otherwise would be transferred to the Surplus Property Unit of the Purchasing Division may be donated;
(b) The governing boards shall keep records and accounts that clearly identify the equipment donated, the age of the equipment, the reasons for declaring it obsolete and the name of the education facility, nonprofit organization, juvenile detention center, municipal or county public safety office or other public, charitable or educational enterprise or organization to which the equipment was donated;
(c) Each governing board shall promulgate a rule in accordance with the provisions of section six, article one of this chapter to implement the donation program. The rules shall specify the procedures to be used for record keeping and shall provide for fair and impartial selection of equipment recipients.
§18B-3-3. Relationship of governing boards to the Commission and the Council.
(a) Relationship between the Commission and the governing boards:
(1) The Commission functions as a state-level coordinating board exercising its powers and duties in relation to the governing boards of Marshall University and West Virginia University only as specifically prescribed by law;
(2) The primary responsibility of the Commission is to work collaboratively with the governing boards to research, develop and propose policy that will achieve the established goals and objectives set forth in this chapter and chapter eighteen-c of this code; and
(3) The Commission has specific responsibility for, including, but not limited to, the following:
(A) Advocating for public higher education at the state level; and
(B) Collecting and analyzing data, researching, developing recommendations, and advising the Legislature and the Governor on broad policy initiatives, use of incentive funding, national and regional trends in higher education and issues of resource allocation involving multiple governing boards.
(b) Relationship between the Council and the governing boards:
(1) The Council maintains all powers and duties assigned to it by law or policy relating to the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology and the regional campus known as West Virginia University at Parkersburg;
(2) In addition to recognizing the authority assigned by law to the Council, it is the responsibility of the governing boards of Marshall University and West Virginia University to exercise their authority and carry out their responsibilities in a manner that is consistent with and complementary to the powers and duties assigned by law or policy to the community and technical colleges or to the Council;
(3) It is further the responsibility of the governing boards to abide by the rules duly promulgated by the Council relating to the community and technical colleges, to strengthen the community and technical college mission of these institutions, to aid them in meeting the essential conditions set forth in section three, article three-c of this chapter and to promote them to students, parents and the community as independently accredited institutions in their own right.
(c) The governing boards shall work collaboratively with the Commission, the Council and their staff to provide any and all information requested by the Commission or the Council in an appropriate format and in a timely manner.
§18B-3-4. Duty of governing boards to address state priorities.
(a) The expertise of faculty and graduate students at the state institutions of higher education known as Marshall University and West Virginia University is important to every citizen of this state. It is the responsibility of the governing boards to channel this expertise into research and analysis that will yield measurable benefits to the citizens of West Virginia. Therefore, in addition to the goals for post-secondary education established in section one-a, article one of this chapter, and goals established elsewhere in this code, it is the responsibility of the governing boards in collaboration to concentrate attention and resources on certain specific state priorities that have a direct, positive impact on the economic, social, and cultural well-being of the people of West Virginia. These priorities include, but are not limited to, the following:
(1) Developing Regional Brownfield Assistance Centers pursuant to section seven, article eleven of this chapter;
(2) Performing professional development-related research and coordinating the delivery of professional development to educators in the public schools of the state pursuant to the provisions of article two, chapter eighteen of this code; and
(3) Building subject matter expertise in public school finance, including mastery of the theories and concepts used in developing formulas to provide state-level financial support to public education.
(4) Researching and proposing cost-efficient methods to the Legislature for governing boards other than Marshall University and West Virginia University to dispose of obsolete computers and computer-related equipment.
(b) The Legislature may, but is not required to, make additional appropriations for the benefit of the state institutions of higher education known as Marshall University and West Virginia University to assist them in fulfilling the purposes set forth in subsection (a) of this section.
(c) In addition to the priorities established in subsection (a) of this section, each governing board separately shall focus resources and attention on improving their graduation rates for full-time undergraduate students as a specific institutional priority. The graduation rate is measured as a percentage of the undergraduate students who obtain a degree within six years of the date of enrollment as full-time freshmen. The governing boards shall develop and implement plans to reach the following goals:
(1) Marshall University shall attain a graduation rate for full-time undergraduate students of forty percent by the first day of July, two thousand eight, and shall attain a graduation rate for full-time undergraduate students of forty-five percent by the first day of July, two thousand ten.
(2) West Virginia University shall attain a graduation rate for full-time undergraduate students of sixty percent by the first day of July, two thousand eight, and shall attain a graduation rate for full-time undergraduate students of sixty-three percent by the first day of July, two thousand ten.
(3) The Commission shall monitor and report by the first day of December, two thousand five and annually thereafter to the Legislative Oversight Commission on Education Accountability on the progress of the governing boards toward meeting the goals set forth in subdivisions (1) and (2) of this subsection.

ARTICLE 4. GENERAL ADMINISTRATION.

§18B-4-5. Campus police officers; appointment; qualifications; authority; compensation and removal.

(a) The governing boards ~~are hereby authorized to~~ may appoint bona fide residents of this state to ~~act~~ serve as campus police officers upon any premises owned or leased by the State of West Virginia and under the jurisdiction of the governing boards, subject to the conditions and restrictions ~~hereinafter imposed~~ established in this section.
(1) A person who previously was qualified for employment as a law-enforcement officer for a state agency or political subdivision of the state is considered certified for appointment as a campus police officer at the state institutions of higher education under the jurisdiction of the governing boards of Marshall University and West Virginia University.
(2) Before performing duties as a campus police officer in any county, ~~each person so appointed shall first qualify therefor in the same manner as is~~ a person shall qualify as is required of county police officers by: ~~the~~
(A) Taking and filing of an oath of office as required by article one, chapter six of this code; and by
(B) Posting an official bond as required by article two, chapter six of this code.
(b) A campus police officer ~~shall have authority to carry a gun and~~ may carry a gun and any other dangerous weapon while on duty if the ~~campus police~~ officer fulfills the certification requirement for law-enforcement officers under section five, article twenty-nine, chapter thirty of this code or meets the requirements of subsection (a) of this section.
(c) It is the duty of ~~any person so appointed and qualified as~~ a campus police officer to preserve law and order: ~~only upon those~~
(1) On the premises under the jurisdiction of the governing ~~boards and~~ board; and
(2) On any ~~other~~ street, road or thoroughfare, except controlled access and open country highways, immediately adjacent to or passing through ~~such~~ premises, to which the ~~person may be~~ officer is assigned by the president ~~or other administrative head~~ of the state institution of higher education.
(A) For ~~this purpose~~ the purpose of this subdivision, the campus police officer is a law-enforcement officer pursuant to the provisions of section one, article twenty-nine, chapter thirty of this code. ~~and as to offenses committed within any area so assigned~~
(B) The officer has and may exercise all the powers and authority ~~and~~ of a law-enforcement officer as to offenses committed within the area assigned;
(C) The officer is subject to all the requirements and responsibilities of a law-enforcement officer; ~~Provided,~~ ~~That the assignment of campus police officers to the duties authorized by this section may not be deemed to~~
(D) Authority assigned pursuant to this subdivision does not supersede in any way the authority or duty of other ~~peace~~ law-enforcement officers to preserve law and order on such premises. ~~In addition, the~~
(E) Campus police officers ~~appointed under provisions of this section have authority to assist local peace officers~~ may assist a local law-enforcement agency on public highways. ~~in the control of~~ The assistance may be provided to control traffic in and around premises owned by the state when: ~~of West Virginia whenever such~~
(i) Traffic is generated as a result of athletic or other activities conducted or sponsored by a state institution of higher education; and ~~when such~~
(ii) The assistance has been requested by the ~~local peace officers~~ local law-enforcement agency.
(F) Campus police officers may assist a local law-enforcement agency in any location under the agency's jurisdiction at the request of the agency.
(d) The salary of ~~all such campus police officers shall be~~ a campus police officer is paid by the appropriate governing board. Each state institution may furnish each campus police officer with a firearm and an official uniform to be worn while on duty. ~~and~~ The institution shall furnish and require each officer while on duty to wear a shield with an appropriate inscription and to carry credentials certifying to the person's identity and authority as a campus police officer. ~~The~~
(e) A governing ~~boards~~ board may at ~~their~~ its pleasure revoke the authority of any campus police officer and such officers serve at the will and pleasure of the governing board. The president ~~or other administrative head~~ of the state institution ~~of higher education~~ shall report the termination of employment of a campus police officer by filing a notice to that effect in the office of the clerk of each county in which the campus police officer's oath of office was filed.
§18B-4-5a. Crimes committed on campus of institutions of higher education.
(a) The president or a designee of each state institution of higher education ~~in this state~~ shall on a regular and timely basis provide information to the public concerning alleged crimes occurring on the institution's property which have been reported to a campus police officer or any other officer of the institution.
(1) A crime ~~shall be deemed reported whenever~~ is considered reported when:
(A) A campus police officer or other officer of the institution determines that the report is credible; ~~when~~
(B) The report is submitted in writing and attested to by the victim on ~~such forms as shall be made available by~~ forms at the institution for such purpose; or ~~when~~
(C) The institution is notified by a law-enforcement agency of the reporting of a crime alleged to have occurred on the institution's property.
(2) Such reports ~~shall be~~ are referred within twenty-four hours to the appropriate law-enforcement agencies, as defined in section one, article twenty-nine, chapter thirty of this code, for further investigation.
(b) For the state institutions of higher education under the jurisdiction of the Governing Board of Marshall University and for the state institution of higher education known as West Virginia University only, the campus police shall investigate a crime within their respective jurisdictions for up to thirty days if the county prosecuting attorney does not reassign the case to another agency sooner.
(c) The information required to be made available to the public regarding the crime report shall be so available within ten days of the report. ~~and~~ The information shall include the nature of the criminal offense, the date of the offense, the general location of the offense (such as a designation of a specific building or area of the campus) and the time of day when the offense occurred. ~~Provided,~~ ~~That this requirement shall not be construed to~~
(1) This subsection does not require the release of any information which may disclose the identity of the victim. ~~Provided, however,~~ ~~That~~
(2) The institution shall withhold the information required to be made available to the public for a longer period upon certification of investigative need that the information be withheld from the public. ~~such certification to~~
(A) The certification shall be filed by an officer of one of the investigating law-enforcement agencies with the president of the institution or the designee to whom the duties required by this section have been delegated. ~~Provided further~~, ~~That~~
(B) The required information may ~~in no event~~ not be withheld after an arrest has been made in connection with the crime report.
(d) For purposes of this section, 'crime' is defined as those offenses required to be reported under the federal Crime Awareness and Campus Security Act of 1990, as amended. ~~and under~~ ~~section eight-a, article one of this chapter~~. ~~and~~ 'Crime' includes murder, rape, robbery, aggravated assault, burglary, motor vehicle theft and arrests for liquor, drug or weapons laws violations.
(e) The ~~governing boards~~ Council and Commission shall provide crime reporting forms to institutions under their respective jurisdictions and promulgate ~~such~~ a ~~legislative~~ rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code as ~~are~~ necessary ~~for the implementation of~~ to implement this section. ~~Such forms and rules shall be provided by the central office to other institutions of higher education in this state to assist them with the implementation of this section.~~
§18B-4-7. Accreditation of institutions of higher education; standards for degrees.
The Council shall make rules for the accreditation of community and technical colleges in this state and shall determine the minimum standards for conferring degrees. The Commission shall make rules for the accreditation of colleges and universities in this state, except the Governing Boards of Marshall University and West Virginia University shall make rules for the state institutions of higher education known as Marshall University and West Virginia University, and shall determine the minimum standards for conferring degrees. The Governing Boards of Marshall University and West Virginia University shall promulgate rules pursuant to the provisions of section six, article one of this chapter for the accreditation of the state institutions of higher education known as Marshall University and West Virginia University. An institution of higher education may not confer any degree on any basis of work or merit below the minimum standards prescribed by the Council, or Commission or the governing boards. Nothing in this section infringes upon the rights, including rights to award degrees, granted to any institution by charter given according to law, or by actions of the Council or Commission or their predecessors, prior to the effective date of this section. With the approval of the Commission, governing boards of institutions which currently offer substantial undergraduate course offerings and a master's degree in a discipline are authorized to grant baccalaureate degrees in that discipline.
Except as otherwise provided in this section, a charter or other instrument containing the right to confer degrees of higher education status may not be granted by the State of West Virginia to any institution, association or organization within the state, nor may any such degree be awarded, until the condition of conferring the degree has first been approved in writing by the Council, or Commission or appropriate governing board.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and facilities.
The governing boards, ~~and~~ the Commission and the Council are authorized and empowered to enter into contracts and expend funds for programs, services and facilities provided by public and private education institutions, associations, boards, agencies, consortia, corporations, partnerships, individuals and local, state and federal governmental bodies within and outside of West Virginia in order that maximum higher education opportunities of high quality may be provided to the citizens of the state in the most economical manner. In no event may a contract for such services and facilities be entered into unless the Commission, the Council or the governing boards have determined that such services and facilities are necessary and would be at a savings to the state.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The Council, Commission and each governing board, through the Vice Chancellor for Administration, shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the Council or Commission, as appropriate, and the state institutions of higher education under their jurisdiction, except the Governing Boards of Marshall University and West Virginia University, respectively, are subject to the provisions of subsection (d) of this section.
(b) The Commission and Council jointly shall adopt rules governing and controlling acquisitions and purchases in accordance with the provisions of this section. The rules shall assure that the Council, Commission and governing boards:
(1) Do not preclude any person from participating and making sales thereof to the governing board or to the Council or Commission except as otherwise provided in section five of this article. Provision of consultant services such as strategic planning services will not preclude or inhibit the governing boards, Council or Commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services;
(2) Establish and prescribe specifications, in all proper cases, for materials, supplies, equipment, services and printing to be purchased;
(3) Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) Negotiate for and make purchases and acquisitions in such quantities, at such times and under contract, in the open market or through other accepted methods of governmental purchasing as may be practicable in accordance with general law;
(5) Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase by means of sealed bids and competitive bidding or to effect advantageous purchases through other accepted governmental methods and practices;
(6) Post notices of all acquisitions and purchases for which competitive bids are being solicited in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such purchases and ensure that the notice is available to the public during business hours;
(7) Provide for purchasing in the open market;
(8) Provide for vendor notification of bid solicitation and emergency purchasing;
(9) Provide that competitive bids are not required for purchases of twenty-five thousand dollars or less; and
(10) Provide for not fewer than three bids where bidding is required. If fewer than three bids are submitted, an award may be made from among those received.
(c) The governing boards of Marshall University or West Virginia University, may seek the assistance of the Attorney General in drafting and reviewing contracts, orders, bonds or other such documents.
(d) Pursuant to this subsection, the Governing Boards of Marshall University and West Virginia University, respectively, may:
(1) Purchase or acquire all materials, supplies, equipment, services and printing required for the governing board without approval from the Commission or the Vice Chancellor for Administration and may issue checks in advance to cover postage as provided in subsection (f) of this section;
(2) Make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from these groups and if this would be the most financially advantageous manner of making the purchase;
(3) Select and acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the governing board;
(4) Use purchase cards under terms approved for the Commission, the Council and governing boards of state institutions of higher education and participate in any expanded program of use as provided in subsection (w) of this section; and
(e) The governing boards shall adopt sufficient accounting and auditing procedures and promulgate and adopt appropriate rules subject to the provisions of section six, article one of this chapter to govern and control acquisitions, purchases, leases and other instruments for grounds, buildings, office or other space or lease-purchase agreements.
~~(b)~~ (f) The Council, Commission or each governing board, through the Vice Chancellor for Administration, may issue a check in advance to a company supplying postage meters for postage used by that board, the Council or Commission and by the state institutions of higher education under their jurisdiction.
~~(c)~~ (g) When a purchase is to be made by bid, any or all bids may be rejected. However, all purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the governing boards, Council or Commission and delivery terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code apply to the competitive bids made pursuant to this section.
~~(d)~~ (h) The governing boards, Council and Commission shall maintain a purchase file, which shall be a public record and open for public inspection. After the award of the order or contract, the governing boards, Council and Commission shall indicate upon the successful bid that it was the successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor is not awarded the order or contract, the reason therefor. A record in the purchase file may not be destroyed without the written consent of the Legislative Auditor. Those files in which the original documentation has been held for at least one year and in which the original documents have been reproduced and archived on microfilm or other equivalent method of duplication may be destroyed without the written consent of the Legislative Auditor. All files, no matter the storage method, shall be open for inspection by the Legislative Auditor upon request.
~~(e)~~ (i) The Commission and Council also jointly shall adopt rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall require that a person may not be employed as a buyer unless that person, at the time of employment, either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
~~(f)~~ (j) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of fifty thousand dollars, payable to the State of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the Attorney General and conditioned upon the faithful performance of all duties in accordance with this section and sections five through eight, inclusive, of this article and the rules of the governing board and the Council and Commission. In lieu of separate bonds for such buyers, a blanket surety bond may be obtained. Any such bond shall be filed with the Secretary of State. The cost of any such bond shall be paid from funds appropriated to the applicable governing board or the Council or Commission.
~~(g)~~ (k) All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code relating to expenditure schedules and quarterly allotments of funds. Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the dollar amount for competitive sealed bids in this section are required to be encumbered and they may be entered into the state's centralized accounting system by the staff of the Commission, Council or governing boards to satisfy the requirements of article two, chapter five-a of this code and specifically sections twenty-six, twenty-seven and twenty-eight of said article to determine whether the amount of the purchase is within the Commission's, Council's or governing board's quarterly allotment, is in accordance with the approved expenditure schedule and otherwise conforms to the provisions of said article.
~~(h)~~ (l) The governing boards, Council and Commission may make requisitions upon the Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the total of the appropriations for the governing board, Council or Commission, and the Auditor shall draw a warrant upon the Treasurer for such accounts. All advance allowance accounts shall be accounted for by the applicable governing board or the Council or Commission once every thirty days or more often if required by the State Auditor.
~~(i)~~ (m) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the Council or Commission in the name of the state and shall be approved as to form by the Attorney General. A contract which requires approval as to form by the Attorney General is considered approved if the Attorney General has not responded within fifteen days of presentation of the contract. A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance which use terms and conditions or standardized forms previously approved by the Attorney General and do not make substantive changes in the terms and conditions of the contract do not require approval by the Attorney General. The Attorney General shall make a list of those changes which he or she ~~deems~~ considers to be substantive and the list, and any changes thereto, shall be published in the State Register. A contract that exceeds the dollar amount requiring competitive sealed bids in this section shall be filed with the State Auditor. If requested to do so, the governing boards, Council or Commission shall make all contracts available for inspection by the State Auditor. The governing board, Council or Commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance of a contract.
~~(j)~~ (n) If the governing board, Council or Commission purchases or contracts for materials, supplies, equipment, services and printing contrary to the provisions of sections four through seven of this article or the rules pursuant thereto, such purchase or contract is void and of no effect.
~~(k)~~ (o) Any governing board or the Council or Commission, as appropriate, may request the Director of purchases to make available, from time to time, the facilities and services of that department to the governing boards, Council or Commission in the purchase and acquisition of materials, supplies, equipment, services and printing and the director of purchases shall cooperate with that governing board, Council or Commission, as appropriate, in all such purchases and acquisitions upon such request.
~~(l)~~ (p) Each governing board or the Council or Commission, as appropriate, shall permit private institutions of higher education to join as purchasers on purchase contracts for materials, supplies, services and equipment entered into by that governing board or the Council or Commission. Any private school desiring to join as purchasers on such purchase contracts shall file with that governing board or the Council or Commission an affidavit signed by the president of the institution of higher education or a designee requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the Council or Commission, as appropriate. The private school shall agree that it is bound by such terms and conditions as that governing board or the Council or Commission may prescribe and that it will be responsible for payment directly to the vendor under each purchase contract.
~~(m)~~ (q) Notwithstanding any other provision of this code to the contrary, the governing boards, Council and Commission, as appropriate, may make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from cooperative buying groups, consortia, the federal government or from a federal contract and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract would be the most financially advantageous manner of making the purchase.
~~(n)~~ (r) An independent performance audit of all purchasing functions and duties which are performed at any institution of higher education, except Marshall University and West Virginia University, shall be performed each fiscal year. The Joint Committee on Government and Finance shall conduct the performance audit and the governing boards, Council and Commission, as appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing boards, Council or Commission.
(1) The Governing Boards of Marshall University and West Virginia University, respectively, shall provide for independent performance audits of all purchasing functions and duties on their campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period that has elapsed since the date of the preceding audit.
(3) Copies of all appropriate documents relating to any audit performed by the Governing Boards of Marshall University and West Virginia University shall be furnished to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability within thirty days of the date the audit report is completed.
~~(o)~~ (s) The governing boards shall require each institution under their respective jurisdictions to notify and inform every vendor doing business with that institution of the provisions of section fifty-four, article three, chapter five-a of this code, also known as the Prompt Pay Act of 1990.
~~(p)~~ (t) Consultant services, such as strategic planning services, may not preclude or inhibit the governing boards, Council or Commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services.
~~(q)~~ (u) After the Commission or Council, as appropriate, has granted approval for lease-purchase arrangements by the governing boards, a governing board may enter into lease-purchase arrangements for capital improvements, including equipment, except the Governing Boards of Marshall University and West Virginia University are authorized to enter into lease-purchase arrangements for the state institutions of higher education known as Marshall University and West Virginia University without seeking the approval of the Commission or the Council. Any lease-purchase arrangement so entered shall constitute a special obligation of the State of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any funds legally available to the institution and must be cancelable at the option of the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof, never constitutes an indebtedness of the State of West Virginia or any department, agency or political subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and may not be a charge against the general credit or taxing powers of the state or any political subdivision thereof. Such facts shall be plainly stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the Attorney General of West Virginia. Proposals for any arrangement must be requested in accordance with the requirements of this section and any rules or guidelines of the Commission and Council. In addition, any lease-purchase agreement which exceeds one hundred thousand dollars total shall be approved by the Attorney General of West Virginia. The interest component of any lease-purchase obligation is exempt from all taxation of the State of West Virginia, except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the requirements set forth in the Internal Revenue Code of 1986, as amended, and any regulations promulgated pursuant thereto are met, the interest component of any lease-purchase obligation also is exempt from the gross income of the recipient for purposes of federal income taxation and may be designated by the governing board or the president of the institution as a bank-qualified obligation.
~~(r)~~ (v) Notwithstanding any other provision of this code to the contrary, the Commission, Council and governing boards have the authority, in the name of the state, to lease, or offer to lease, as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:
(1) The Commission, Council and governing boards have sole authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the Commission, Council or governing boards for the institutions under their jurisdiction. For state institutions of higher education other than Marshall University and West Virginia University, the Chief Executive Officer of the Commission, Council or an institution shall certify the following:
(A) That the grounds, buildings, office space or other space requested is necessarily required for the proper function of the Commission, Council or institution;
(B) That the Commission, Council or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings currently owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission, Council or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist, and shall contract for or lease the premises at a price not to exceed the fair rental value.
(2) The Commission, Council and governing boards are authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year but not to exceed forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to the provisions of this subsection shall be presented by the policy Commission or Council, as appropriate, to the Joint Committee on Government and Finance for prior review. Any such lease shall contain, in substance, all the following provisions:
(A) That the Commission, Council or governing board, as lessee, has the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor at least thirty days prior to the last day of the succeeding month;
(B) That the lease is considered canceled without further obligation on the part of the lessee if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise acts to impair the lease or cause it to be canceled; and
(C) That the lease is considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the Commission, Council or governing board before the end of the then-current fiscal year.
(3) The Commission, Council or institution which is granted any grounds, buildings, office space or other space leased in accordance with this section may not order or make permanent changes of any type thereto, unless the Commission, Council or governing board, as appropriate, has first determined that the change is necessary for the proper, efficient and economically sound operation of the institution. For purposes of this section, a 'permanent change' means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible thing which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings, office or other space, once approved by the Commission, Council or governing board, may be signed by the Chief Executive Officer of the Commission, Council or institution. Any lease or instrument exceeding one hundred thousand dollars annually shall be approved as to form by the Attorney General. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules they consider necessary to carry out the provisions of this section. The Governing Boards of Marshall University and West Virginia University shall promulgate rules pursuant to section six, article one of this chapter to implement the provisions of this section.
~~(s)~~ (w) Purchasing card use may be expanded by the Council, Commission and state institutions of higher education pursuant to the provisions of this subsection.
(1) The Council and Commission jointly shall establish procedures to be implemented by the Council, Commission and any institution under their respective jurisdictions using purchasing cards. The procedures shall ensure that each maintains:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with the provisions of article three, chapter twelve of this code relating to the purchasing card program; and
(C) Sufficient accounting and auditing procedures for all purchasing card transactions.
(2) By the first day of November, two thousand four, the Council and Commission jointly shall present the procedures to the Legislative Oversight Commission on Education Accountability for its adoption.
(3) Notwithstanding any other provision of this code to the contrary, if the Legislative Oversight Commission on Education Accountability adopts the procedures, the Council, Commission, and any institution authorized pursuant to subdivision (4) of this subsection, may use purchasing cards for:
(A) Travel expenses directly related to the job duties of the traveling employee, including fuel and food; and
(B) Any routine, regularly scheduled payment, including, but not limited to, utility payments and real property rental fees. The Council, Commission and each institution, annually by the thirtieth day of June, shall provide to the State Purchasing Division a list of all goods or services for which payment was made pursuant to this provision during that fiscal year.
(4) The Commission and Council each shall evaluate the capacity of each institution under its jurisdiction for complying with the procedures established pursuant to subdivision (3) of this subsection. The Commission and Council each shall authorize expanded use of purchasing cards pursuant to said subdivision for any such institution it determines has the capacity to comply.

§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other unneeded materials.

(a) The Commission, the Council and the governing boards shall dispose of obsolete and unusable equipment, surplus supplies and other unneeded materials, either by transfer to other governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The Commission, the Council and each governing board shall adopt rules governing and controlling the disposition of all such equipment, supplies and materials.
(1) At least ten days prior to the disposition, the Commission, the Council or the governing boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which the equipment, supplies and materials are located, the availability or sales of such disposable equipment, supplies and materials.
(2) The Commission, the Council or governing boards, as applicable, may sell the disposable equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer, exchange or trade, then without advertising), in whole or in part, as sound business practices may warrant under existing circumstances and conditions.
(3) The requirements set forth in this subsection apply to Marshall University and West Virginia University only to the extent that those items of obsolete and unusable equipment, surplus supplies and other unneeded materials exceed five thousand dollars in recorded net book value. Marshall University and West Virginia University may dispose of obsolete and unusable computers and computer-related equipment pursuant to the provisions of section two, article three of this chapter.
(b) The Commission, Council or governing board, as appropriate, except for Marshall University and West Virginia University, shall report ~~semiannually~~ annually to the Legislative Auditor, all sales of commodities made during the preceding six months.
(1) The report shall include a description of the commodities sold, the name of the buyer to whom each commodity was sold, and the price paid by the buyer.
(2) Marshall University and West Virginia University shall report biennually to the Legislative Auditor the total sales of commodities made during the preceding biennium along with the total recorded net book value of such commodities.
(c) The proceeds of sales or transfers shall be deposited in the State Treasury to the credit on a pro rata basis of the fund or funds from which the purchase of the particular commodities or expendable commodities was made. The Commission, Council or governing board, as appropriate, may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The Governing Boards of Marshall University and West Virginia University each shall ensure the fiscal integrity of its operations using best business and management practices.
(1) The practices include at least the following:
(A) Complying with Generally Accepted Accounting Principles of the Governmental Accounting Standards Board (GAAP); and the Generally Accepted Government Auditing Standards of the Government Accountability Office (GAGAS);
(B) Operating without material weakness in internal controls as defined by GAAP, GAGAS and, where applicable, the Office of Management and Budget (OMB) Circular A-133;
(C) Maintaining annual audited financial statements with an unqualified opinion;
(D) Presenting annual audited financial statements to the respective governing board;
(E) Maintaining quarterly financial statements certified by the chief financial officer of the institution; and
(F) Implementing best practices from Sarbanes-Oxley, or adopting the applicable tenets of Sarbanes-Oxley as best practices.
(2) Marshall University, West Virginia University and the research corporation of each:
(A) Shall comply with the OMB Circular A-133 annual grant award audit requirements; and
(B) Is exempt from the provisions of section fourteen, article four, chapter twelve of this code.
(3) Within thirty days of the completion of the financial audit report, the Governing Boards of Marshall University and West Virginia University each shall furnish to the Commission, the Legislative Oversight Commission on Education Accountability, and the Joint Committee on Government and Finance copies of the annual audited financial statements.
~~(a)~~ (b) The Commission or Council, as appropriate, shall ensure the fiscal integrity of any electronic process conducted at its offices ~~or at any institution~~ and at all other institutions using best business and management practices.
~~(b)~~ (c) Marshall University, West Virginia University, the Council and the Commission each shall implement a process whereby, to the maximum extent practicable, employees of Marshall University, West Virginia University, the Council, Commission and ~~any state institution~~ all other state institutions of higher education receive their wages via electronic transfer or direct deposit.
~~(c)~~ (d) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this code, and except as otherwise provided in this subsection, the amount of any purchase made with a purchasing card used by the Council, the Commission or any other institution of higher education may not exceed five thousand dollars.
(1) Subject to approval of the ~~purchasing division of the department of administration~~ Auditor, any emergency payment and any routine, regularly scheduled payment, including, but not limited to, utility payments, contracts and real property rental fees, may exceed this ~~amount~~ limit by an amount to be determined by the Auditor.
(2) The Council, Commission or and any state institution of higher education may use a purchasing card for travel expenses directly related to the job duties of the traveling employee. Where approved by the auditor, such expenses may exceed five thousand dollars by an amount to be determined by the auditor. Traveling expenses may include registration fees and airline and other transportation reservations, if approved by the ~~administrative head~~ president of the institution. Traveling expenses may not include fuel or food purchases except, the state institutions of higher education known as Marshall University and West Virginia University may include in traveling expenses the purchase of fuel and food.
(3) The state institutions known as Marshall University and West Virginia University each shall maintain one purchasing card for use only in a situation declared an emergency by the institution's president. The Council, Commission and ~~each institution~~ all other institutions shall maintain one purchase card for use only in ~~and for situations~~ a situation declared an emergency by the president of the institution and approved by the appropriate chancellor. ~~Such~~ Emergencies may include, but are not limited to, partial or total destruction of a campus facility; loss of a critical component of utility infrastructure; heating, ventilation or air condition failure in an essential academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or national emergency situation that has a direct impact on the campus.
~~(d)~~ (e) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this code, or any other provision of this code or law to the contrary, ~~by the thirtieth day of June, two thousand four~~ the Auditor shall accept any receiving report submitted in a format utilizing electronic media. ~~and from the effective date of this section~~ The Auditor shall conduct any audit or investigation of the Council, Commission or any institution at its own expense and at no cost to the Council, Commission or institution.
~~(e) The Legislature finds that an emergency exists, and, therefore, by the first day of July, two thousand three~~
(f) The Council and ~~the Commission shall file an emergency~~ the Commission each shall maintain a ~~legislative~~ rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The rule shall provide for institutions individually or cooperatively to maximize their use of any of the following purchasing practices that are determined to provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
~~(f)~~ (g) Each institution shall establish a consortium with at least one other institution, in the most cost-efficient manner feasible, to consolidate the following operations and student services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for consolidation as determined by the Council or Commission.
~~(g)~~ (h) An institution may charge a fee to each institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the providing institution, as approved by the Council and Commission.
~~(h)~~ (i) Any community and technical college, college and university may provide the services authorized by this section for the benefit of any governmental body or public or private institution.
~~(i) Commencing with the two thousand four fall academic term~~
(j) Each institution shall ~~reduce~~ strive to minimize its number of low-enrollment sections of introductory courses. To the maximum extent practicable, institutions shall use distance learning to consolidate the course sections. Marshall University, West Virginia University, the Council and Commission shall report the progress of ~~the reduction to~~ reductions as requested by the Legislative Oversight Commission on Education Accountability. ~~by the first day of December, two thousand four~~
~~(j)~~ (k) An institution shall use its natural resources and alternative fuel resources to the maximum extent feasible. The institution:
(1) May supply the resources for its own use and for use by any other institution; ~~The institution~~
(2) May supply the resources to the general public at fair market value; ~~An institution~~
(3) Shall maximize all federal or grant funds available for research regarding alternative energy sources; and
(4) May develop research parks to further the purpose of this section and to expand the economic development opportunities in the state.
~~(k)~~ (l) Any cost-savings realized or fee procured or retained by an institution pursuant to implementation of the provisions of this section ~~shall be~~ is retained by the institution.
(l) ~~In assuring the fiscal integrity of processes implemented under this section, at a minimum, the Commission has~~ ~~the following responsibilities:~~
~~(1) To conduct a performance audit of the policies, procedures and results of the procurement of goods and service by the state institutions of higher education;~~
~~(2) To make progress reports on the implementation of this section~~ ~~to the Legislative Oversight Commission on Education Accountability throughout the two thousand three interim meetings period;~~
(3) To make a comprehensive report to the Legislative Oversight Commission on Education Accountability by the first day of December, two thousand three, on the result of the performance audit, together with any recommendations for additional actions that might be taken to improve the efficiency, effectiveness and economy of the administrative operations of the state institution of higher education, and the Commission.
(m) The provisions of subsection (b) of this section do not apply to the state institutions known as Marshall University and West Virginia University. Each is authorized but not required to comply with the provisions of subsections (f), (g) and (h) of this section.
(1) The Governing Boards of Marshall University and West Virginia University, respectively, each shall promulgate a rule on purchasing procedures pursuant to the provisions of section six, article one of this chapter. Neither institution is subject to the rules required by said subsection (f).
(2) If either governing board elects to implement the provisions of said subsection (g), the following conditions apply:
(A) The governing board makes the determination regarding any additional operation or service which is appropriate for consolidation without input from the Council or Commission;
(B) The governing board sets the fee charged to any institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the providing institution, but it is not subject to approval by the Council or Commission; and
(C) The governing board may not implement the provisions of this subdivision in a manner which supercedes the requirements established in section twelve, article three-c of this chapter.
~~(m) The Commission shall report annually~~ ~~to the Legislative Oversight Commission on Education Accountability regarding any savings achieved by implementing the provisions of this section.~~
§18B-5-10. Medical professional liability insurance and risk management functions.
(a) The Legislature finds that, while recent reforms have helped to address the rising costs and limited availability of medical malpractice and risk management insurance in West Virginia, the state's doctoral-granting research universities and their medical schools continue to face significant challenges related to the cost and operation of insurance and risk management programs.
(b) The Legislature further finds that the availability of cost-efficient insurance and risk management programs is essential to the long-term financial integrity and viability of these universities and their medical and other health professional schools.
(c) It is the responsibility of the Legislature to make the best use of available resources and to assure the availability of high quality medical education to meet the needs of the citizens of the state.
(d) Therefore, to aid the medical and other health professional schools in meeting these goals and objectives, the following program is authorized:
(1) Upon the agreement of the West Virginia State Board of Risk and Insurance Management, the health professionals schools under the jurisdiction of the Governing Boards of Marshall University and West Virginia University, respectively, and the West Virginia School of Osteopathic Medicine may participate, separately, in a self-insurance retention program in conjunction with the state insurance program administered by the West Virginia State Board of Risk and Insurance Management to provide medical professional liability coverage to its health care professionals and students.
(2) In administering the self-insurance retention program, each governing board has the authority to administer, manage and/or settle its own medical professional liability insurance claims.
(e) Notwithstanding the provisions of article twelve, chapter twenty-nine of this code, the West Virginia State Board of Risk and Insurance Management is hereby authorized and empowered to enter into separate agreements with the health professionals schools under the jurisdiction of the Governing Boards of Marshall University and West Virginia University, respectively, and with the West Virginia School of Osteopathic Medicine to develop and implement a self-insurance retention program for medical professional liability insurance.
(f) Prior to the implementation of any self-insurance retention program, the Governing Boards of Marshall University, West Virginia University and the West Virginia School of Osteopathic Medicine, respectively, shall submit the proposed program plan to the state Insurance Commissioner for review:
(1) The review shall include, but is not limited to, claims handling procedures, investment policies, and reserving practices.
(2) A governing board may not implement a plan until it has been reviewed by the state Insurance Commissioner.
(g) The Insurance Commissioner and Board of Risk and Insurance Management each may promulgate an emergency rule as necessary pursuant to the provisions of article three, chapter twenty-nine-a of this code, to specify further the requirements of self-insurance retention programs under this section.
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 school term for the different classes or categories of students enrolling at each 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) An institution 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 such accounts, an institution may expend funds from each such 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 student's attorney to perform legal services for students in civil matters at the institutions: Provided, That the legal services are limited only to those types of cases, programs or services approved by the administrative head of the institution where the legal services are to be performed.
(d) The Commission and Council jointly shall propose a rule for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the Commission and Council jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
(f) The schedule of all tuition and fees, and any changes therein, 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 such schedule and changes.
(g) The 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 the above provisions.
(h) 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 the awarding of 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 if the finances of a student are affected adversely.
(4) The Commission and Council jointly shall propose a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, defining conditions under which an institution may offer tuition and fee deferred payment plans through the institution or through third parties.
(5) An institution may charge interest or fees for any deferred or installment payment plans.
(i) 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.
(j) Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with the tuition rule proposed by the Commission and Council jointly pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs;
(3) Provide that a board of governors may 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, Council or both, as appropriate, shall certify to the Legislature by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years;
(4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
(k) A penalty may not be imposed by the Commission or Council upon any institution 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 institutions shall report annually to the Commission or Council on the numbers of nonresidents and such other enrollment information as the Commission or Council may request.
(l) Tuition and fee increases of the governing boards, except for the Governing Boards of the state institutions of higher education known as Marshall University and West Virginia University, are subject to rules adopted by the Commission and Council jointly pursuant to this section and in accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivision (4) of this subsection, a governing board of an institution under the jurisdiction of the Commission may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year. The nine and one-half percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction of the Council may propose tuition and fee increases of up to four and three quarters percent for undergraduate resident students for any fiscal year. The four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board.
(3) The Commission or Council, as appropriate, shall examine individually each request from a governing board for an increase. (4) The Governing Boards of Marshall University and West Virginia University, as these provisions relate to the state institutions of higher education known as Marshall University and West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed by this section without seeking approval from the Commission; and
(B) 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.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology and the regional campuses known as West Virginia University Institute of Technology and West Virginia University at Parkersburg.
(5) Any proposed tuition and fee increase for state institutions of higher education other than Marshall University and West Virginia University requires the approval of the Commission or Council, as appropriate. In determining whether to approve or ~~disapprove~~ deny the governing board's request, the Commission or Council shall determine the progress the institution has made toward meeting the conditions outlined in this subdivision and shall make this determination the predominate factor in its decision. The Commission or Council shall consider the degree to which each institution has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the Commission or Council;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
~~(D) Is implementing the efficiency measures required by section nine, article five of this chapter;~~
~~(E)~~ (D) Has demonstrated to the satisfaction of the Commission or Council that an increase will be used to maintain high-quality programs at the institution;
~~(F)~~ (E) Has demonstrated to the satisfaction of the Commission or Council that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and
~~(G)~~ (F) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
~~(2)~~ (6) This section does not require equal increases among institutions or require any level of increase at an institution.
~~(3)~~ (7) The Commission and Council shall report to the Legislative Oversight Commission on Education Accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision ~~(1)~~ (5) of this subsection.
(4) For fiscal year two thousand five only, a governing board of any institution under the jurisdiction of the Commission may increase tuition and fees for undergraduate resident students by one and one-half percent greater than the amount authorized by the Commission pursuant to the provisions of this section.
(m) The amount of fees assessed immediately prior to the effective date of this act under the provisions of this article relating to a higher education resource fee, a faculty improvement fee, a medical education fee, a health professions fee and a student activities fee are included in the appropriate tuition or fees classifications established under subsection (a) of this section.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers for students in undergraduate studies at institutions under its jurisdiction entitling recipients to waiver of tuition, capital and other fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the Governing Boards of Marshall University and West Virginia University, respectively, for the state institutions of higher education known as Marshall University and West Virginia University, are subject to the provisions of section six-a of this article;
(b) For the governing boards of A state ~~institution~~ institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University, the following conditions apply:
(1) An institution may not have in effect at any time a number of undergraduate fee waivers which exceeds five percent of the number of full-time equivalent undergraduate students registered during the fall semester of the immediately preceding academic year.
~~(b)~~ (2) Each undergraduate fee waiver entitles the recipient thereof to attend a designated state institution of higher education without payment of the tuition, capital and other fees as may be prescribed by the governing board and is for a period of time not to exceed eight semesters of undergraduate study.
~~(c)~~ (3) The governing board shall make rules pursuant to the provisions of section six, article one of this chapter, governing the award of undergraduate fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
~~(d)~~ (4) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings of the governing board.
~~(e)~~ (5) Students enrolled in an administratively-linked community and technical college shall be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing board. The number to be awarded to students of the community and technical college is based upon the full-time equivalent enrollment of that institution.
§18B-10-6. Fee waivers - Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate study by the provisions of section five of this article, each governing board periodically may establish fee waivers for study in graduate and professional schools under its jurisdiction, including medicine and dentistry, entitling the recipients to waiver of tuition, capital, and other fees, subject to the following conditions and limitations:
(a) ~~West Virginia University~~ may not have in effect at any time graduate and professional school fee waivers in a number which exceeds ten percent of the number of full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the above ten percent, all graduate assistants employed by West Virginia university shall be granted a fee waiver. Graduate and professional fee waivers established by the Governing Boards of Marshall University and West Virginia University, respectively, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than Marshall University and West Virginia University the following conditions apply:
(1) An institution may not have in effect at any time a number of graduate and professional school fee waivers which exceeds five percent of the number of full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the above five percent, all graduate assistants employed by these institutions shall be granted a fee waiver.
~~(c)~~ (2) Each graduate or professional school fee waiver entitles the recipient to waiver of the tuition, capital and other fees as may be prescribed by the governing boards and is for a period of time not to exceed the number of semesters normally required in the recipient's academic discipline.
~~(d)~~ (3) The governing boards shall make rules pursuant to the provisions of section six, article one of this chapter, governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
~~(e)~~ (4) The awarding of graduate and professional school fee waivers shall be entered in the minutes of the meeting of each governing board.
§18B-10-6a. Undergraduate, graduate and professional fee waivers - Marshall University and West Virginia University.
(a) Undergraduate fee waivers. --
(1) The Governing Boards of Marshall University and West Virginia University, respectively, may establish fee waivers for students in undergraduate studies at institutions under their jurisdiction which entitle recipients to waiver of tuition, capital and other fees, in whole or in part.
(2) Each undergraduate fee waiver is for a period of time not to exceed eight semesters of undergraduate study.
(3) Each governing board shall promulgate rules pursuant to the provisions of section six, article one of this chapter to govern the award of undergraduate fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings of the governing board.
(5) Students enrolled in an administratively linked community and technical college shall be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing board. The number to be awarded to students of the community and technical college is based upon the full-time equivalent enrollment of that institution.
(b) Graduate and professional school fee waivers. --
(1) In addition to the fee waivers authorized for undergraduate study by subsection (a) of this section, the Governing Boards of Marshall University and West Virginia University, respectively, may establish fee waivers for study in graduate and professional schools under its jurisdiction, including medicine and dentistry, which entitle the recipients to waiver of tuition, capital, and other fees, in whole or in part.
(2) Each graduate or professional school fee waiver entitles the recipient to waiver of the tuition, capital, and other fees, in whole or in part, as may be prescribed by the governing boards and is for a period of time not to exceed the number of semesters normally required in the recipient's academic discipline.
(3) The governing boards shall promulgate rules pursuant to the provisions of section six, article one of this chapter, governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of graduate and professional school fee waivers shall be entered in the minutes of the meeting of each governing board.
ARTICLE 11. MISCELLANEOUS INSTITUTES AND CENTERS.
§18B-11-7. Regional Brownfield Assistance Centers.
(a) For the purposes of this section, 'eligible entities' means government entities as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, at 42 U. S. C. §9604 or nonprofit organizations as defined by the Federal Financial Assistance Management Improvement Act at 31 U. S. C. §6101.
(b) Marshall University and West Virginia University each shall establish a nonprofit Regional Brownfield Assistance Center through the corporations set out in article twelve of this chapter for the purposes of expediting the redevelopment of Brownfield sites. The Centers shall provide assistance to eligible entities on state and federal Brownfield programs, secure state and federal funding for Brownfield redevelopment and acquire property eligible for state and federal Brownfield assistance.
(b) The Center established by Marshall University serves the following counties:
(1) McDowell, Mercer, Monroe, Raleigh, Summers and Wyoming;
(2) Cabell, Lincoln, Logan, Mason, Mingo and Wayne;
(3) Boone, Clay, Kanawha and Putnam; and
(4) Braxton, Fayette, Greenbrier, Nicholas, Pocahontas and Webster.
(c) The Center established by West Virginia University serves the following counties:
(1) Calhoun, Jackson, Pleasants, Ritchie, Roane, Tyler, Wirt and Wood;
(2) Brooke, Hancock, Marshall, Ohio and Wetzel;
(3) Barbour, Doddridge, Gilmer, Harrison, Lewis, Marion, Monongalia, Preston, Randolph, Taylor, Tucker and Upshur; and
(4) Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral, Morgan and Pendleton.
(d) To accomplish the purposes of this section, the Regional Brownfield Assistance Centers each have powers and duties including, but not limited to, the following:
(1) Acquiring property that is eligible for state and federal Brownfield assistance pursuant to the Small Business Liability Relief and Brownfields Revitalization Act (Public Law No. 107-118, 185 stat. 2356) and the West Virginia Voluntary Remediation and Redevelopment Act established in article twenty-two, chapter twenty-two of this code;
(2) Serving as the developer of the property for the purposes of managing and coordinating remediation and redevelopment activities;
(3) Preparing an inventory of Brownfield sites within their respective geographic regions by the first day of July, two thousand six, and updating the inventory of sites on an annual basis;
(4) Promoting and coordinating the development of Brownfield property by providing training and technical assistance on Brownfield development, grant writing, site assessments, remediation, community involvement and site preparation to eligible entities;
(5) Administering federal Brownfield Job Training Grants, the Brownfields Revolving Fund, and other federal Brownfield financial assistance programs to assist eligible entities in their Brownfield development efforts;
(6) Coordinating efforts to secure federal Brownfield funding by establishing priority rankings and by other necessary measures to maximize federal financial assistance and eliminate overlapping competition for federal dollars;
(7) Coordinating the development and publication by the first day of July, two thousand six, of a website to provide education and appropriate information on Brownfields development in West Virginia; and
(8) Coordinating with the West Virginia Development Office and the Department of Environmental Protection to establish and track key Brownfield economic statistics and conduct Brownfield conferences, as appropriate.

ARTICLE 14. MISCELLANEOUS.

§18B-14-11. Legislative findings; creation of Governor's Commission on Graduate Study in Science, Technology, Engineering, and Mathematics; membership; report.

(a) The Legislature finds that West Virginia ranks below most other states on key indicators of scientific and technical capacity, including the number of scientists and engineers who hold doctoral degrees, the number of science and engineering post-doctorates and the number of science and engineering graduate students.
(b) The Legislature further finds that this lack of scientific and technical capacity places the state at a competitive disadvantage to other states in terms of generating economic development and winning research grants, as evidenced by limited amounts of academic research and development funding, industrial research and development, small business innovation grant awards, technology-related start-up companies and the low number of high-tech jobs.
(c) To address these findings, there is created the Governor's Commission on Graduate Study in Science, Technology, Engineering and Mathematics, which may be cited as the STEM Commission, to address issues which include, but are not limited to, the following:
(1) Promoting coordination between higher education and K-12 education to create a seamless system of science and mathematics education and improve science and mathematics education at all levels;
(2) Increasing the number of graduate students and post-doctorates in science, technology, engineering and mathematics, including the number of women and minority graduate students in these fields;
(3) Increasing the number of West Virginia undergraduate and graduate students who receive nationally competitive scholarships and fellowships in science, technology, engineering and mathematics, such as Goldwater, Howard Hughes, National Science Foundation and Udall Fellowships;
(4) Improving the quality of graduate faculty and programs in science, technology, engineering and mathematics;
(5) Aligning graduate programs in science, technology, engineering and mathematics with the goals and objectives of the State EPSCoR Program, the State Science and Technology Advisory Council, the West Virginia Development Office and the Doctoral Scholars Program of the Southern Regional Education Board; and
(6) Increasing the quantity and enhancing the quality of academic research, as measured by federal and external expenditures for research and development.
(d) STEM Commission membership. --
(1) The Commission is comprised of fourteen members selected as follows:
(A) The Governor or designee, who serves as Chair;
(B) The Chancellor for the Higher Education Policy Commission; (C) The Director of Academic Affairs of the Higher Education Policy Commission;
(D) The Executive Director of the State EPSCoR Program;
(E) The Executive Director of the West Virginia Development Office or designee;
(F) The provosts of Marshall University and West Virginia University or their designees;
(G) Five members appointed by the Governor who represent academic, business and research interests; and
(H) The Chair of the House of Delegates Committee on Education and the Chair of the West Virginia Senate Committee on Education as ex officio, nonvoting members who serve in an advisory capacity.
(2) At least two of the Governor's appointees are state residents.
(3) The Governor shall make appointments to the Commission so that members may begin their deliberations no later than the first day of July, two thousand five.
(e) The Commission shall complete its work and report its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability, the Higher Education Policy Commission and the State EPSCoR Advisory Council by the first day of December, two thousand five."

The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 658), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Argento.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 603) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 603 --"A Bill to repeal §18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931, as amended; to repeal §18B-2-1, §18B-2-2 and §18B-2-3 of said code; to repeal §18B-3-5 and §18B-3-7 of said code; to repeal §18B-5-2d of said code; to amend and reenact §5-6-4a of said code; to amend said code by adding thereto a new section, designated §12-1-12b; to amend and reenact §12-3-5, §12-3-6, §12-3-7 and §12-3-8 of said code; to amend and reenact §18-2-23a of said code; to amend said code by adding thereto a new section, designated §18-2-24; to amend said code by adding thereto a new section, designated §18A-3-11 ; to amend and reenact §18A-3A-1 and §18A-3A-2b of said code; to amend said code by adding thereto a new section, designated §18A-3A-6; to amend and reenact §18B-1-3 and §18B-1-6 of said code; to amend and reenact §18B-1A-2 and §18B-1A-6 of said code; to amend and reenact §18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code; to amend said code by adding thereto a new section, designated §18B-1B-13; to amend and reenact §18B-2A-3 and §18B-2A-4 of said code; to amend said code by adding thereto a new section, designated §18B-2A-7; to amend said code by adding thereto a new section, designated §18B-2B-9; to amend and reenact §18B-3-1, §18B-3-2 and §18B-3-3 of said code; to amend said code by adding thereto a new section, designated §18B-3-4; to amend and reenact §18B-4-5, §18B-4-5a, §18B-4-6 and §18B-4-7 of said code; to amend and reenact §18B-5-3, §18B-5-4, §18B-5-7 and §18B-5-9 of said code; to amend said code by adding thereto a new section, designated §18B-5-10; to amend and reenact §18B-10-1, §18B-10-5 and §18B-10-6 of said code; to amend said code by adding thereto a new section, designated §18B-10-6a; to amend said code by adding thereto a new section, designated §18B-11-7; and to amend and reenact §18B-14-11 of said code, all relating to public and higher education generally; providing flexibility measures for certain state institutions of higher education, and providing for future application to additional state institutions of higher education; expanding the personnel application for certain professional development provisions; establishing a structure to enhance collaboration between certain state and regional entities in providing professional development; requiring certain state and regional entities to ensure coordination and collaboration in professional development efforts, and designating certain priorities for professional development; requiring study of professional development standards and best practices; limiting the circumstances for procuring out-of-state services regarding certain professional development issues; reconstituting the Center for Professional Development Board and modifying its membership and certain required employee provisions; prohibiting the required attendance of certain employees at certain professional development programs under certain circumstances; requiring a professional development study and report; creating the position of Coordinator of the Principals Academy; transferring powers, authorities, responsibilities and duties between certain entities; definitions; excepting certain institutions from certain required reports to Joint Committee on Government and Finance regarding real property contracts and agreements; requiring transfer of real property under certain circumstances from Higher Education Policy Commission to certain institutions; clarifying real property retention rights of Policy Commission for certain jointly used real property; modifying format and documentation requirements for acceptance of certain documents by State Auditor; expanding permissible uses for purchase card; transferring to State Auditor certain duties regarding purchase cards; transferring to State Auditor authority to approve certain purchase card payments designated to exceed the purchase amount limits and to set the amount by which such payments may exceed the limits; modifying for certain institutions certain document submission requirements for travel expense reimbursement; clarifying requirements for promulgation of higher education rules; requiring certain institutions to promulgate certain rules; establishing certain requirements for rule adoption, validation, enforcement and reporting; limiting certain authorities when rules not adopted; clarifying legislative intent relating to mission of certain institutions; limiting Policy Commission jurisdiction, power, responsibility and authority regarding certain institutions; modifying Policy Commission duties; expanding Policy Commission discretion in setting Chancellor's salary; specifying limitation of certain entities on exercising certain authorities and fulfilling certain responsibilities; modifying responsibility for assigning institutions' geographic areas of responsibility; modifying authorization for certain state institutions of higher education to offer graduate programs under certain circumstances, and expanding the authorized institutions to offer such programs; transferring to certain institutions authority for capital project need identification, prioritization and selection; modifying criteria considered for capital project selection; preserving the jurisdiction and authority of certain higher education entities to manage technology; clarifying authority of Policy Commission to assess certain fees; specifying when discharging certain duties requires consultation among various higher education entities; transferring to certain institutions authority to approve tuition and fee increases, review and approve academic programs, develop capital budgets and set standards for conferring degrees; exempting certain institutions from Attorney General and Policy Commission approval requirements for executing certain documents, instruments and purchases; requiring study and report of recommendations relating to higher education personnel issues; establishing scope of personnel study and charges for implementation; requiring employee participation; modifying requirements and authorities regarding delegation of powers by certain higher education entities; expanding and modifying the powers and duties of research, doctoral-granting public universities and their governing boards; providing legislative findings, purpose and intent for such expansion and modification; for certain institutions expanding authority and establishing parameters and procedures for donating certain surplus computers and related items; limiting application to certain institutions of certain surplus item disposal requirements; defining the relationship between the Policy Commission and certain governing boards and between the West Virginia Council for Community and Technical College Education and certain governing boards; establishing and defining the duties of certain governing boards to address state priorities and the goals for post-secondary education established by the Legislature; defining state priorities; requiring annual report of progress; expanding jurisdiction of certain parking and vehicle operating violations for certain institutions; specifying certain acceptable qualifications for employment as campus police officer at certain institutions; expanding authority of certain campus police officers; expanding responsibility of certain institutions to investigate certain crimes; expanding authority of certain institutions to expend the excess of certain parking fees collected; increasing fines and expanding penalty options for certain parking and vehicle operating violations; exempting certain institutions from requirements to participate in certain cooperative purchasing and operating arrangements; specifying responsibility of certain institutions for ensuring fiscal integrity of operations; establishing requirements for implementing best business and management practices for certain institutions, including certain required reports; authorizing state medical and health professionals schools to participate in self- insurance retention programs pursuant to certain conditions; authorizing state Board of Risk and Insurance Management to enter into agreements with state medical and health professionals schools to develop and implement self-insurance retention programs; requiring plan review by state Insurance Commissioner prior to implementing self-insurance retention programs; authorizing Insurance Commissioner and state Board of Risk and Insurance Management to promulgate emergency rules; expanding discretion of certain institutions to offer undergraduate and graduate-level fee waivers, eliminating certain waiver award restrictions and requiring rule governing waivers; requiring certain institutions to establish a nonprofit Regional Brownfield Assistance Center; defining Assistance Center service regions; establishing Assistance Center powers and duties; providing temporary authorization to engage in alternative investment options for certain moneys of certain state institutions of higher education, and including a set expiration date for such authorization; creating Governor's Commission on Graduate Study in Science, Technology, Engineering and Mathematics; establishing membership; assigning charge to Commission; providing legislative findings and requiring report to Legislative Oversight Commission on Education Accountability; deleting, repealing and updating certain obsolete provisions; and making technical corrections."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 659), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 603) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
S. B. 248, Relating to requirement that technology expenditures be made in accordance with Education Technology Strategic Plan.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment was reported by the Clerk:
On page six, section three, by striking out "(a)".
On page six, section three, after the word "code," by inserting the word "the".
On page six, section three, by striking out all of subdivision (5) and inserting in lieu thereof a new subdivision (5), to read as follows:
"(5) Develop a unified educational technology strategic plan as required in section five of this article;".
On page seven, section three, subdivision (7), after the word "inform" by inserting the word "to".
On page thirteen, section five, by striking out all of subsection (a) and inserting in lieu thereof a new subsection (a), to read as follows:
"(a) The Governor's Advisory Council for Educational Technology shall develop a unified educational technology strategic plan, and submit the plan to the Legislative Oversight Commission on Education Accountability for approval on or before the first day of October, two thousand five. On or before the first day of October in each year thereafter, the Council shall update the plan and submit the plan to the Commission for approval. The time line for updating and revising the rule and plan also shall be in accordance with the federal E-rate discount program. The plan is not effective until approved by the Commission."
On page fourteen, section six, by striking out all of subdivision (2) and inserting in lieu thereof a new subsection (2), to read as follows:
"(2) If the plan is not approved by the Legislative Oversight Commission on Education Accountability, the plan has no effect;".
And,
By amending the title of the bill to read as follows:
S. B. 248-"A Bill to amend and reenact §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6, and §18-2J-7 of the Code of West Virginia, 1931, as amended, relating to public and higher education technology strategic plan; making findings and stating intent and purpose; providing for advisory council for educational technology; providing powers and duties; providing for goals and strategies for technology strategic plan; requiring approval of the plan by the legislative oversight commission on education accountability; requiring allocation and expenditure of technology appropriations in accordance with the plan with certain exceptions; report to legislative oversight commission."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 660), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Fragale and Talbott.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 248) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 661), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 248) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
S. B. 458, Permitting transfer of State Police for certain inappropriate conduct; relocation expense.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage of
S. B. 752 - "A Bill making a supplementary appropriation of federal funds out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand five, to the Department of Environmental Protection - Division of Environmental Protection, fund 8708, fiscal year 2005, organization 0313, by supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand five."
At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 752) to a committee was dispensed with, and was taken up for immediate consideration, read a first time and ordered to second reading.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 80 - "Requesting the Joint Committee on Government and Finance study the West Virginia State Board of Landscape Architects.
Whereas, The article concerning the West Virginia State Board of Landscape Architects has not been updated for years; and
Whereas, The practice of landscape architecture has changed over the years and a need exists to reevaluate the current structure of licensure by the Board; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the West Virginia State Board of Landscape Architects; and, be it
Further Resolved, That the Joint Committee on Government and Finance update the applicable provisions of the code concerning the West Virginia State Board of Landscape Architects; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 91 - "Requesting the Joint Committee on Government and Finance direct the Legislative Oversight Commission on Health and Human Resources Accountability study the issue of the availability and distribution of long-term care beds in the State of West Virginia."
Whereas, In 1992, the Legislature issued a moratorium prohibiting additional intermediate care or skilled nursing beds within the state; and
Whereas, Since that moratorium, the nursing home industry has changed with the addition of less intensive and less expensive care options; and
Whereas, Changing demographics and patterns of nursing facilities in the state have caused a crisis in the ability of this state to offer continuity and access to long-term care for older West Virginians; and
Whereas, With the addition of such options as adult day care, home care and assisted living, the aging population of West Virginia is afforded an array of possibilities for care beyond the traditional nursing home; and
Whereas, Medical technologies and an emphasis on preventative health care have resulted in increased longevity of the population of older citizens; and
Whereas, The number of elderly Americans requiring some level of long-term care is expected to double over the next 25 years, requiring a retooling of the manner in which individual states address the needs of their aging populations; and
Whereas, A study of the availability and distribution of long-term care beds to tend to the long-term care needs of the senior citizen population in West Virginia is necessary; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the Legislative Oversight Commission on Health and Human Resources Accountability to study the issue of the availability and distribution of long-term care beds in the State of West Virginia; and, be it
Further Resolved, That the Legislative Oversight Commission on Health and Human Resources Accountability report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 79, Requesting that the Joint Committee on Government and Finance study the increasing drug problem in West Virginia.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2011, Relieving health care providers of liability where an injury has resulted from a prescribed drug or medical device.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-23. Prescription drugs and medical devices; limiting health care providers' liability exposure.

(a) No health care provider, as defined in section two, article seven-b of this chapter, is liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed or used by the health care provider in accordance with instructions approved by the U. S. Food and Drug Administration regarding the dosage and administration of the drug, the indications for which the drug should be taken or device should be used, and the contraindications against taking the drug or using the device: Provided, That the provisions of this section shall not apply if: (1)the health care provider had actual knowledge that the drug or device was inherently unsafe for the purpose for which it was prescribed or used or (2)a manufacturer of such drug or device publicly announces changes in the dosage or administration of such drug or changes in contraindications against taking the drug or using the device and the health care provider fails to follow such publicly announced changes and such failure proximately caused or contributed to the plaintiff's injuries or damages.
(b) The provisions of this section are not intended to create a new cause of action."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2011 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto anew section, designated §55-7-23, relating to removing health care providers' exposure to liability where, in certain cases involving prescription drugs and medical devices, a person has been injured; and exceptions."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 662), and there were--yeas 86, nays 13, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Barker, Butcher, Caputo, DeLong, Eldridge, Hrutkay, Longstreth, Manchin, Miley, Sobonya, Spencer, Stevens and Walters.
Absent And Not Voting: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2011) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2186, Restricting involuntary commitment for addicted persons to those who, as a result of such addiction, are likely to cause serious harm to themselves or others.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §27-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted, to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-2. Institution of proceedings for involuntary custody for examination; custody; probable cause hearing; examination of individual.

(a) Any adult person may make an application for involuntary hospitalization for examination of an individual when the person making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in section eleven, article one of this chapter and exhibiting behaviors set forth in subdivision (1) or (2), subsection (a) of said section; or
(2) The individual is mentally ill and, because of his or her mental illness, the individual is likely to cause serious harm to himself or herself or to others if allowed to remain at liberty while awaiting an examination and certification by a physician or psychologist.
Notwithstanding any provision of this subsection to the contrary, if the individual to be examined under the provisions of this section is incarcerated in a jail, prison or other correctional facility, only the chief administrative officer of the facility holding the individual may file the application, and the application must include the additional statement that the correctional facility itself cannot reasonably provide treatment and other services for the individual's mental illness or addiction.
(b) The person making the application shall make the application under oath.
(c) Application for involuntary custody for examination may be made to the circuit court or a mental hygiene commissioner of the county in which the individual resides or of the county in which he or she may be found. When no circuit court judge or mental hygiene commissioner is available for immediate presentation of the application, the application may be made to a magistrate designated by the chief judge of the judicial circuit to accept applications and hold probable cause hearings. A designated magistrate before whom an application or matter is pending may, upon the availability of a mental hygiene commissioner or circuit court judge for immediate presentation of an application or pending matter, transfer the pending matter or application to the mental hygiene commissioner or circuit court judge for further proceedings unless otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information and state facts in the application as may be required by the form provided for this purpose by the supreme court of appeals.
(e) The circuit court, mental hygiene commissioner or designated magistrate may enter an order for the individual named in the application to be detained and taken into custody for the purpose of holding a probable cause hearing as provided for in subsection (g) of this section for the purpose of an examination of the individual by a physician, psychologist, a licensed independent clinical social worker practicing in compliance with article thirty, chapter thirty of this code or advanced nurse practitioner with psychiatric certification practicing in compliance with article seven of said chapter: Provided, That a licensed independent clinical social worker or an advanced nurse practitioner with psychiatric certification may only perform the examination if he or she has previously been authorized by an order of the circuit court to do so, said order having found that the licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has particularized expertise in the areas of mental health and mental hygiene sufficient to make such determinations as are required by the provisions of this section. The examination is to be provided or arranged by a community mental health center designated by the secretary of the department of health and human resources to serve the county in which the action takes place. The order is to specify that the hearing be held forthwith and is to provide for the appointment of counsel for the individual: Provided, however, That the order may allow the hearing to be held up to twenty- four hours after the person to be examined is taken into custody rather than forthwith if the circuit court of the county in which the person is found has previously entered a standing order which establishes within that jurisdiction a program for placement of persons awaiting a hearing which assures the safety and humane treatment of persons: Provided further, That the time requirements set forth in this subsection shall only apply to persons who are not in need of medical care for a physical condition or disease for which the need for treatment precludes the ability to comply with said time requirements. During periods of holding and detention authorized by this subsection, upon consent of the individual or in the event of a medical or psychiatric emergency, the individual may receive treatment. The medical provider shall exercise due diligence in determining the individual's existing medical needs and provide such treatment as the individual requires, including previously prescribed medications. As used in this section, 'psychiatric emergency' means an incident during which an individual loses control and behaves in a manner that poses substantial likelihood of physical harm to himself, herself or others. Where a physician, psychologist, licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has within the preceding seventy-two hours performed the examination required by the provisions of this subdivision, the community mental health center may waive the duty to perform or arrange another examination upon approving the previously performed examination. Notwithstanding the provisions of this subsection, subsection (r), section four of this article applies regarding payment by the county commission for examinations at hearings. If the examination reveals that the individual is not mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself, herself or others, the individual shall be immediately released without the need for a probable cause hearing and absent a finding of professional negligence such examiner shall not be civilly liable for the rendering of such opinion absent a finding of professional negligence. The examiner shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before whom the matter is pending the results of the examination on the form provided for this purpose by the supreme court of appeals for entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to be held before a magistrate designated by the chief judge of the judicial circuit, the mental hygiene commissioner or circuit judge of the county of which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and has the right to present evidence, confront all witnesses and other evidence against him or her and to examine testimony offered, including testimony by representatives of the community mental health center serving the area. Expert testimony at the hearing may be taken telephonically or via videoconferencing. The individual has the right to remain silent and to be proceeded against in accordance with the rules of evidence of the supreme court of appeals, except as provided for in section twelve, article one of this chapter. At the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge shall find and enter an order stating whether or not there is probable cause to believe that the individual, as a result of mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(g) The magistrate, mental hygiene commissioner or circuit court judge at a probable cause hearing or at a final commitment hearing held pursuant to the provisions of section four of this article finds that the individual, as a result of mental illness, is likely to cause serious harm to himself, herself or others or is addicted and because of mental illness or addiction requires treatment, the magistrate, mental hygiene commissioner or circuit court judge may consider evidence on the question of whether the individual's circumstances make him or her amenable to outpatient treatment in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. The agreement is to be in writing and approved by the individual, his or her counsel and the magistrate, mental hygiene commissioner or circuit judge. If the magistrate, mental hygiene commissioner or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential or nonhospital setting, the individual may be released to outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual released to outpatient treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary treatment agreement constitutes evidence that outpatient treatment is insufficient and, after a hearing before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or not the individual failed or refused to comply with the terms and conditions of the voluntary treatment agreement and whether the individual as a result of mental illness remains likely to cause serious harm to himself, herself or others or remains addicted, the entry of an order requiring admission under involuntary hospitalization pursuant to the provisions of section three of this article may be entered. In the event a person released pursuant to a voluntary treatment agreement is unable to pay for the outpatient treatment and has no applicable insurance coverage, including, but not limited to, private insurance or medicaid, the secretary of health and human resources may transfer funds for the purpose of reimbursing community providers for services provided on an outpatient basis for individuals for whom payment for treatment is the responsibility of the department: Provided, That the department may not authorize payment of outpatient services for an individual subject to a voluntary treatment agreement in an amount in excess of the cost of involuntary hospitalization of the individual. The secretary shall establish and maintain fee schedules for outpatient treatment provided in lieu of involuntary hospitalization. Nothing in the provisions of this article regarding release pursuant to a voluntary treatment agreement or convalescent status may be construed as creating a right to receive outpatient mental health services or treatment or as obligating any person or agency to provide outpatient services or treatment. Time limitations set forth in this article relating to periods of involuntary commitment to a mental health facility for hospitalization do not apply to release pursuant to the terms of a voluntary treatment agreement: Provided, however, That release pursuant to a voluntary treatment agreement may not be for a period of more than six months if the individual has not been found to be involuntarily committed during the previous two years and for a period of no more than two years if the individual has been involuntarily committed during the preceding two years. If in any proceeding held pursuant to this article the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the circuit judge, magistrate or mental hygiene commissioner may not enter an order directing treatment pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to a voluntary treatment agreement is ordered, the individual subject to the order may, upon request during the period the order is in effect, have a hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order canceled or modified. Nothing in this section may affect the appellate and habeas corpus rights of any individual subject to any commitment order.
(h) If the certifying physician or psychologist determines that a person requires involuntary hospitalization for an addiction to a substance which, due to the degree of addiction, creates a reasonable likelihood that withdrawal or detoxification from the substance of addiction will cause significant medical complications, the person certifying the individual shall recommend that the individual be closely monitored for possible medical complications. If the magistrate, mental hygiene commissioner or circuit court judge presiding orders involuntary hospitalization, he or she shall include a recommendation that the individual be closely monitored in the order of commitment.
(i) The supreme court of appeals and the secretary of the department of health and human resources shall collect data and report to the Legislature at its regular annual sessions in two thousand three and two thousand four of the effects of the changes made in the mental hygiene judicial process along with any recommendations which they may deem proper for further revision or implementation in order to improve the administration and functioning of the mental hygiene system utilized in this state, to serve the ends of due process and justice in accordance with the rights and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system and to promote the development of good mental health. The supreme court of appeals and the secretary of the department of health and human resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources. Additionally, the secretary of the department of health and human resources shall also immediately seek reciprocal agreements with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in need of mental hygiene services."
And,
By amending the title of the bill to read as follows:
H. B. 2186 - "A Bill to amend and reenact §27-5-2 of the Code of West Virginia, 1931, as amended, relating to institution of proceedings for involuntary custody for examination."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2528, Relating to alternative programs for the education of teachers.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:

"ARTICLE 3. TRAINING, CERTIFICATION, LiCENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-1a. Alternative programs for the education of teachers.
(a) By the ~~first day of July, one thousand nine hundred ninety-one~~ fifteenth day of August, two thousand five, the State Board, ~~of Education,~~ after consultation with the Secretary of Education and the Arts, shall ~~adopt~~ promulgate rules in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the approval and operation of teacher education programs which are an alternative to the regular college or university programs for the education of teachers. To participate in an approved alternative teacher education program, the candidate must hold an alternative program teacher certificate issued by the Superintendent and endorsed for the instructional field in which the candidate seeks certification. An alternative program teacher certificate is a ~~temporary~~ certificate issued for one year to a candidate who does not meet the standard educational requirements for certification. The certificate may be renewed no more than two times. No individual may hold an alternative program teacher certificate for a period exceeding three years. The alternative program teacher certificate shall be considered a professional teaching certificate for the purpose of the issuance of a continuing contract. To be eligible for ~~such a~~ an alternative program teacher certificate, an applicant shall:
(1) Possess at least a bachelor's degree from an a regionally accredited institution of higher education in a discipline taught in the public schools except that the rules established by the board may exempt candidates in selected vocational and technical areas who have at least ten years experience in the subject field from this requirement;
(2) Pass an appropriate state board approved basic skills and subject matter test ~~or complete three years of successful experience within the last seven years~~ in the area for which licensure is being sought;
(3) Be a citizen of the United States, be of good moral character and physically, mentally and emotionally qualified to perform the duties of a teacher, and have attained the age of eighteen years on or before the first day of October of the year in which the alternative program teacher certificate is issued; ~~and~~
(4) Have been offered employment ~~in a school included in an alternative teacher education plan approved by the board to offer an alternative teacher education program.~~ by a county board in an area of critical need and shortage; and
(5) Qualify following a criminal history check pursuant to section ten of this article.
Persons who ~~pass the appropriate test as set forth in subdivision (2) above~~ satisfy the requirements set forth in subdivisions (1) through (5) of this subsection shall be granted a formal document which will enable them to ~~seek employment as an alternative program teacher in a public school approved to offer an alternative teacher education program~~ work in a public school in West Virginia.
(b) The rules adopted by the board shall include provisions for the approval of alternative teacher education programs which may be offered by schools, school districts, consortia of schools or regional educational service agency and for the setting of tuition charges to offset the program costs. An approved alternative teacher education program shall be in effect for a school, school district, consortium of schools or regional educational service agency before an alternative program teacher may be employed in that school, school district, consortium of schools or regional educational service agency. ~~Approximately two hundred hours of formal instruction shall be provided in all of the three following phases combined.~~ An approved alternative program shall provide essential knowledge and skills to alternative program teachers through the following phases of training:
(1) A full-time seminar/practicum of no less than twenty and no more than thirty days duration which is accomplished before the alternative program teacher has full responsibility for a classroom. The seminar/practicum shall provide formal instruction in the essential areas for professional study which shall emphasize the topics of student assessment, development and learning, curriculum, classroom management, and the use of educational computers and other technology and shall introduce basic teaching skills through supervised teaching experiences with students. The seminar and practicum components shall be integrated and shall include an orientation to the policies, organization and curriculum of the employing district;
(2) A period of intensive on-the-job supervision beginning the first day on which the alternative program teacher assumes full responsibility for a classroom and continuing for a period of at least ten weeks. During this time, the alternative program teacher shall be visited and critiqued no less than one time per week by members of a professional support team and shall be observed and formally evaluated at the end of five weeks and at the end of ten weeks by the appropriately certified members of the team. During the same period, formal instruction shall be continued in the essential areas for professional study which shall emphasize the topics of teaching skills, student assessment, development and learning, curriculum, classroom management, and the use of educational computers and other technology. At the end of the ten-week period, the alternative program teacher shall receive a formal written progress report from the chairperson of the support team; and
(3) An additional period of continued supervision and evaluation of no less than twenty weeks duration. During this period, the alternative program teacher shall be visited and critiqued at least twice per month and shall be observed formally and evaluated at least twice. No more than two months shall pass without a formal evaluation. Formal instruction shall continue in the essential areas for professional study. Opportunities shall be provided for the alternative program teacher to observe the teaching of experienced colleagues.
(1) Instruction. -- The alternative preparation program shall provide a minimum of eighteen semester hours of instruction in the areas of student assessment; development and learning; curriculum; classroom management; the use of educational computers and other technology; and special education and diversity. All programs shall contain a minimum of three semester hours of instruction in special education and diversity out of the minimum eighteen required semester hours.
(2) Phase I. -- Phase I shall consist of a period of intensive on-the-job supervision by an assigned mentor and the school administrator for a period of not less than two weeks and no more than four weeks. The assigned mentor shall meet the requirements for mentor set forth in section two-b of this article and be paid the stipend pursuant to that section. During this time, the teacher shall be observed daily. This phase shall include an orientation to the policies, organization and curriculum of the employing district. The alternative program teacher shall begin to receive formal instruction in those areas listed in subdivision (1) of this subsection.
(3) Phase II. -- Phase II shall consist of a period of intensive on-the-job supervision beginning the first day following the completion of Phase I and continuing for a period of at least ten weeks. During Phase II, the alternative program teacher shall be visited and critiqued no less than one time per week by members of a professional support team, defined in subsection (c) of this section, and shall be observed and formally evaluated at the end of five weeks and at the end of ten weeks by the appropriately certified members of the team. At the end of the ten-week period, the alternative program teacher shall receive a formal written progress report from the chairperson of the support team. The alternative program teacher shall continue to receive formal instruction in those areas listed above under subdivision (1) of this subsection.
(4) Phase III. -- Phase III shall consist of an additional period of continued supervision and evaluation of no less than twenty weeks duration. The professional support team will determine the requirements of this phase with at least one formal evaluation being conducted at the completion of the phase. The alternative program teacher shall continue to receive formal instruction in those areas listed above under subdivision (1) of this subsection, and receive opportunities to observe the teaching of experienced colleagues.
(c) Training and supervision of alternative program teachers shall be provided by a professional support team comprised of a school principal, an experienced classroom teacher who satisfies the requirements for mentor for the Beginning Educator Internship as specified in section two-b of this article, a college or university education faculty member and a curriculum supervisor. Districts or schools which do not employ curriculum supervisors or have been unable to establish a relationship with a college or university shall provide for comparable expertise on the team. The school principal shall serve as chairperson of the team. In addition to other duties assigned to it under this section and section one-b of this article, the professional support team shall submit a written evaluation of the alternative program teacher to the county superintendent. The written evaluation shall be in a form specified by the county superintendent and submitted on a date specified by the county superintendent that is prior to the first Monday of May. The evaluation shall report the progress of the alternative program teacher toward meeting the academic and performance requirements of the program.
(d) The training ~~efforts of the districts shall be coordinated by the center for professional development and the center shall provide an orientation and training program~~ for professional support team members shall be coordinated and provided by the Center for Professional Development in coordination with the school district, consortium of schools, regional educational service agency, and institution of higher education, or any combination of these agencies as set forth in the plan approved by the state board pursuant to subsection (e) of this section.
(e) A school, school district, consortium of schools or regional educational service agency seeking to employ an alternative program teacher must submit a plan to the State Board ~~of Education~~ and receive approval. ~~in accordance with the same procedures used for approval of collegiate preparation programs.~~ Each plan shall describe how the proposed training program will accomplish the key elements of an alternative program for the education of teachers as set forth in this section. Each school, school district, consortium of schools or regional educational service agency shall show evidence in its plan of having sought joint sponsorship of their training program with institutions of higher education.
(f) The state board shall promulgate a rule in accordance with article three-b, chapter twenty- nine-a of this code for the approval and operation of alternative education programs to prepare highly qualified special education teachers that are separate from the programs established under the other provisions of this section and are applicable only to teachers who have at least a Bachelor's degree in a program for the preparation of teachers from a regionally accredited institution of higher education. These programs are subject to the other provisions of this section only to the extent specifically provided for in the rule. These programs may be an alternative to the regular college and university programs for the education of special education teachers and also may address the content area preparation of certified special education teachers. The programs shall incorporate professional development to the maximum extent possible to help teachers who are currently certified in special education to obtain the required content area preparation. Participation in an alternative education program pursuant to this subsection shall not affect any rights , privileges or benefits to which the participant would otherwise be entitled as a regular employee, nor does it alter any rights , privileges or benefits of participants on continuing contract status. The state board shall report to the legislative oversight commission on education accountability on the programs authorized under this subsection during the July, two thousand five, interim meetings or as soon thereafter as practical prior to implementation of the programs.
(g) The State Board shall promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code for the approval and operation of alternative education programs to prepare highly qualified special education teachers that are separate from the programs established under the other provisions of this section and are applicable only to persons who hold a bachelor's degree from a regionally accredited institution of higher education. These programs are subject to the other provisions of this section only to the extent specifically provided for in this rule. These programs may be an alternative to the regular college and university programs for the education of special education teachers and also may address the content area preparation of such persons. The State Board shall report to the Legislative Oversight Commission on Education Accountability on the programs authorized under this subsection during the July, two thousand five, interim meetings or as soon thereafter as practical prior to implementation of the programs.
(h) For the purposes of this section, "area of critical need and shortage" means an opening in an established, existing or newly created position which has been posted in accordance with the provisions of section seven-a, article four of this chapter, and for which no fully qualified applicant has been employed.
(i) The recommendation to rehire an alternative education program teacher pursuant to section eight-a, article two of this chapter is subject to the position being posted and no fully qualified applicant being employed: Provided, that this provision does not apply to teachers who hold a valid West Virginia professional teaching certificate and who are employed under a program operated pursuant to subsection (f).
(j) When making decisions affecting the hiring of an alternative program teacher under the provisions of this section, a county board shall give preference to applicants who hold a valid West Virginia professional teaching certificate."
And,
By amending the title of the bill to read as follows:
H. B. 2528- "A Bill to amend and reenact §18A-3-1a of the Code of West Virginia, 1931, as amended, relating to alternative programs for the education of teachers; providing for alternative program certificate, eligibility, issuance, scope and renewal limitation; changing activities, components and phases of training for alternative programs; providing for program coordination, training and approval; authorizing separate programs to prepare highly qualified special education teachers; requiring position to be posted in certain instances; and establishing hiring preference."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 663), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2528) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of
H. B. 2669, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2853, Relating to the West Virginia Courtesy Patrol Program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section two, line twenty-one, after the word 'program' by changing the period to a colon and inserting the following proviso: Provided, That matching federal funds are available to fund the courtesy patrol program and that said matching federal funds shall not exceed five million dollars annually.
On page five, section two, line twenty-two, after the word 'Highways' by inserting a comma and the words 'using available federal funds,'.
On page five, section two, line twenty-eight, after the word 'provide' by inserting a comma and the words 'with federal funds,'.
And,
On page, five, section two, line thirty-two, after the word 'patrol' by inserting the words "utilizing moneys made available by the federal government".
On motion of Delegates Staton, Michael and Boggs, the House of Delegates concurred in the Senate amendment with amendment on page five, section two, line twenty-one, following the word "program", by changing the colon to a period, striking out the following: "Provided, That matching federal funds are available to fund the courtesy patrol program and that said matching federal funds shall not exceed five million dollars annually" and inserting in lieu thereof the following: "To the extend that they are available, the Division of Highways shall provide funding for the items specified in this section with federal funds".
On page five, section two, line twenty-two, following the word "Highways", by striking out the comma, the words "using available federal funds" and the comma.
On page five, section two, line twenty-eight, following the word "provide" by striking out the comma, the words "with federal funds" and the comma.
And,
On page five, section two, line thirty-two, following the word "patrol" by striking out the words "utilizing moneys made available by the federal government".
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 664), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2853) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2939, Relating to the Federal Cash Management Act.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2980, Providing for the certification of special inspectors and to permit the acceptance of inspections provided by special inspectors in lieu of inspections by the Division of Labor.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3306, Allowing fees charged for requests for information from the central abuse registry to be used for criminal record keeping.
Special Calendar
Third Reading
S. B. 666, Relating to exemptions for certain insurance companies from business franchise tax and corporation net income tax; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 665), and there were--yeas 85, nays 14, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Amores, Barker, Beane, Butcher, Caputo, Doyle, Eldridge, Hrutkay, Longstreth, Mahan, Manchin, Martin, Spencer and Staton.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 666) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
On motion of Delegate Staton, the House of Delegates reconsidered the vote whereby it had passed in earlier proceedings Com. Sub. for H. B. 2011, Relieving health care providers of liability where an injury has resulted from a prescribed drug or medical device.
The question again being on the passage of the bill, the yeas and nays were taken (Roll No. 666), and there were--yeas 84, nays 9, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Barker, Butcher, Eldridge, Hatfield, Hrutkay, Hunt, Miley, Spencer and Walters.
Absent And Not Voting: Ashley, Caputo, Ennis, Fragale, Longstreth, Manchin and Stephens.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2011) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 5:58 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:00 p.m., and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished Business.
Special Calendar
Unfinished Business
H. C. R. 66, Requesting the Joint Committee on Government and Finance study the increasing role sanitarians play in protecting public health; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. C. R. 74, Requesting Joint Committee on Government and Finance study fiscal affairs of state water and sewer utilities; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Special Calendar
Third Reading
At the request of Delegate Staton, and by unanimous consent, further consideration of the following bills were then postponed:
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
S. B. 289, Allowing fill material in waters of state; definition,
S. B. 406, Establishing Uniform Environmental Covenants Act,
And,
S. B. 159, Creating Consolidated Local Government Act.
Second Reading
S. B. 752, Making supplementary appropriation of federal funds to Department of Environmental Protection, Division of Environmental Protection; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 667), and there were--yeas 91, nays 4, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Eldridge, Hrutkay, Lane and Louisos.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 668), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 752) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 669), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 752) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
On motion of Delegate Staton, the Senate was requested to return Com. Sub. for S. B. 30, Relating to insurance law reforms and modifications generally .
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Subsequently,

A message from the Senate, by

The Clerk of the Senate, was received, announcing that the Senate had acceded to the request of the House for the return of

Com. Sub. for S. B. 30, Relating to insurance law reforms and modifications generally.

On motion of Delegate Staton, the bill was taken up for immediate consideration.
On the further motion of the same Gentleman, the House then reconsidered the amendment to the title of the bill and the passage of the bill, respectively.
Unanimous consent having been obtained, an amendment was offered to the bill on third reading, amending the enacting section to read as follows:
" That §33-2-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-2-21; that §33-6-8 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-6-15a; that §33-16-2 of said code be amended and reenacted; that §33-16B-1 and §33-16B-3 of said code be amended and reenacted; that §33-17-8 and §33-17-9 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A-4c; and that §33-20-4 of said code be amended and reenacted."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 670), and there were--yeas 75, nays 24, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Barker, Brown, Butcher, Caputo, Eldridge, Fragale, Hatfield, Hrutkay, Hunt, Iaquinta, Leggett, Longstreth, Manchin, Marshall, Martin, Miley, Moore, Poling, Schoen, Stevens,Deb, Thompson, Rick, Walters, Webster and Wells.
Absent And Not Voting: Beach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 30) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 30 - "A Bill to amend and reenact §33-2-20 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-2- 21; to amend and reenact §33-6-8 of said code; to amend said code by adding thereto a new section, designated §33-6-15a; to amend and reenact §33-16-2 of said code; to amend and reenact §33-16B-1 and §33-16B-3 of said code; to amend and reenact §33-17-8 and §33-17-9 of said code; to amend said code by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A- 4c; and to amend and reenact §33-20-4 of said code, all relating to insurance law reforms and modifications generally; allowing the Commissioner to permit automobile insurers to withdraw from doing business in this state; requiring insurer to submit a plan; permitting promulgation of rules; redesignating a section of the insurance code enacted as part of the bill assigning workers' compensation duties to the Insurance Commissioner; clarifying that certain rules remain in effect; exempting commercial insurance lines from the requirement of prior approval of rates and forms; establishing requirements for prior approval; providing for suspension of review period when additional information is requested; providing definitions; clarifying that certain health insurance forms marketed to associations must be filed with the Commissioner; providing that commercial and certain health insurance forms marketed to associations are effective upon first use after filing; providing certain requirements for association policies; providing for a notation of savings on policies; clarifying that prior rate approval applies to health insurance certificates and endorsements; providing for filing of fire and marine insurance rider or endorsement review; adding a ground for nonrenewal of property insurance policies; providing an alternative method for nonrenewal of property insurance; providing a manner of electing an alternative method; requiring report to the Legislature; and making certain technical changes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading
S. B. 558, Relating to management and investment of public funds; on third reading, coming up in regular order, was, on motion of Delegate Staton, postponed until later in today's session.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2334, Relating to limiting child out-of-state placements..
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. GENERAL PROVISIONS.
§49-7-34. Commission to study residential placement of children.
(a) The Legislature finds that the state's current system of serving children and families in need of or at risk of needing social, emotional and behavioral health services is fragmented. The existing categorical structure of government programs and their funding streams discourages collaboration, resulting in duplication of efforts and a waste of limited resources. Children are usually involved in multiple child-serving systems, including child welfare, juvenile justice and special education. More than ten percent of children presently in care are presently in out-of-state placements. Earlier efforts at reform have focused on quick fixes for individual components of the system at the expense of the whole. It is the purpose of this section therefore to establish a mechanism to achieve systemic reform by which all of the state's child-serving agencies involved in the residential placement of at- risk youth jointly and continually study and improve upon this system and make recommendations to their respective agencies and to the Legislature regarding funding and statutory, regulatory and policy changes. It is further the Legislature's intent to build upon these recommendations to establish an integrated system of care for at-risk youth and families that makes prudent and cost-effective use of limited state resources by drawing upon the experience of successful models and best practices in this and other jurisdictions, which focuses on delivering services in the least restrictive setting appropriate to the needs of the child, and which produces better outcomes for children, families and the state.
(b) There is hereby created within the Department of Health and Human Resources a Commission to Study the Residential Placement of Children. The Commission shall consist of the Secretary of the Department of Heath and Human Resources, the Commissioner of the Bureau for Children and Families, the Commissioner for the Bureau for Behavioral Health and Health Facilities, the Commissioner for the Bureau for Medical Services, the State Superintendent of Schools, a representative of local educational agencies, the Director of the Office of Institutional Educational Programs, the Director of the Office of Special Education Programs and Assurance, the Director of the Division of Juvenile Services and the Executive Director of the Prosecuting Attorney's Institute. At the discretion of the West Virginia Supreme Court of Appeals, circuit and family court judges and other court personnel, including the administrator of the Supreme Court of Appeals and the director of the Juvenile Probation Services Division, may serve on the Commission. These statutory members may further designate additional persons in their respective offices who may attend the meetings of the Commission if they are the administrative head of the office or division whose functions necessitate their inclusion in this process. In its deliberations, the Commission shall also consult and solicit input from families and service providers.
(c) The Secretary of the Department of Health and Human Resources shall serve as chair of the Commission, which shall meet on a monthly basis at the call of the chairman.
(d) At a minimum, the Commission shall study:
(1) The current practices of placing children out-of-home and into in residential placements, with special emphasis on out-of-state placements;
(2) The adequacy, capacity, availability and utilization of existing in-state facilities to serve the needs of children requiring residential placements;
(3) Strategies and methods to reduce the number of children who must be placed in out-of- state facilities and to return children from existing out-of-state placements, initially targeting older youth who have been adjudicated delinquent;
(4) Staffing, facilitation and oversight of multidisciplinary treatment planning teams;
(5) The availability of and investment in community-based, less restrictive and less costly alternatives to residential placements;
(6) Ways in which up-to-date information about in-state placement availability may be made readily accessible to state agency and court personnel, including an interactive secure web site;
(7) Strategies and methods to promote and sustain cooperation and collaboration between the courts, state and local agencies, families and service providers, including the use of inter-agency memoranda of understanding, pooled funding arrangements and sharing of information and staff resources;
(8) The advisability of including 'no-refusal' clauses in contracts with in-state providers for placement of children whose treatment needs match the level of licensure held by the provider;
(9) Identification of in-state service gaps and the feasibility of developing services to fill those gaps, including funding;
(10) Identification of fiscal, statutory and regulatory barriers to developing needed services in-state in a timely and responsive way;
(11) Ways to promote and protect the rights and participation of parents, foster parents and children involved in out-of-home care; and
(12) Ways to certify out-of-state providers to ensure that children who must be placed out-of- state receive high quality services consistent with this state's standards of licensure and rules of operation.
(e) Beginning July 1, 2005, the Chair, or his or her designee, shall report on the work of the Commission to the legislative Juvenile Task Force during the Legislature's monthly interim meetings.
(f) On or before December 1, 2005, the Commission shall report to the Joint Committee on Government and Finance its conclusions and recommendations, including an implementation plan whereby:
(1) Out-of-state placements shall be reduced by at least ten per cent per year and by at least fifty percent within three years;
(2) Child-serving agencies shall develop joint operating and funding proposals to serve the needs of children and families that cross their jurisdictional boundaries in a more seamless way;
(3) Steps shall be taken to obtain all necessary federal plan waivers or amendments in order for agencies to work collaboratively while maximizing the availability of federal funds;
(4) Agencies shall enter into memoranda of understanding to assume joint responsibilities;
(5) System of care components and cooperative relationships shall be incrementally established at the local, state and regional levels, with links to existing resources, such as family resource networks and regional summits, wherever possible; and
(6) Recommendations for changes in fiscal, statutory and regulatory provisions are included for legislative action."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 671), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Schoen.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2334) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2444, Mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That section §17C-5-2 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §17C-5A-3a of said code be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.

(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance of the proceedings, from time to time, to allow the person to participate in the vehicle alcohol test and lock program as provided for in section three-a, article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term is to include actual confinement of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section or under a prior enactment of this section for an offense which occurred within the ten-year period immediately preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time period for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to drive as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term 'controlled substance' has the meaning ascribed to it in chapter sixty-a of this code.
(p) The sentences provided herein upon conviction for a violation of this article are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less for a first offense under this section. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense. An order for supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section. Provided, however, That where home incarceration is ordered for a second offense under this section, electronic monitoring shall be required for no fewer than five days and the offender may not leave home for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code, or as an alternative to any sentence authorized by this section, the offender may be required to perform thirty days of supervised community service in lieu of any other sentence authorized by the provisions of this section: Provided further, That where home incarceration is ordered for a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days and the offender may not leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

§17C-5A-3a. Establishment of and participation in the motor vehicle alcohol test and lock program.

(a) The division of motor vehicles shall control and regulate a motor vehicle alcohol test and lock program for persons whose licenses have been revoked pursuant to this article or the provisions of article five of this chapter, or have been convicted under section two, article five of this chapter. ~~Such~~ The program shall include the establishment of a users fee for persons participating in the program which shall be paid in advance and deposited into the driver's rehabilitation fund. Except where specified otherwise, the use of the term 'program' in this section refers to the motor vehicle alcohol test and lock program. The commissioner of the division of motor vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section. ~~Such~~ The rules shall also prescribe those requirements which, in addition to the requirements specified by this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system. For purposes of this section, a 'motor vehicle alcohol test and lock system' means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system's assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, ~~such~~ the person is determined to be under the influence of alcohol.
(b) (1) Any person whose license ~~has been~~ is revoked for the first time pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when ~~such~~ the person's minimum revocation period as specified by subsection (c) of this section has expired and ~~such~~ the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program. ~~Provided,~~ That no person whose license has been revoked pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsections a) or (b), section two, article five of this chapter, or pursuant to the provisions of subsections (f) or (g), section two of this article, shall be eligible for participation in the program: ~~Provided, however,~~ That any person whose license is revoked pursuant to this article or pursuant to article five of this chapter for an act which occurred either while participating in or after successfully completing the program shall not again be eligible to participate in such program
(2) Any person whose license has been suspended pursuant to the provisions of subsection (l), section two of this article for driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than ~~ten~~ eight hundredths of one percent, by weight, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect: Provided, That in the case of a person under the age of eighteen, the person ~~shall be~~ is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person's eighteenth birthday, whichever is later. Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to ~~thereafter~~ comply with the following conditions:
(A) If not already enrolled, the person will enroll in and complete the educational program provided for in subsection (c), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(B) The person will pay all costs of the educational program, any administrative costs and all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, no person eligible to participate in the program under this subsection ~~shall~~ may operate a motor vehicle unless approved to do so by the commissioner.
(c) For purposes of this section, 'minimum revocation period' means the portion which has actually expired of the period of revocation imposed by the commissioner pursuant to this article or the provisions of article five of this chapter upon a person eligible for participation in the program A person who participates in the program under subdivision (1), subsection (b) of this section is subject to a minimum revocation period and minimum period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (d) or (f), section two, article five of this chapter or pursuant to subsection (i), section two of this article, the minimum period of revocation ~~before such person is eligible~~ for participation in the test and lock program is thirty days and the minimum period for the use of the ignition interlock device is five months; ~~or that the period described in subdivision (1), subsection (e) of this section, whichever period is greater~~
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter, refusal to submit to a designated secondary chemical test, the minimum period of revocation ~~before such person is eligible~~ for participation in the test and lock program is thirty days and the minimum period for the use of the ignition interlock device is nine months; ~~or the period set forth in subdivision (1), subsection (e) of this section, whichever period is greater~~
(3) For a person whose license has been revoked for a ~~second~~ first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a), section two, article five of this chapter or pursuant to subsection (f), section two of this article, the minimum period of revocation before ~~such~~ the person is eligible for participation in the test and lock program is ~~nine~~ twelve months and the minimum period for the use of the ignition interlock device is ~~eighteen months~~ two years; ~~or that period set forth in subdivision (2), subsection (e) of this section, whichever period is greater~~
(4) For a person whose license has been revoked for ~~any other period of time~~ a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, ~~or pursuant to section seven, article five of this chapter~~ the minimum period of revocation is ~~eighteen~~ six months and the minimum period for the use of the ignition interlock device is two years; ~~or that period set forth in subdivision (3), subsection (e) of this section, whichever period is greater~~
(5) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is one year;
(6) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (i), section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article or section seven, article five of this chapter and the person was previously either convicted or license was revoked under any provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in the program under this subsection is one year and the minimum period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to participate because of a violation of subsection (l), section two of this article or subsection (h), section two, article five of this chapter is two months and the minimum period of participation is one year. The division will add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past ten years. Any person required to participate under this subsection must have an ignition interlock device installed on every vehicle he or she owns or operates.
~~(5)~~ (e) An applicant for the test and lock program ~~must~~ may not have been convicted of any violation of section three, article four, chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the ~~two-year~~ six-month period preceding the date of application for admission to the test and lock program;
~~(6) The commissioner is hereby authorized to allow individuals in the test and lock program an additional device or devices if~~ such is necessary for employment purposes.
~~(d)~~ (f) Upon permitting an eligible person to participate in the program, the commissioner shall issue to ~~such~~ the person, and ~~such~~ the person ~~shall be~~ is required to exhibit on demand, a driver's license which shall reflect that ~~such~~ the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(g) The commissioner may extend the minimum period of revocation and the minimum period of participation in the program for a person who violates the terms and conditions of participation in the program as found in this section, or legislative rule, or any agreement or contract between the participant and the division or program service provider.
(e) Any person who has completed the safety and treatment program and who has not violated the terms required by the commissioner of such person's participation in the motor vehicle alcohol test and lock program shall be entitled to the restoration of such person's driver's license upon the expiration of:
~~(1) One hundred eighty days of the full revocation period imposed by the commissioner for a person described in subdivision (1) or (2), subsection (c) of this section;~~
(2) The full revocation period imposed by the commissioner for a person described in subdivision (3), subsection (c) of this section;
(3) One year from the date a person described in subdivision (4), subsection (c) of this section is permitted to operate a motor vehicle by the commissioner.
~~(f)~~ (h) A person whose license has been suspended pursuant to the provisions of subsection (l), section two of this article who has completed the educational program, and who has not violated the terms required by the commissioner of ~~such~~ the person's participation in the ~~motor vehicle alcohol test and lock~~ program, ~~shall be~~ is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person ~~shall be~~ is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that ~~such~~ the records have been expunged and by securely sealing and filing the records. Expungement ~~shall have~~ has the legal effect as if the suspension never occurred. The records ~~shall~~ may not be disclosed or made available for inspection and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of ~~such~~ the information does not divulge the identity of the person.
~~(g)~~ (i) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during such person's participation in the motor vehicle alcohol test and lock program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars. Any person who ~~assists another person required by the terms of such other person's participation in the motor vehicle alcohol test and lock program to use a motor vehicle alcohol test and lock system in any effort~~ attempts to bypass the alcohol test and lock system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars. Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site, if such is a condition of his or her employment. For the purpose of this section, job site does not include any street or highway open to the use of the public for purposes of vehicular traffic."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2444 - "A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend reenact §17C-5A-3a, all relating to compliance with federal funding requirements regarding driving under the influence offenders."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with an amendment, as follows:
On page ten, section two, line two, after the period, by striking out the remainder of the section and inserting in lieu thereof the following:
"Provided, however, That for any period of home incarceration ordered for a person convicted of second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code: Provided further, That for any period of home incarceration ordered for a person convicted of a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2444 - "A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend reenact §17C-5A-3a, all relating to compliance with federal funding requirements regarding driving under the influence offenders; limiting work release to convictions for a first offense; and the creation of mandatory periods of electronically monitored home confinement."
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 672), and there were--yeas 98, nays 2, absent and not voting none, with the nays being as follows:
Nays: Armstead and Lane.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2444) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2782, Increasing the number of members a municipality may appoint to a board of park and recreation commission from not less than three to not more than seven.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, after section three, by adding a new section, designated section seven, to read as follows:
"§8-21-7. Office; powers.
The governing body shall furnish said board an office in the city building where it may hold its meetings and keep its records. Provided, That English shall be the official language of the State of West Virginia and that the governing body, as defined in §8-1-2, may use the English language in the preparation of all public documents and records. Any board operating under the provisions of this article shall have complete and exclusive control and management of all of the properties which shall be operated in connection with the public park and recreation system for the city, and shall have power to employ such persons as, in its opinion, may be necessary for the establishment, construction, improvement, extension, development, maintenance or operation of the property under its control, at such wages or salaries as it shall deem proper, and shall have full control of all employees."
On page two, by amending the enacting section to read as follows:
"That §8-21-3 and §8-21-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
H. B. 2782 - "A Bill to amend and reenact §8-21-3 and §8-21-7 of the Code of West Virginia, 1931, as amended, relating to municipal board of park and recreation commissioners generally; increasing the number of members the governing body may appoint to a board of park and recreation commissioners to not more than seven; and providing for the appointment of not more than three members from the governing body if the board of park and recreation commissioners consists of six or seven members; clarifying the preparation of all public documents and records."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 673), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2782) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2852, Implementing the recommendations of the West Virginia Pharmaceutical Cost Council.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, by striking out everything after the enacting section and inserting in lieu thereof the following:
"CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3C. WEST VIRGINIA PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT.

§5A-3C-1. Title.
The provisions of this article shall be known as and referred to as the 'West Virginia Pharmaceutical Availability and Affordability Act.'
§5A-3C-2. Legislative findings and intent.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs is one of the most critical issues facing the current health care system in the State of West Virginia;
(2) This crisis has imposed a significant hardship on individuals who have limited budgets, are uninsured or who have prescription coverage that is unable to control costs successfully due to cost shifting and disparate pricing policies;
(3) That the average cost per prescription for seniors rose significantly between one thousand nine hundred ninety-two and two thousand, and is expected to continue increasing significantly through two thousand ten;
(4) State government agencies could achieve significant savings through the coordinated purchase of prescription drugs;
(5) That there is an increasing need for citizens of West Virginia to have affordable access to prescription drugs; and
(6) That the Legislature does not intend the imposition of the programs under this article to penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply schedule drug prices.
(b) In an effort to promote healthy communities and to protect the public health and welfare of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to provide affordable prescription drugs for all residents of West Virginia.
(c) That in chapter one hundred ninety three, Acts of the Legislature, regular session, two thousand four, the Legislature established a Pharmaceutical Cost Management Council and directed said council to recommend measures to decrease the cost of prescription drugs and, in particular, the establishment of a benchmark using or referencing the Federal Supply Schedule ('FSS') prices or using or referencing to the price, as adjusted for currency valuations, set by Canada Patented Medicine Prices Review Board (PMPRB) or any other appropriate reference price that would maximize savings to the broadest percentage of the population of this state. Further, the Legislature determined that prior to implementation of a reference pricing schedule and the strategic plan for implementation, a concurrent resolution approving the benchmark and the strategic plan must be passed.
(d) That in the third extraordinary session of two thousand four, a concurrent resolution was adopted on the sixteenth day of November, two thousand four, referred to as Senate Concurrent Resolution 301, which concurrent resolution established the FSS as the benchmark for the purchase of brand name pharmaceutical drugs and the strategic plan for the implementation of such program.
(e) That the Legislature intends to transfer the powers established in West Virginia Code §5A-3C to the Office of the Pharmaceutical Advocate.
§5A-3C-3. Definitions.
In this article:
(1) 'Advertising or marketing' means any manner of communication of information, either directly or indirectly, that is paid for and usually persuasive in nature about products, services or ideas related to pharmaceuticals by identified sponsors through various media, persons or other forms as further defined by legislative rule.
(2) 'Audit' means a systematic examination and collection of sufficient, competent evidential matter needed for an auditor to attest to the fairness of management's assertions in the financial statements and to evaluate whether management has sufficiently and effectively carried out its responsibilities and complied with applicable laws and regulations, conducted by an independent certified public accountant in accordance with the applicable statement on standards.
(3) 'Average wholesale price' means the amount determined from the latest publication of the Blue Book, a universally subscribed pharmacist reference guide annually published by the Hearst Corporation. 'Average wholesale prices' may also be derived electronically from the drug pricing database synonymous with the latest publication of the Blue Book and furnished in the National Drug Data File by First Data Bank, a service of the Hearst Corporation.
(4) 'Benchmark' means a point of reference which serves as the basis for beginning negotiations by the Pharmaceutical Advocate for pricing of brand name pharmaceuticals.
(5) 'Brand name drug' means an innovator drug as defined in this section.
(6) 'Dispensing fee' means the fee charged by a pharmacy to dispense pharmaceuticals.
(7) 'Drug manufacturer' or 'pharmaceutical manufacturer' means any entity which is engaged in:
(A) The production, preparation, propagation, compounding, conversion or processing of prescription drug products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; or
(B) In the packaging, repackaging, labeling, relabeling or distribution of prescription drug products. 'Drug manufacturer' or 'pharmaceutical manufacturer' does not include a wholesale distributor of drugs or a retail pharmacy licensed under state law.
(8) 'Federal supply schedule' means the price available to all federal agencies for the purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585. Federal supply schedule prices are intended to equal or better the prices manufacturers charge their 'most-favored' nonfederal customers under comparable terms and conditions.
(9) 'Labeler' means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the Food and Drug Administration pursuant to 21 C. F. R. §207.20 (1999).
(10) 'Multiple-source drug', 'innovator drug' and 'noninnovator drug' mean the following:
(A) The term 'multiple-source drug' means, when two or more drug products are: Rated as therapeutically equivalent (under the Food and Drug Administration's most recent publication of 'Approved Drug Products with Therapeutic Equivalence Evaluations'), except as provided in paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as determined by the Food and Drug Administration, and the term 'innovator drug' is referred to in this article as 'brand'. The term 'innovator drug' means a drug which is produced or distributed under an original new drug application approved by the Food and Drug Administration, including a drug product marketed by any cross-licensed producers or distributors operating under the new drug application and any multiple-source drug that was originally marketed under an original new drug application approved by the Food and Drug Administration. The term 'noninnovator drug' is referred to in this article as 'generic.' The term 'noninnovator drug' means a multiple-source drug that is not an 'innovator drug.'
(B) Paragraph (A) of this subdivision does not apply if the Food and Drug Administration changes by regulation the requirement that, for purposes of the publication described in paragraph (A) of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must be pharmaceutically equivalent and bioequivalent.
(11) 'Office of the Pharmaceutical Advocate' or 'Office' means the Office created pursuant to section four of this article.
(12) 'Person' means any natural person or persons or any corporation, partnership, company, trust or association of persons.
(13) 'Pharmaceutical Advocate' or 'Advocate' means the position created pursuant to section five of this article.
(14) 'Pharmacy benefit manager' means an entity that procures prescription drugs at a negotiated rate under a contract and which may serve as a third party prescription drug benefit administrator.
(15) 'Pharmaceutical drug detailing' or 'detailing' means the function performed by a sales representative who is employed by a pharmaceutical manufacturer for the purpose of; promotion of pharmaceutical drugs or related products; education about pharmaceutical drugs or related products; or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or meals.
(16) 'Prescription drug purchasing agreement' means a written agreement to pool all parties' prescription drug buying power in order to negotiate the best possible prices and which delegates authority to negotiate on behalf of the parties to the Advocate.
(17) 'Prescription drugs' mean substances recognized as drugs in the official 'United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or National Formulary,' or any supplement thereto, dispensed pursuant to a prescription issued by an authorized health care practitioner, for use in the diagnosis, cure, mitigation, treatment or prevention of disease in a human, as well as prescription drug delivery systems, testing kits and related supplies.
(18) 'Savings' means the difference between the previous price of a prescription drug including any discounts, rebates or price containments and the current price after the effective date of this article for the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs.
(19) 'Sole source' means a pharmaceutical that provides a unique and powerful advantage available in the market to a broad group of patients established under federal law.
(20) 'West Virginia Pharmaceutical Advocate Advisory Council' or 'Council' means the Council created pursuant to section eleven of this article.
§5A-3C-4. Creation of Office of Pharmaceutical Advocate; cooperation among state agencies; Medicaid and CHIP program.

(a) There is hereby created the Office of Pharmaceutical Advocate to continue the work of the West Virginia Pharmaceutical Cost Management Council. The purpose of this Office is to obtain favorable pharmaceutical prices for state agencies and other qualified entities pursuant to this article. The Office is under the direct supervision of the Pharmaceutical Advocate, who is responsible for the exercise of the duties and powers assigned to the Office under the provisions of this article.
(b) The Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs shall cooperate with the Office of the Pharmaceutical Advocate to meet the requirements of this article. Intergovernmental agreements shall be developed to establish the responsibilities of each entity in dealing with the provision of pharmaceuticals.
(c) The Medicaid program and the West Virginia Children's Health Insurance program may be exempt from participation in this program until approval by the Center for Medicare and Medicaid Services has been granted if it is determined to be required by the Pharmaceutical Advocate created under section five of this article.

§5A-3C-5. West Virginia Pharmaceutical Advocate; appointment; qualifications; oath; salary.

(a) The Office of the Pharmaceutical Advocate is under the supervision of the Pharmaceutical Advocate. The Advocate is the executive and administrative head of the office and shall be appointed by the Governor with advice and consent of the Senate. The Advocate shall be qualified by training and experience to direct the operations of the Office of the Pharmaceutical Advocate, and serves at the will and pleasure of the Governor. The duties of the Advocate include, but are not limited to, the management and administration of the Office of the Pharmaceutical Advocate.
(b) Notwithstanding any provision of this code to the contrary, the Advocate is the sole source for management and negotiation and purchase of all pharmaceuticals for all state agencies and other qualified entities including, but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs.
(c) The Advocate:
(1) Serves on a full-time basis and may not be engaged in any other profession or occupation;
(2) May not hold political office in the government of the state either by election or appointment while serving as the Advocate;
(3) Shall be a citizen of the United States and become a resident of the state within ninety days of appointment;
(4) Is entitled to receive an annual salary as provided by the Governor; and
(5) Is ineligible for civil service coverage as provided in section four, article six, chapter twenty-nine of this code. Any other employee hired by the Advocate is ineligible for civil service coverage.
(d) Before entering upon the discharge of the duties as Advocate, the Advocate shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia. The executed oath shall be filed in the office of the Secretary of State.
(e) The Advocate shall report directly to the Governor or the Governor's designee.
§5A-3C-6. West Virginia Pharmaceutical Advocate; powers and duties, hiring of staff.
(a) The Advocate serves as the Chairman of the Pharmaceutical Advocate Advisory Council established pursuant to section twelve of this article.
(b) The Advocate has the power and authority to:
(1) Purchase or enter into contracts or agreements as necessary to achieve the purposes of this article and pursuant to the provisions of section seven of this article;
(2) File suit;
(3) Evaluate and renegotiate existing contracts for state purchase of prescription drugs for cost savings;
(4) Negotiate and execute pharmacy benefit management contracts using the federal supply schedule as a benchmark for the purpose of managing rising costs for this state and all parties which have executed prescription drug purchasing agreements;
(5) Provide discount prices or rebate programs as prudent for persons without adequate prescription drug insurance;
(6) Work to achieve disclosure of the amount spent by prescription drug manufacturers with regard to expenditures for advertising, marketing, and promotion, as well as for provider incentives and research and development efforts;
(7) Facilitate programs aimed at educating health care practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various prescription drugs, with an emphasis on generic or therapeutic substitution for brand name drugs when available and appropriate; prescribing established, less-costly drugs instead of newer and more expensive drugs, when appropriate; and prescribing lower dosages of prescription drugs when appropriate and implement when the pharmaceutical advocate determines that it will have value to the citizens of the state;
(8) Facilitate the development of disease management programs in collaboration with physicians, mid-level practitioners, pharmacists and other health care providers aimed at enhancing the effectiveness of treating certain diseases identified as prevalent among this state's population with prescription drugs;
(9) Facilitate the establishment of voluntary private buying clubs, cooperatives or purchasing alliances comprised of small businesses or individuals for the purpose of purchasing prescription drugs at optimal prices;
(10) Develop and implement a program to maximize savings to the state and its citizens from Section 340B of the Federal Public Health Service Act, 42 U.S.C. 256b, as applicable;
(11) Develop, if it is determined to be necessary, and implement a program under which the State may become a licensed pharmaceutical wholesaler for the purposes of making pharmaceuticals obtained by a buying consortium available to local pharmacies;
(12) Investigate the feasibility of purchasing prescription drugs from sources in Canada, which may include the feasibility of the state or an instrumentality thereof serving as a wholesale distributor of prescription drugs in the state. Upon a determination by the Advocate that the same is feasible and in the best interests of the citizens of the State, the Advocate is authorized to pursue waivers from the federal government, including, but not limited to, from the United States Food and Drug Administration, as necessary for the State to accomplish prescription drug purchasing from sources in Canada;
(13) Develop and implement other programs, projects and initiatives to achieve the purposes of this article, including initiating, evaluating, and promoting other strategies that result in reduced costs of prescription drugs for the citizens of West Virginia, including, but not limited to:
(A) A common preferred drug list for the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs: Provided, That persons who are presently prescribed and are using specific anti-psychotic drugs used in the treatment of nervous or mental disorders shall not be required to change or modify their prescription as a result of the adoption of a common preferred drug list: Provided, however, That prior to the Advocate adopting a preferred drug list involving the Public Employees Insurance Agency, the Advocate shall obtain from the West Virginia University School of Pharmacy, or other appropriate entity or agency a confirmation that the efficacy and clinical appropriateness of each prescription drug contained on the preferred drug list is satisfactory to meet the prescription drug therapy needs of the members of the Public Employees Insurance Agency.
(B) A streamlined prior authorization process for state insurers; and
(C) Patient assistance programs in their current forms, as well as new programs, such as central fill pharmacy/bulk replenishment models.
(14) Undertake upon the effective date of this article and every two years thereafter a survey of West Virginia based pharmacies to determine their cost of dispensing a prescription. Surveys shall be conducted with the advice and participation of the West Virginia University School of Pharmacy and the University of Charleston School of Pharmacy. The Advocate may request cooperation of the West Virginia Pharmacists Association and the West Virginia Community Pharmacy Council in carrying out the requirements of this subsection. The Advocate shall utilize data from the surveys in negotiating and executing those provisions of pharmacy benefit management contracts and discount prescription drug programs that set dispensing fees to be paid pharmacies.
(c) The Advocate shall consult with the Council and employ such professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article.
(d) The Advocate, with input and advice from the Council, shall prepare and submit annual proposed appropriations for the Office of the Pharmaceutical Advocate and the Council to the Governor.
(e) Submit an annual report to the Governor and the Legislature on the condition, operation and functioning of the Office of the Pharmaceutical Advocate.
(f) Supervise the fiscal management and responsibilities of the Office of the Pharmaceutical Advocate.
(g) Keep an accurate and complete record of all Office of the Pharmaceutical Advocate proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and records of the Office;
(h) Present to the Legislative Oversight Commission on Health and Human Resource Accountability, the impact of the Medicare Modernization Act on the State and its citizens;
(i) Explore the value of implementing a discount card program for the citizens of the State and implement, at the discretion of the Pharmaceutical Advocate with the advise of the Council;
(j) Present twice annually, in July and December of each year, to the Joint Committee on Government and Finance the work of the Advocate and the benefit to the State beginning in July of 2005.
§5A-3C-7. Authorization to execute prescription drug purchasing agreements.
(a) The Advocate may execute, subject to the provisions of subsection (b) of this section and as permitted by applicable federal law, prescription drug purchasing agreements with:
(1) All departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions of this state, including, but not limited to, the Public Employee's Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services: Provided, That any contract or agreement executed with or on behalf of the Bureau of Medical Services shall contain all necessary provisions to comply with the provisions of Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., dealing with pharmacy services offered to recipients under the medical assistance plan of West Virginia;
(2) Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions;
(3) Regional or multistate purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members in order to increase bargaining power; and
(4) Arrangements with entities in the private sector, including, commercial insurance carriers, self-funded benefit plans and private and not-for-profit health care organizations toward combined purchasing of health care services, health care management services, pharmacy benefits management services or pharmaceutical products: Provided, That no private entity may be compelled to participate in the prescription drug purchasing pool.
(b) The Council created pursuant to section twelve of this article is responsible for reviewing any proposed contract authorized by this article before it is executed by the Advocate. If the Council determines that the proposed contract meets the requirements of this article and would assist in effectively managing the costs for the programs involved and would not result in jeopardizing state funds or funds due the state, it shall recommend to the Advocate to execute the contract.
(c) The Council may not recommend and the Advocate may not execute any agreement that does not effectively and efficiently manage rising drug costs on behalf of the parties to the agreement.
(d) The Council may not recommend and the Advocate may not execute any agreement that grants the state's credit for the purchase of prescription drugs by any entity other than this state.
§5A-3C-8. Audit required; reports.
(a) The Advocate shall cause to be conducted an audit of any funds expended pursuant to any prescription drug purchasing agreement or pharmacy benefit management contract executed under the provisions of this article for each fiscal year that the prescription drug purchasing agreement or pharmacy benefit management contract is in effect. The Advocate shall submit the audit to the Joint Committee on Government and Finance upon completion, but in no event later than the thirty-first day of December after the end of the fiscal year subject to the audit.
(b) The Advocate shall provide written notice to the Joint Committee on Government and Finance before executing a prescription drug purchasing agreement or a pharmacy benefit management contract or amending an existing prescription drug contract.
§5A-3C-9. Authorization to execute pharmacy benefit management contract.
The Advocate may negotiate and execute pharmacy benefit management contracts pursuant to review by the advisory council for the purpose of managing rising drug costs for this state and all parties which have executed prescription drug purchasing agreements with the state or any state agency, including, but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs.
§5A-3C-10. Authorization to amend existing contracts.
The Advocate may renegotiate and amend existing prescription drug contracts to which the state or any state agency, including, but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services, or other programs which are payors for prescription drugs is a party for the purpose of managing rising drug costs.
§5A-3C-11. Exemption from Purchasing Division requirements.
The provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article, except that the contracts and agreements shall be approved as to form and conformity with applicable law by the Attorney General.
§5A-3C-12. Creation of the West Virginia Pharmaceutical Advocate Advisory Council.
(a) The West Virginia Pharmaceutical Advocate Advisory Council is hereby created. The Council is an independent, self-sustaining council that has the powers and duties specified in this article.
(b) The Council is a part-time council whose members perform such duties as specified in this article. The ministerial duties of the Council shall be administered and carried out by the Office of the Pharmaceutical Advocate.
(c) Each member of the Council shall devote the time necessary to carry out the duties and obligations of the office. Those members appointed by the Governor may pursue and engage in another business or occupation or gainful employment that is not in conflict with the duties of the Council.
(d) The Council is self-sustaining and independent, however, it, its members, the Advocate and employees of the Office of the Pharmaceutical Council are subject to article nine-a of chapter six, chapter six-b, chapter twenty-nine-a and chapter twenty-nine-b of this code.

§5A-3C-13. Appointment of members of the West Virginia Pharmaceutical Advocate Advisory Council; chairman; qualifications and eligibility; reimbursement for expenses.

(a) The Council is comprised of the Pharmaceutical Advocate, the Secretary of the Department of Administration or his or her designee, the Director of the Public Employees Insurance Agency or his or her designee, the Commissioner of the Bureau of Medical Services of the Department of Health and Human Resources or his or her designee, the Secretary of the Department of Health and Human Resources or his or her designee, the Commissioner of the Bureau of Senior Services or his or her designee, the Secretary of the Department of Military Affairs and Public Safety or his or her designee, the Secretary of the Department of Education and the Arts or his or her designee, and five members from the public who shall be appointed by the Governor with the advice and consent of the Senate. One public member shall be a licensed pharmacist employed by a community retail pharmacy, one public member shall be a representative of a pharmaceutical manufacturer with substantial operations located in West Virginia that has at least seven hundred fifty employees, one public member shall be a primary care physician, one public member shall represent those who will receive benefit from the establishment of the Office of the Pharmaceutical Advocate and one public member shall have experience in the financing, development or management of a health insurance company which provides pharmaceutical coverage. Each public member shall serve for a term of four years. Of the public members of the Council first appointed, one shall be appointed for a term ending the thirtieth day of June, two thousand six, and two each for terms of three and four years. Each public member serves until his or her successor is appointed and has qualified. A member of the Council may be removed by the Governor for cause.
(b) The Pharmaceutical Advocate serves as Chairperson of the Council.
(c) Council members may not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
§5A-3C-14. Meeting requirements.
(a) The Council shall meet within the state at least once per calendar quarter or at such times as the Chairman may decide. The Council shall also meet upon a call of five or more members upon seventy-two hours written notice to each member.
(b) Seven members of the Council are a quorum for the transaction of any business and for the performance of any duty.
(c) A majority vote of the members present is required for any final determination by the Council. Voting by proxy is not allowed.
(d) The Council shall keep a complete and accurate record of all its meetings according to section five, article nine-a, chapter six of this code.
§5A-3C-15. Removal of Council members.
Notwithstanding the provisions of section four, article six, chapter six of this code, the Governor may remove any Council member for incompetence, misconduct, gross immorality, misfeasance, malfeasance or nonfeasance in office.
§5A-3C-16. General duties of the West Virginia Pharmaceutical Advocate Advisory Council.
The Council has general responsibility to review and provide advice and comment to the Office of the Pharmaceutical Advocate on its policies and procedures relating to the purchase of prescription drugs. The Council shall offer advice to the Office of the Pharmaceutical Advocate on matters over which the office has authority and oversight. This includes, but is not limited to:
(1) Hiring of professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article;
(2) Promulgation of rules, including emergency rules, that are necessary to carry out the provisions of this article;
(3) Contracts or agreements; and
(4) Development of policy necessary to meet the duties and responsibilities of the Office or the Advocate pursuant to the provisions of this article.
§5A-3C-17. Multistate discussion group; agreements.
The Advocate, for the purposes of administering, reviewing or amending the duties and responsibilities granted him or her by this article, shall continue to investigate the feasibility of mulitstate discussions and may enter into multistate discussions and agreements when to do so would enure to the financial benefit of all West Virginians who are consumers of pharmaceuticals.

§5A-3C-18. Authorization to take advantage of Acts of Congress, accept gifts, grants and matching funds.

The Office of the Pharmaceutical Advocate is authorized to take full advantage of the benefits and provisions of any Acts of Congress and to accept any and all gifts, grants and matching funds whether in the form of money or services.
§5A-3C-19. Agency's management ability continued.
Nothing contained in this article limits the ability of the various state agencies to enter into contracts or arrangements or to otherwise manage their pharmacy programs until such time as the programs created or authorized pursuant to this article are implemented.
§5A-3C-20. Restraint of trade; civil and criminal violations defined.
(a) The following are considered to restrain trade or commerce unreasonably and are unlawful:
(1) A contract, combination or conspiracy between two or more persons:
(A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or geographic, for any pharmaceutical; or
(2) The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this state, by any person for the purpose of or with the intent to exclude competition or control, fix or maintain pharmaceutical prices.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than ten years, or fined in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which may include treble damages, or both fined and confined.
(c) Any person violating the provisions of this section is liable for a civil penalty and fine in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which may include treble damages, for each violation.
(d) The county prosecuting attorney shall investigate suspected violations of, and institute criminal proceedings pursuant to, the provisions of this section.
(e) The Attorney General or special counsel appointed by the Governor, in his or her discretion, shall represent the state in all civil proceedings brought on behalf of the state to enforce the provisions of this section. After payment of all attorney fees and costs, no less than fifty percent of all judgments or settlements shall be placed in the General Revenue Fund of the state.
§5A-3C-21. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on aggregate national data, shall be reported to the Pharmaceutical Advocate by all manufacturers and labelers of prescription drugs dispensed in this state that employ, direct or utilize marketing representatives. The reporting shall assist this state in its role as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this state to determine the scope of prescription drug advertising costs and their effect on the cost of prescription drugs, utilization and delivery of health care services and furthering the role of this state as guardian of the public interest.
(b) The Advocate shall establish, by legislative rule pursuant to the provisions of article three, chapter twenty-nine-a of this code, the reporting requirements of information by labelers and manufacturers which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.
(c) The following are exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be distributed to patients;
(2) All payments of reasonable compensation and reimbursement of expenses in connection with a bona fide clinical trial. As used in this subdivision, 'clinical trial' means an approved clinical trial conducted in connection with a research study designed to answer specific questions about vaccines, new therapies or new ways of using known treatments; and
(3) All scholarship or other support for medical students, residents and fellows to attend significant educational, scientific or policy-making conferences of national, regional or specialty medical or other professional associations if the recipient of the scholarship or other support is selected by the association.
(d) The Advocate is authorized to establish time lines, the documentation, form and manner of reporting required as he or she determines necessary to effectuate the purposes of this article. The Advocate shall include in the annual report required pursuant to subsection (e) of section six of this article, in an aggregate form, the information provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary, information submitted to the Advocate pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia Freedom of Information Act. Data compiled in aggregate form by the Advocate for the purposes of reporting required by this section is a public record as defined in the West Virginia Freedom of Information Act, as long as it does not reveal trade information that is protected by state or federal law.
§5A-3C-22. State role; authority for participation by all state agencies.
(a) For purpose of implementing this article, the state is represented by the Pharmaceutical Advocate and he or she has authority to negotiate pharmaceutical prices to be paid by program participants. These negotiated prices shall be available to all programs.
(b) The Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs shall have the authority to participate in any program developed by the Office of the Pharmaceutical Advocate, including but not limited to, a uniform preferred drug list.

§5A-3C-23. Participation by private individuals, commercial insurance carriers, self-insured companies and others in negotiated drug pricing program.

(a) The Advocate, for the purposes of administering, reviewing or amending the duties and responsibilities granted him or her by this article, shall investigate the feasibility of including private individuals, commercial insurance carriers, self-insured companies and private and not-for-profit hospitals in a negotiated drug pricing program.
(b) The Advocate has the power to establish programs and procedure necessary to allow private individuals, commercial insurance carriers, self-insured companies and private and not-for-profit health care providers to participate in the negotiated drug pricing program. This power includes, but is not limited to, the power to:
(1) Negotiate and execute contracts or cooperative agreements necessary to permit private individuals, commercial insurance carriers, self-insured companies and private and not-for-profit health care providers to participate in the negotiated drug pricing program; and
(2) Promulgate legislative rules, pursuant to the provisions of article three, chapter twenty- nine-a of this code, necessary to facilitate the participation of private individuals, commercial insurance carriers, self-insured companies and private and not-for-profit health care providers in the negotiated drug pricing program.
§5A-3C-24. Rulemaking.
To implement any section of this article the Office of the Pharmaceutical Advocate, in consultation with the Council, shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code. This authority shall include emergency rule-making authority pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. These rules may include, but are not limited to:
(1) Development of criteria to establish a purchasing consortium, including, but not limited to, membership eligibility, which shall include state entities that are payors for prescription drugs and may include private individuals and commercial insurance carriers; self-funded benefit plans and private and not-for-profit health care providers; consortium operation and functionality and the manner and procedure for the consortium to either bid or negotiate pricing with pharmaceutical manufacturers using the federal supply schedule as a benchmark for obtaining lower priced pharmaceuticals;
(2) Development of a uniform preferred drug list for use by state entities who are payors for prescription drugs. These entities include, but are not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services, or other programs which are payors for prescription drugs;
(3) The reporting requirements of information by labelers and manufacturers required pursuant to section twenty-one of this article which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state;
(4) Development of a virtual wholesale program to allow the state to act as a pharmaceutical drug wholesaler and ensure that prices obtained by a buying consortium operated by the Pharmaceutical Advocate would be made available for purchase by local pharmacies if the Pharmaceutical Advocate finds it necessary;
(5) Procedural requirements of execution of pharmacy benefit management contracts pursuant to section nine of this article and prescription drug purchasing agreements pursuant to section seven of this article; and
(6) Other legislative and procedural rules considered necessary by the Pharmaceutical Advocate to carry out the duties and responsibilities prescribed to the Advocate or the Office of the Pharmaceutical Advocate in this article.
§5A-3C-25. Potential use of savings.
Savings identified by all program participants shall be quantified and certified to the Pharmaceutical Advocate and included in the annual report of the Pharmaceutical Advocate to the Governor and the Legislature provided in subsection (e) of section six of this article. Savings, or any part of the savings, created by the implementation of this program may, in the sole discretion of the Legislature, be directed towards the maintenance of existing state health programs and the expansion of insurance programs for the uninsured and underinsured.
§5A-3C-26. Sunset provision.
The Office of the Pharmaceutical Advocate, the Pharmaceutical Advocate and the Pharmaceutical Advocate Advisory Council shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand eight, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§5A-3C-27. Severability.
If any provision of this article is held to be unconstitutional or void, the remaining provisions of this article remain valid, unless the court finds the valid provisions are so essentially and inseparable connected with, and so dependent upon, the unconstitutional or void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the unconstitutional or void provision, or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the Legislative intent.
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary employees as necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and economically, and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the Governor, and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or fund specifically exempted by the Legislature from transfer, except that the use of appropriations from the State Road Fund transferred to the Office of the Secretary of the Department of Transportation is not a use other than the purpose for which such funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated to that agency, board or function in order to implement consolidation. The authority to transfer funds under this section shall expire on the thirtieth day of June, two thousand five;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and authorize the expenditure or obligating of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter, promulgation to be in accordance with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the department, without which written consent no proposal of a rule shall have any force or effect;
(13) Delegate to administrators duties of the secretary as he or she considers appropriate from time to time to facilitate execution of the powers, authority and duties delegated to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise prohibited by law.
(b) The secretaries of the departments created in this chapter shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:
(1) The elimination, reduction and restrictions in the use of the state's vehicles or other transportation fleet;
(2) The elimination, reduction and restrictions in the preparation of state government publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries in this section shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any such program and the powers granted to the secretary shall be so construed.
(d) The layoff and recall rights of employees within the classified service of the state as provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code, or the right of classified employees of the Board of Regents to the procedures and protections set forth in article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any provision of this code to the contrary the secretary of each department with authority over programs which are payors for prescription drugs, including but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veteran's homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate established pursuant to section four, article three-c, chapter five-a of this code for the purpose of purchasing prescription drugs for any program over which they have authority.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State Excess Lottery Revenue Fund.
(a) There is continued a special revenue fund within the State Lottery Fund in the State Treasury which is designated and known as the 'State Excess Lottery Revenue Fund.' The Fund consists of all appropriations to the Fund and all interest earned from investment of the Fund and any gifts, grants or contributions received by the Fund. All revenues received under the provisions of sections ten-b and ten-c, article twenty-two-a of this chapter and under article twenty-two-b of this chapter, except the amounts due the Commission under section 29-22B-1408(a)(1) of this chapter, shall be deposited in the State Treasury and placed into the 'State Excess Lottery Revenue Fund.' The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall not be treated by the Auditor and the State Treasurer as part of the general revenue of the state.
(b) For the fiscal year beginning the first day of July, two thousand two, the Commission shall deposit: (1) Sixty-five million dollars into the subaccount of the State Excess Lottery Revenue Fund hereby created in the State Treasury to be known as the 'General Purpose Account' to be expended pursuant to appropriation of the Legislature; (2) ten million dollars into the Education Improvement Fund for appropriation by the Legislature to the 'Promise Scholarship Fund' created in section seven, article seven, chapter eighteen-c of this code; (3) nineteen million dollars into the Economic Development Project Fund created in subsection (d) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) twenty million dollars into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty million dollars into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of said article; (6) ten million dollars into the Higher Education Improvement Fund for higher education; and (7) five million dollars into the State Park Improvement Fund for park improvements. For the fiscal year beginning the first day of July, two thousand three, the Commission shall deposit: (1) Sixty-five million dollars into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) seventeen million dollars into the Education Improvement Fund for appropriation by the Legislature to the 'Promise Scholarship Fund' created in section seven, article seven, chapter eighteen-c of this code; (3) nineteen million dollars into the Economic Development Project Fund created in subsection (d) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) twenty million dollars into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty million dollars into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code, to be spent in accordance with the provisions of said article; (6) ten million dollars into the Higher Education Improvement Fund for higher education; and (7) five million dollars into the State Park Improvement Fund for park improvements.
(c) For the fiscal year beginning the first day of July, two thousand four, and subsequent fiscal years, the Commission shall deposit: (1) Sixty-five million dollars into the General Purpose Account to be expended pursuant to appropriation of the Legislature; (2) twenty-seven million dollars into the Education Improvement Fund for appropriation by the Legislature to the 'Promise Scholarship Fund' created in section seven, article seven, chapter eighteen-c of this code; (3) nineteen million dollars into the Economic Development Project Fund created in subsection (d) of this section for the issuance of revenue bonds and to be spent in accordance with the provisions of said subsection; (4) nineteen million dollars into the School Building Debt Service Fund created in section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty million dollars into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) ten million dollars into the Higher Education Improvement Fund for higher education; and (7) five million dollars into the State Park Improvement Fund for park improvements. No portion of the distributions made as provided in this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section, may be used to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance of the bonds and payment of debt service on the bonds through statutory enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section, the distributions may be used only to fund capital improvements that are not financed by bonds and only pursuant to appropriation of the Legislature.
(d) The Legislature finds and declares that in order to attract new business, commerce and industry to this state, to retain existing business and industry providing the citizens of this state with economic security and to advance the business prosperity of this state and the economic welfare of the citizens of this state, it is necessary to provide public financial support for constructing, equipping, improving and maintaining economic development projects, capital improvement projects and infrastructure which promote economic development in this state.
(1) The West Virginia Economic Development Authority created and provided ~~for~~ in article fifteen, chapter thirty-one of this code shall, by resolution, in accordance with the provisions of this article and article fifteen, chapter thirty-one of this code, and upon direction of the Governor, issue revenue bonds of the Economic Development Authority in no more than two series to pay for all or a portion of the cost of constructing, equipping, improving or maintaining projects under this section or to refund the bonds at the discretion of the Authority. Any revenue bonds issued on or after the first day of July, two thousand two, which are secured by state excess lottery revenue proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the special fund provided in this section for the payment.
(2) There is continued in the State Treasury a special revenue fund named the 'Economic Development Project Fund' into which shall be deposited on and after the first day of July, two thousand two, the amounts to be deposited in said Fund as specified in subsections (b) and (c) of this section. The Economic Development Project Fund shall consist of all such moneys, all appropriations to the Fund, all interest earned from investment of the Fund and any gifts, grants or contributions received by the Fund. All amounts deposited in the Fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section, including any and all commercially customary and reasonable costs and expenses which may be incurred in connection with the issuance, refunding, redemption or defeasance thereof. The West Virginia Economic Development Authority may further provide in the resolution and in the trust agreement for priorities on the revenues paid into the Economic Development Project Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have been issued from time to time under the provisions of this article.
(3) After the West Virginia Economic Development Authority has issued bonds authorized by this section and after the requirements of all funds have been satisfied, including any coverage and reserve funds established in connection with the bonds issued pursuant to this subsection, any balance remaining in the Economic Development Project Fund may be used for the redemption of any of the outstanding bonds issued under this subsection which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.
(4) Bonds issued under this subsection shall state on their face that the bonds do not constitute a debt of the State of West Virginia; that payment of the bonds, interest and charges thereon cannot become an obligation of the State of West Virginia; and that the bondholders' remedies are limited in all respects to the 'special revenue fund' established in this subsection for the liquidation of the bonds.
(5) The West Virginia Economic Development Authority shall expend the bond proceeds from the revenue bond issues authorized and directed by this section for such projects as may be certified under the provision of this subsection: Provided, That the bond proceeds shall be expended in accordance with the requirements and provisions of article five-a, chapter twenty-one of this code and either article twenty-two or twenty-two-a, chapter five of this code, as the case may be: Provided, however, That if such bond proceeds are expended pursuant to article twenty-two-a, chapter five of this code and if the design-build board created under said article determines that the execution of a design-build contract in connection with a project is appropriate pursuant to the criteria set forth in said article and that a competitive bidding process was used in selecting the design builder and awarding such contract, such determination shall be conclusive for all purposes and shall be deemed to satisfy all the requirements of said article.
(6) For the purpose of certifying the projects that will receive funds from the bond proceeds, a committee is hereby established and comprised of the Governor, or his or her designee, the Secretary of the Department of ~~tax and~~ Revenue, the Executive Director of the West Virginia Development Office and six persons appointed by the Governor: Provided, That at least one citizen member must be from each of the state's three congressional districts. The committee shall meet as often as necessary and make certifications from bond proceeds in accordance with this subsection. The committee shall meet within thirty days of the effective date of this section.
(7) Applications for grants submitted on or before the first day of July, two thousand two, shall be considered refiled with the committee. Within ten days from the effective date of this section as amended in the year two thousand three, the lead applicant shall file with the committee any amendments to the original application that may be necessary to properly reflect changes in facts and circumstances since the application was originally filed with the committee.
(8) When determining whether or not to certify a project, the committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of funding;
(B) Whether funding for the amount requested in the grant application is or reasonably should be available from commercial sources;
(C) The ability of the project to create or retain jobs, considering the number of jobs, the type of jobs, whether benefits are or will be paid, the type of benefits involved and the compensation reasonably anticipated to be paid persons filling new jobs or the compensation currently paid to persons whose jobs would be retained;
(D) Whether the project will promote economic development in the region and the type of economic development that will be promoted;
(E) The type of capital investments to be made with bond proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No grant may be awarded to an individual or other private person or entity. Grants may be awarded only to an agency, instrumentality or political subdivision of this state or to an agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be certified to receive a low-interest loan paid from bond proceeds. The terms and conditions of the loan, including, but not limited to, the rate of interest to be paid and the period of the repayment, shall be determined by the Economic Development Authority after considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall conduct at least one public hearing, which may be held outside of Kanawha County. Notice of the time, place, date and purpose of the hearing shall be published in at least one newspaper in each of the three congressional districts at least fourteen days prior to the date of the public hearing.
(11) The committee may not certify a project unless the committee finds that the project is in the public interest and the grant will be used for a public purpose. For purposes of this subsection, projects in the public interest and for a public purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports and sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and facilities;
(F) Industrial parks, including construction of roads, sewer, water, lighting and other facilities;
(G) Improvements at state parks, such as construction, expansion or extensive renovation of lodges, cabins, conference facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on public or private land necessary to retain existing businesses or attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking and hiking trails, bike trails, picnic facilities, restrooms, boat docking and fishing piers, basketball and tennis courts, and baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national register of historic places;
(K) Retail facilities, including related service, parking and transportation facilities, appropriate lighting, landscaping and security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic development, educational opportunities or tourism opportunities thereby promoting the general welfare of this state and its residents.
(12) Prior to the issuance of bonds under this subsection, the committee shall certify to the Economic Development Authority a list of those certified projects that will receive funds from the proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other than by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying costs and making grants and loans as provided in this subsection, the surplus may be deposited in an account created in the State Treasury to be known as the 'Economic Development Project Bridge Loan Fund' to be administered by the Economic Development Authority created in article fifteen, chapter thirty-one of this code. Expenditures from the Fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code. Loan repayment amounts, including the portion attributable to interest shall be paid into the Fund created in this subdivision.
(e) If the Commission receives revenues in an amount that is not sufficient to fully comply with the requirements of subsections (b), (c) and (h) of this section, the Commission shall first make the distribution to the Economic Development Project Fund; second, make the distribution or distributions to the other funds from which debt service is to be paid; third, make the distribution to the Education Improvement Fund for appropriation by the Legislature to the Promise Scholarship Fund; and fourth, make the distribution to the General Purpose Account: Provided, That, subject to the provisions of this subsection, to the extent such revenues are not pledged in support of revenue bonds which are or may be issued from time to time under this section, the revenues shall be distributed on a pro rata basis.
(f) For the fiscal year beginning on the first day of July, two thousand two, and each fiscal year thereafter, the Commission shall, after meeting the requirements of subsections (b), (c) and (h) of this section and after transferring to the State Lottery Fund created under section eighteen of this article an amount equal to any transfer from the State Lottery Fund to the Excess Lottery Fund pursuant to subsection (f), section eighteen of this article, deposit fifty percent of the amount by which annual gross revenue deposited in the State Excess Lottery Revenue Fund exceeds two hundred twenty-five million dollars in a fiscal year in a separate account in the State Lottery Fund to be available for appropriation by the Legislature.
(g) When bonds are issued for projects under subsection (d) of this section or for the School Building Authority, infrastructure, higher education or park improvement purposes described in this section that are secured by profits from lotteries deposited in the State Excess Lottery Revenue Fund, the Lottery Director shall allocate first to the Economic Development Project Fund an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued, on or after the first day of July, two thousand two, as certified to the Lottery Director; and second, to the fund or funds from which debt service is paid on bonds issued under this section for the School Building Authority, infrastructure, higher education and park improvements an amount equal to one tenth of the projected annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued, on or after the first day of April, two thousand two, as certified to the Lottery Director. In the event there are insufficient funds available in any month to transfer the amounts required pursuant to this subsection, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.
(h) In fiscal year two thousand four and thereafter, prior to the distributions provided in subsection (c) of this section, the Lottery Commission shall deposit into the General Revenue Fund amounts necessary to provide reimbursement for the refundable credit allowable under section twenty-one, article twenty-one, chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for professional educators and public employees;
(B) Providing adequate funding for the Public Employees Insurance Agency; and
(C) Providing funding to help address the shortage of qualified teachers and substitutes in areas of need, both in number of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by any court to require any appropriation or any specific appropriation or level of funding for the purposes set forth in this subsection.
(j) The Legislature further directs the governor to focus resources on the creation of a prescription drug program for senior citizens by pursuing a medicaid waiver to offer prescription drug services to senior citizens; by investigating the establishment of purchasing agreements with other entities to reduce costs; by providing discount prices or rebate programs for seniors; by coordinating programs offered by pharmaceutical manufacturers that provide reduced cost or free drugs; by coordinating a collaborative effort among all state agencies to ensure the most efficient and cost effective program possible for the senior citizens of this state; and by working closely with the state's congressional delegation to ensure that a national program is implemented. The Legislature further directs that the governor report his progress back to the joint committee on government and finance on an annual basis beginning in November of the year two thousand one until a comprehensive program has been fully implemented.
On pages four and five, by amending the enacting section to read as follows:
"That §5-16-7b of the Code of West Virginia, 1931, as amended; be repealed; that §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9, §5-16C-10 of said code be repealed; that §5A-3-1a of said code be repealed; that §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code be amended and reenacted; that said article be amended by adding thereto new sections, designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25, §5A-3C-26, and §5A-3C-27; that §5F-2-2 of said code be amended and reenacted; and that §29-22-18a of said code be amended and reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2852- "A Bill to repeal §5-16-7b of the Code of West Virginia, 1931, as amended; to repeal §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9, §5-16C-10 of said code; to repeal §5A-3-1a of said code; to amend and reenact §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code; to amend said article by adding thereto new sections, designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25, §5A-3C-26, and §5A-3C-27; to amend and reenact §5F-2-2 of said code; and to amend and reenact §29-22-18a of said code, all relating generally to the creation of the Office of the Pharmaceutical Advocate and the transfer of most of the powers and responsibilities of the Pharmaceutical Cost Management Council to the Pharmaceutical Advocate; legislative findings; defining terms; powers and duties of the Office of the Pharmaceutical Advocate; creation of the cabinet level position of the Pharmaceutical Advocate; qualifications and salary of the Pharmaceutical Advocate; powers and duties of the Pharmaceutical Advocate; creation of the Pharmaceutical Advisory Council; qualifications of Council members; powers and duties of the Council; reporting requirements of the Council, the Pharmaceutical Advocate and the Office of the Pharmaceutical Advocate; transferring powers and duties of the West Virginia Public Employees Insurance Act to negotiate for and purchase pharmaceuticals to the Pharmaceutical Advocate; transfer of the powers and duties to negotiate and execute prescription drug purchasing agreements to the Pharmaceutical Advocate; transfer of the powers and duties to negotiate and execute pharmacy benefit management contracts to the Pharmaceutical Advocate; establishing the Federal Supply Schedule as a benchmark for the purchase of Brand name pharmaceutical drugs; exempting the Pharmaceutical Advocate from state purchasing requirements; authority to investigate the feasibility of purchasing Canadian drugs; authority to investigate multi-state discussion groups and agreements; elimination of the transfer of the clearinghouse program to the state; elimination of the transfer of the pharmaceutical discount program to the state; authorizing the Pharmaceutical Advocate to take advantage of act of congress, accept gifts, grants and matching funds; continuing agency management ability until the Office of the Pharmaceutical Advocate is operational; prohibiting restraint of trade and conforming the standards for same with other provisions of the code; providing civil and criminal penalties for restraint of trade; reporting of advertising costs to the Pharmaceutical Advocate; state role and responsibilities; participation by all state agencies who are payors for prescription drugs; authority for the Pharmaceutical Advocate to investigate participation in a preferred drug list by private individuals, commercial insurance carriers and self-insured companies; rule-making authority; identifying potential use of savings; sunset provisions; severability provision; transfer of the powers and duties of the West Virginia Pharmaceutical Cost Management Council to the Office of the Pharmaceutical Advocate; providing authority for the secretary of each department to cooperate with the Office of the Pharmaceutical Advocate in the purchase of prescription drugs; and elimination of requirement that the Governor focus resources on creation of a prescription drug program from the State Lottery Act."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with an amendment, as follows:
On page two, section two, line seventeen, following the word "a" by inserting the words "pricing schedule".
On page two, section two, line 18, following the word "schedule" by deleting the word "benchmark".
On page three, section two, line eight, following the word "Advocate" and the period by inserting the following:
"(f) The Legislature, while making no attempt to prevent the public from receiving information important to the appropriate utilization of medicines, is attempting to protect the financial solvency of the state from drug pricing increases caused by advertising directed to the consumer so as to sustain the unjustified utilization of new, often unproven, and expensive drugs. The specific state financial interest in reducing the price of prescription drugs, in addition to the general state interest of its financial solvency, includes the significantly increased Medicaid budget of the state caused by increasing numbers of West Virginia citizens in the program and also by significantly increasing costs of prescription drugs in the Medicaid budget. The specific state interest also includes the significantly increasing costs of prescription drugs in the budget of the state Public Employees Insurance Agency, the health insurance program for all of the state employees and participating political units of local government. The specific state interest also includes the significantly increasing costs of prescription drugs in the budgets of each state agency set out in section four of this article."
On page fifteen, section six, line five, following the number "2005" and the period by inserting the following:
"(14) If the pharmaceutical advocate, with the advice of the council, determines that a pharmaceutical manufacturer is negotiating pharmaceutical prices so that the savings to the state are substantial, reasonable and reflective of a genuine effort to reach agreement, the pharmaceutical advocate shall continue to participate in the negotiations with the specific goal of reducing the cost of pharmaceuticals for the citizens of the state. If the pharmaceutical advocate, with advise of the council, determines that any pharmaceutical manufacturer does not negotiate so that the savings to the state are substantial, reasonable and reflective of a genuine effort to reach agreement, the pharmaceutical advocate may develop and implement the FSS Pricing benchmark with a procedure for pharmaceutical manufacturers to apply for a waiver from the FSS pricing benchmark for Brand name drugs, which waiver may be granted by the pharmaceutical advocate with input from the council. The waiver may be granted to a pharmaceutical manufacturer for a particular Brand name drug after the pharmaceutical advocate determines that the development, production, distribution costs, other reasonable costs and reasonable profits, excluding all marketing and advertising costs, is more than the FSS benchmark price of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. Advertising and marketing costs may be considered in those cases in which the manufacturer has established that the drug is the only currently FDA- approved treatment for a recognized non-cosmetic medical condition or that it has proven to the FDA's satisfaction that it confers a significant benefit over existing treatments for the same condition, as evidenced by the agency's approval of such a claim in the drug's package insert. The determination of reasonable costs and reasonable profits may fluctuate between different pharmaceuticals under consideration. The advocate shall determine, by legislative rule, fees to be paid by the applicant at the time of the waiver application and proof required to be submitted at the time of the waiver request.".
On page thirteen, section six, line eleven, following the word "the" by striking out the words "involving the Public Employee Insurance Agency" and inserting inn lieu thereof the following "for program participants".
On page thirteen, section six, line sixteen, following the word "the" by striking out the words "members of the Public Employees Insurance Agency" and inserting in lieu thereof the words "participants in the pharmaceutical program."
And,
On page twenty-three, section twenty, line nine, following the word "prices" by changing the period to a semicolon and inserting the following:
"or
(3) Fixing, controlling, maintaining, limiting or discontinuing the production, manufacture, sale or supply of any pharmaceuticals for the purpose or with the effect of fixing, controlling or maintaining the market price of the pharmaceutical."
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 674), and there were--yeas 88, nays 12, absent and not voting none, with the nays being as follows:
Nays: Armstead, Ashley, Blair, Border, Carmichael, Hall, Lane, Overington, Schoen, Trump, Wakim and Walters.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2852) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 675), and there were--yeas 98, nays 2, absent and not voting none, with the nays being as follows:
Nays: Hall and Overington.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2852) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Frich requested the Clerk to record her as voting "Nay" on the adoption of the amendment to the Senate amendment.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2878, Relating to allowing the fraud unit to investigate the forgery of insurance documents.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page nineteen, section one-b, line three hundred thirty-seven, by striking out the words "to be".
On page twenty-three, section one-b, line four hundred twenty, after the word "unit" by striking out the comma.
On page twenty-six, section one-b, line four hundred seventy-six, after the word "department" by inserting the word "of".
On page thirty, section eight, line twenty, by striking out the words "thirty-three; chapter".
On page thirty, section eight, line twenty, after the words "twenty-three;" by inserting the words "chapter thirty-three;".
And,
On page thirty-two, section eight, line sixty, after the word "The" by inserting the word "insurance".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 676), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2878) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2891, Relating to the reorganization of the executive branch of state government.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended and reenacted; that §5A-8-15 of said code be amended and reenacted; that §5B-1-2 of said code be amended and reenacted; that §5B-3-4 and §5B- 3-5 of said code be amended and reenacted; that §5F-2-1 and §5F-2-2 of said code be amended and reenacted; that §10-5-2 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §10-5-5a; that §11-10A-6 and §11-10A-7 of said code be amended and reenacted; that §17-16A-3 and §17-16A-10 of said code be amended and reenacted; that §21A-1- 4 of said code be amended and reenacted; and that §49-9-15 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 6. OFFICE OF TECHNOLOGY
§5A-6-1. Findings and purposes.
The Legislature finds and declares that information technology is essential to finding practical solutions to the everyday problems of government, and that the management goals and purposes of government are furthered by the development of compatible, linked information systems across government. Therefore, it is the purpose of this article to create, as an integral part of the Department of Administration, the Office of Technology with the authority to advise and make recommendations to all state spending units on their information systems.
§5A-6-2. Definitions.
As used in this article:
(a) 'Information systems' means computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
(b) 'Information technology' means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance and training, and includes the programs and routines used to employ and control the capabilities of data processing hardware;
(c) 'Information equipment' includes central processing units, front-end processing units, miniprocessors, microprocessors and related peripheral equipment, including data storage devices, networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment, computer-based word processing systems other than memory typewriters;
(d) 'Related services' include feasibility studies, systems design, software development and time-sharing services whether provided by state employees or others;
(e) 'Telecommunications' means any transmission, emission or reception of signs, signals, writings, images or sounds of intelligence of any nature by wire, radio or other electromagnetic or optical systems. The term includes all facilities and equipment performing those functions that are owned, leased or used by the executive agencies of state government;
(f) 'Chief Technology Officer' means the person holding the position created in section three of this article and vested with authority to assist state spending units in planning and coordinating information systems that serve the effectiveness and efficiency of the individual state spending units, and further the overall management goals and purposes of government; and
(g) 'Experimental program to stimulate competitive research' (EPSCoR) means the West Virginia component of the national EPSCoR program which is designed to improve the competitive research and development position of selected states through investments in academic research laboratories and laboratory equipment. The recognized West Virginia EPSCoR, which is part of the Office of Technology, is the responsible organization for the coordination and submission of proposals to all federal agencies participating in the EPSCoR program.
§5A-6-3. Office of Technology; Chief Technology Officer; appointment and qualifications.
The Office of Technology is created within the Department of Administration. A Chief Technology Officer shall be appointed by and shall serve at the will and pleasure of the Governor. The Chief Technology Officer shall have knowledge in the field of information technology, experience in the design and management of information systems and an understanding of the special demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability. §5A-6-4. Powers and duties; professional staff.
(a) With respect to all state spending units the Chief Technology Officer may:
(1) Develop an organized approach to information resource management for this state;
(2) Provide, with the assistance of the Information Services and Communications Division of the Department of Administration, technical assistance to the administrators of the various state spending units in the design and management of information systems;
(3) Evaluate, in conjunction with the information services and communications division, the economic justification, system design and suitability of information equipment and related services, and review and make recommendations on the purchase, lease or acquisition of information equipment and contracts for related services by the state spending units;
(4) Develop a mechanism for identifying those instances where systems of paper forms should be replaced by direct use of information equipment and those instances where applicable state or federal standards of accountability demand retention of some paper processes;
(5) Develop a mechanism for identifying those instances where information systems should be linked and information shared, while providing for appropriate limitations on access and the security of information;
(6) Create new technologies to be used in government, convene conferences and develop incentive packages to encourage the utilization of technology;
(7) Engage in any other activities as directed by the Governor; and
(8) Charge a fee to the state spending units for evaluations performed and technical assistance provided under the provisions of this section. All fees collected by the Chief Technology Officer shall be deposited in a special account in the state treasury to be known as the 'Chief Technology Officer Administration Fund'. Expenditures from the fund shall be made by the Chief Technology Officer for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Amounts collected which are found to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
(b) With respect to executive agencies, the Chief Technology Officer may:
(1) Develop a unified and integrated structure for information systems for all executive agencies;
(2) Establish, based on need and opportunity, priorities and time lines for addressing the information technology requirements of the various executive agencies of state government;
(3) Exercise the authority inherent to the chief executive of the state as the Governor may, by executive order, delegate, to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to the design and management of information systems and the purchase, lease or acquisition of information equipment and contracts for related services;
(4) Draw upon staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human resources from any executive agency and the most effective and efficient uses of the fiscal resources of executive agencies, to consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel necessary to carry out the work of the Office of Technology and may approve reimbursement of costs incurred by employees to obtain education and training.

§5A-6-5. Notice of request for proposals by state spending units required to make purchases through the State Purchasing Division.

Any state spending unit that is required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information and telecommunication systems. The notice shall contain a brief description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer at the same time it submits its request for proposal to the State Purchasing Division.
§5A-6-6. Notice of request for proposals by state spending units exempted from submitting purchases to the State Purchasing Division.

(a) Any state spending unit that is not required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information or telecommunication systems. The notice shall contain a detailed description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer a minimum of ten days prior to the time it requests bids on the provision of the goods or services.
(b) If the Chief Technology Officer evaluates the suitability of the information and telecommunication equipment and related services under the provisions of subdivision (3), subsection (a), section four of this article and determines that the goods or services to be purchased are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the Chief Technology Officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than fifteen days following receipt of the notice from the Chief Technology Officer. §5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the Legislative Joint Committee on Government and Finance on the activities of his or her office. §5A-6-8. Exemptions.
The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4. Powers and duties of division generally; professional staff; telephone service.
(a) The Division is responsible for providing technical services and assistance to the various state spending units with respect to developing and improving data processing and telecommunications functions. The Division may provide training and direct data processing services to the various state agencies. The Division shall, upon request of the Chief Technology Officer, ~~within the office of the governor~~ provide technical assistance in evaluating the economic justification, system design and suitability of equipment and systems used in state government. The Director shall report to the Chief Technology Officer ~~secretary~~.
(b) The Director is responsible for the development of personnel to carry out the technical work of the Division and may approve reimbursement of costs incurred by employees to obtain education and training.
(c) The Director may assess each state spending unit for the cost of any evaluation of the economic justification, system design and suitability of equipment and systems used by the state spending unit or any other technical assistance that is provided or performed by the Chief Technology Officer and the Division under the provisions of section four, article ~~one-b~~ six of this chapter.
(d) The Director shall transfer any moneys received as a result of the assessments that he or she makes under subsection(c) of this section to the Office of ~~chief~~ Technology ~~officer~~. The Director shall report quarterly to the Joint Committee on Government and Finance on all assessments made pursuant to subsection (c) of this section.
(e) The Director shall maintain an accounting system for all telephone service to the state.
(f) The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.

§5A-8-15. Records management and preservation of county records; alternate storage of county records; Records Management and Preservation Board; qualifications and appointment of members; reimbursement of expenses; staffing; rule- making authority; study of records management needs of state agencies; grants to counties.

The Legislature finds that the use of electronic technology and other procedures to manage and preserve public records by counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of ~~any unit of each~~ a county, hereinafter referred to as a county government entity, whether organized and existing under a charter or under general law, shall promote the principles of efficient records management and preservation of local records. ~~Such~~ A county governing entity may, as far as practical, follow the program established for the uniform management and preservation of county records as set out in a ~~rule or~~ rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as proposed by the Records Management and Preservation Board ~~established herein~~.
(b) In the event ~~any such~~ ~~governing body or the chief elected official of a unit of~~ a county government entity decides to destroy or otherwise dispose of a county record, the ~~governing body or such chief elected official~~ county government entity may, prior to destruction or disposal thereof, offer the record to the Director of the Section of Archives and History of the Division of Culture and History for preservation of the record as a document of historical value. Unless authorized by the Supreme Court of Appeals, the records of courts of record and magistrate courts are not affected by the provisions of this section.
(c)(1) A preservation duplicate of a county government entity record may be stored in any format, approved by the Board ~~as hereinafter established, where~~ in which the image of the original record is preserved in a form, including CD-ROM and optical image storage media, in which the image ~~thereof~~ is incapable of erasure or alteration and from which a reproduction of the stored record may be retrieved ~~which~~ that truly and accurately depicts the image of the original county government record.
(2) Except for those formats, processes and systems used for the storage of records on the effective date of this section, no alternate format for the storage of county government entity records described in this section is authorized for the storage of county government entity records unless the particular format has been approved pursuant to a legislative rule promulgated by the Board ~~as herein created~~ in accordance with the provisions of chapter twenty-nine-a of this code. The Board ~~as herein established~~ may prohibit the use of any format, process or system used for the storage of records upon its determination that the same is not reasonably adequate to preserve the records from destruction, alteration or decay.
(3) Upon creation of a preservation duplicate ~~which~~ that stores an original county government entity record in an approved format ~~in which the image thereof~~ that is incapable of erasure or alteration and ~~from which a reproduction of the stored record~~ that may be retrieved ~~which~~ in a format that truly and accurately depicts the image of the original record, the county government entity may destroy or otherwise dispose of the original in accordance with the provisions of section seven-c, article one, chapter fifty-seven of this code.
(d) ~~There is hereby created~~ A Records Management and Preservation Board for county government entities, is continued to be composed of nine members.
(1) Three members shall serve ex officio. One member shall be the Commissioner of the Division of Culture and History or designee who shall be the ~~chairman~~ chair of the Board. One member shall be the Administrator of the Supreme Court of Appeals or designee. One member shall be the ~~administrator of~~ ~~the governor's office of~~ Chief Technology Officer or ~~his or her~~ designee.
(2) The Governor shall appoint ~~six~~ eight members of the Board with the advice and consent of the Senate. Not more than five appointments to the Board may be from the same political party and not more than three members may be appointed from the same congressional district. Of the ~~six~~ eight members appointed by the Governor:
(i) ~~Three~~ Five appointments shall be county elected officials, one of whom shall be a clerk of ~~the~~ a county commission, one of whom shall be a circuit court clerk ~~and~~, one of whom shall be a county commissioner, one of whom shall be a county sheriff, and one of whom shall be a county assessor, to be selected from a list of ~~nine~~ fifteen names.~~, including the~~ ~~names~~ ~~of three~~ The names of three clerks of county commissions and three circuit court clerks shall be submitted to the Governor by the West Virginia Association of Counties. ~~and the~~ The names of three county commissioners shall be submitted to the Governor jointly by the West Virginia Association of Counties and the West Virginia County Commissioners Association. The names of three county sheriffs shall be submitted to the Governor by the West Virginia Sheriff's Association. And the names of three county assessors shall be submitted to the Governor by the Association of West Virginia Assessors;
(ii) One appointment shall be a county prosecuting attorney to be selected from a list of three names submitted by the West Virginia Prosecuting Attorneys Institute;
(iii) One appointment shall be an attorney licensed in West Virginia and in good standing as a member of the West Virginia State Bar with experience in real estate and mineral title examination, to be selected from a list of three names submitted by the State Bar; and
(iv) One appointment shall be a representative of a local historical or genealogical society.
(e) The members of the Board shall serve without compensation but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the Board in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration. In the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state.
(f) The staff of the Board shall consist of the Director of the Archives and History Section of the Division of Culture and History and ~~such~~ any additional staff ~~as he or she may designate to assist him or her~~ as needed.
(g) ~~On or before the first day of July, two thousand one, the~~ The Board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish a system of records management and preservation for county governments: Provided, That, for the retention and disposition of records of courts of record and magistrate courts, the implementation of the rule is subject to action of by the ~~West Virginia~~ Supreme Court of Appeals of West Virginia. The proposed ~~rule or~~ rules shall include provisions for establishing a program of grants to county governments for making records management and preservation uniform throughout the state. The Board is not authorized to propose or promulgate emergency rules under the provisions of this section.
(h) On or before the first day of April, two thousand two, the Board, in cooperation with the administrator and state executive agencies under the general authority of the Governor, shall conduct a study of the records management and preservation needs of state executive agencies. Should ~~the Board determine a need for a uniform records management and preservation system for such~~ ~~agencies,~~ it shall recommend that the administrator propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for the implementation of a uniform records management and preservation system for state executive agencies.
~~(i)~~ In addition to the fees charged by the clerk of the county commission under the provisions of section ten, article one, chapter fifty-nine of this code, the clerk shall charge and collect an additional one-dollar fee for every document containing less than ten pages filed for recording and an additional one-dollar fee for each additional ten pages of ~~such~~ document filed for recording. At the end of each month, the clerk of the county commission shall deposit into the ~~special~~ Public Records and Preservation Account as ~~herein~~ established in the State Treasury all fees collected: Provided, That the clerk may retain not more than ten percent of ~~such~~ the fees for costs associated with the collection of the fees. Clerks shall be responsible for accounting for the collection and deposit in the State Treasury of all fees collected by ~~such~~ the clerk under the provisions of this section.
(i) There is hereby created in the State Treasury a special account entitled the 'Public Records and Preservation Revenue Account'. The account shall consist of all fees collected under the provisions of this section, legislative appropriations, interest earned from fees, investments, gifts, grants or contributions received by the Board. Expenditures from the account shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter ~~five-a~~ eleven-b of this code: ~~Provided,~~ ~~That for the fiscal year ending the thirtieth day of June, two thousand one, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature~~.
(j) Subject to the above provision, the Board may expend the funds in the account to implement the provisions of this article. In expending funds from the account, the Board shall allocate not more than fifty percent of ~~such~~ the funds for grants to counties for records management, access and preservation purposes. The Board shall provide for applications, set guidelines and establish procedures for distributing grants to counties including a process for appealing an adverse decision on a grant application. Expenditures from the account shall be for the purposes set forth in this section, including the cost of additional staff of the Division of Archives and History.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.

§5B-1-2. Agencies, boards, commissions, divisions and offices comprising the Department of Commerce.

The Department of Commerce consists of the following agencies, boards, commissions, divisions and offices, including all of the allied, advisory, affiliated or related entities, which are incorporated in and ~~shall be~~ administered as part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two- a of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the Tourism Commission, provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code; ~~and~~
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs provided in chapter twenty-one-a of this code.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.

§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.

(a) The Joint Commission on Economic Development may review any procedural rule, interpretive rule or existing legislative rule and make recommendations concerning the rules to the Legislature.
(b) The Development Office and the Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and development councils, West Virginia Rural Development Council, ~~governor's~~ Office of Technology and West Virginia Clearinghouse for Workforce Education shall each file a copy of its legislative rules with the commission as provided for in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty-nine-a of this code relating to economic development or workforce development shall file the rules with the Joint Commission at the time the rules are filed with the Secretary of State prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint Commission on Economic Development Studies.
(a) The Joint Commission on Economic Development shall study the following:
(1) The feasibility of establishing common regional configurations for ~~such purposes as~~ local workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers, complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the Commission shall recommend legislation establishing common regional designations for all feasible purposes ~~the commission considers feasible~~. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:
(A) Geographic areas served by local educational agencies and intermediate educational agencies;
(B) Geographic areas served by post-secondary educational institutions and area vocational education schools;
(C) The extent to which the local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in the local areas; and
(E) The resources of the local areas that are available to effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and
(3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the ~~Bureau~~ Department of Commerce and the Development Office that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the Joint Commission to assemble and compile a tremendous amount of information. The Development Office will assist the Joint Commission in the collection and analysis of this information. The Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty- one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and development councils, West Virginia Rural Development Council, ~~governor's~~ Office of Technology and West Virginia Clearinghouse for Workforce Education ~~all~~ shall provide a copy of the ~~agency's~~ their annual ~~report~~ reports as submitted to the Governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia Development Office. The Development Office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the Joint Commission on or before the thirty-first day of December.
(c) The Legislative Auditor shall provide to the Joint Commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.
(d) The Joint Commission shall complete the studies set forth in this section and any other studies the Joint Commission determines to undertake prior to the first day of December of each year and may make recommendations, including recommended legislation for introduction during the regular session of the
Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency and Public Employees Insurance Agency Advisory Board provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided for in article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this code;
(5) Education and State Employees Grievance Board provided for in article twenty-nine, chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(6) Board of Risk and Insurance Management provided for in article twelve, chapter twenty- nine of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this code; and
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Commerce:
(1)Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two- a of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the Tourism Commission provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code; ~~and~~
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs provided in chapter twenty-one-a of this code.
(c) The Economic Development Authority provided ~~for~~ in article fifteen, chapter thirty-one of this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and Board provided in article one, chapter twenty- two-c of this code is continued as an independent agency within the executive branch.
(e) ~~Bureau of employment programs provided in article one, chapter twenty-one-a of this code is continued as an independent agency within the executive branch.~~
~~(f)~~ Workers' Compensation Commission provided in article one, chapter twenty-three of this code is continued as an independent agency within the executive branch.
~~(g)~~ (f) ~~Bureau of Environment is abolished and the~~ The following agencies and boards, including all of the allied, advisory, ~~and~~ affiliated or related entities and funds associated with any agency or board, are ~~transferred to~~ incorporated in and administered as part of the Department of Environmental Protection for purposes of administrative support and liaison with the Office of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of this code.
~~(h)~~ (g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one, chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section two, article ten-a, chapter eighteen of this code.
~~(i)~~ (h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided ~~for~~ in article eleven, chapter five of this code;
(2) Division of Human Services provided ~~for~~ in article two, chapter nine of this code;
(3) Bureau for Public Health provided ~~for~~ in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council ~~thereto~~ provided ~~for~~ in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided ~~for~~ in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided ~~for~~ in article fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided ~~for~~ in article twenty, chapter twenty-nine of this code; and
(8) The Child Support Enforcement Division provided ~~for~~ in chapter forty-eight of this code.
~~(j)~~ (i) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided ~~for~~ in article one-a, chapter fifteen of this code;
(2) Armory Board provided ~~for~~ in article six, chapter fifteen of this code;
(3) Military Awards Board provided ~~for~~ in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided ~~for~~ in article two, chapter fifteen of this code;
(5) ~~Office of Emergency Services~~ Division of Homeland Security and Emergency Management and Disaster Recovery Board provided ~~for~~ in article five, chapter fifteen of this code and Emergency Response Commission provided ~~for~~ in article five-a of said chapter;
(6) Sheriffs' Bureau provided ~~for~~ in article eight, chapter fifteen of this code;
(7) Division of Corrections provided ~~for~~ in chapter twenty-five of this code;
(8) Fire Commission provided ~~for~~ in article three, chapter twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided ~~for~~ in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided ~~for~~ in article twelve, chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council provided ~~for~~ in article one, chapter nine-a of this code.
~~(k)~~ (j) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Revenue:
(1) Tax Division provided ~~for~~ in article one, chapter eleven of this code;
(2) Racing Commission provided ~~for~~ in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided ~~for~~ in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided ~~for~~ in article two, chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided ~~for~~ in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided ~~for~~ in article three, chapter thirty- one-a of this code;
(7) Lending and Credit Rate Board provided ~~for~~ in chapter forty-seven-a of this code;
(8) Division of Banking provided ~~for~~ in article two, chapter thirty-one-a of this code;
(9) The State Budget Office~~, formerly known as the Budget Section of the Finance Division, Department of Administration, previously provided for in article two, chapter five-a of this code and now~~ provided ~~for~~ in article two of this chapter;
(10) The Municipal Bond Commission provided ~~for~~ in article three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided ~~for~~ in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided ~~for~~ in article five-a, chapter twenty-nine of this code.
~~(l)~~ (k) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are ~~transferred to and~~ incorporated in and administered as a part of the Department of Transportation:
(1) Division of Highways provided ~~for~~ in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided ~~for~~ in article sixteen- a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided ~~for~~ in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided ~~for~~ in article two, chapter seventeen-b of this code;
(5) Aeronautics Commission provided ~~for~~ in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided ~~for~~ in article eighteen, chapter twenty-nine of this code; and
(7) Port Authority provided ~~for~~ in article sixteen-b, chapter seventeen of this code.
( m) (l) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the ~~existence of~~ the position of administrator and ~~of the agency and~~ the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
~~(n)~~ (m) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of the boards are not affected by the enactment of this chapter. ~~and~~ All boards ~~which~~ that are appellate bodies or ~~were otherwise established to be~~ are independent decision makers ~~will~~ shall not have their appellate or independent decision-making status affected by the enactment of this chapter.
~~(o)~~ (n) Any department previously transferred to and incorporated in a department ~~created in section two, article one of this chapter~~ by prior enactment of this section ~~in chapter three, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent amendments~~ means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
~~(p)~~ (o) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the Office of the Governor, a department secretary or a bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary ~~such~~ employees as may be necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and economically, and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the Governor, and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from transfer, except that the use of appropriations from the State Road Fund transferred to the Office of the Secretary of the Department of Transportation is not a use other than the purpose for which ~~such~~ the funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated to ~~such~~ the agency, board or function in order to implement ~~such~~ consolidation. The authority to transfer funds under this section shall expire on the thirtieth day of June, two thousand ~~six~~ five;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and authorize the expenditure or ~~obligating~~ obligation of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers ~~heretofore~~ granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers ~~heretofore~~ granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter~~, such promulgation to be~~ in accordance with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the department,. Without ~~which~~ written consent, no proposal of for a rule shall have any force or effect;
(13) Delegate to administrators ~~such~~ the duties of the secretary as the secretary may deem appropriate from time to time to facilitate execution of the powers, authority and duties delegated to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:
(1) The elimination, reduction and ~~restrictions in the use~~ restriction of the state's vehicle or other transportation fleet;
(2) The elimination, reduction and ~~restrictions in the preparation~~ restriction of state government publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any ~~such~~ program ~~and the powers granted to the secretary shall be so construed~~.
(d) The layoff and recall rights of employees within the classified service of the state as provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code, or the right of classified employees of the Board of Regents to the procedures and protections set forth in article twenty-six-b, chapter eighteen of this code. (e) Notwithstanding any other provision of this code to the contrary, the secretary of each department with authority over programs which are payors for prescription drugs, including but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions including nursing homes and veteran's homes, the Division of Rehabilitation, public health departments, the Bureau of Medical Services and other programs that are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate established pursuant to section four, article sixteen-d, chapter five of this code for the purpose of purchasing prescription drugs for any program over which they have authority.
CHAPTER 10. PUBLIC LIBRARIES; PUBLIC RECREATION; ATHLETIC ESTABLISHMENTS; MONUMENTS AND MEMORIALS; ROSTER OF
SERVICEMEN; EDUCATIONAL BROADCASTING AUTHORITY.
ARTICLE 5. EDUCATIONAL BROADCASTING AUTHORITY.
§10-5-2. West Virginia Educational Broadcasting Authority; members; organization; officers; employees; meetings; expenses.

(a) The West Virginia Educational Broadcasting Authority~~, heretofore created,~~ is hereby continued as a public benefit corporation. It The Authority shall consist of eleven voting members, who shall be residents of the state, ~~of whom~~ ~~one shall be~~ including the Governor or designee, the State Superintendent of Schools, one ~~shall be a~~ member of the West Virginia Board of Education to be selected by it annually, and one ~~shall be a~~ member of the ~~university of West Virginia board of trustees~~ West Virginia Higher Education Policy Commission to be selected by it annually. ~~and one shall be a member of the board of directors of the state college system to be selected by it annually~~ The other seven members shall be appointed by the Governor by and with the advice and consent of the Senate for overlapping terms of seven years, one term expiring each year. ~~except that the appointment to fill the membership position for the term expiring in the year one thousand nine hundred eighty-three, shall be for a term of six years~~ Not less than one appointive member shall come from each congressional district. Employees of noncommercial broadcasting stations in West Virginia are not eligible for appointment to the Authority. ~~The present members of the authority shall continue to serve out the terms to which they were appointed.~~ Any vacancy among the appointive members shall be filled by the Governor by appointment for the unexpired term.
The chairperson and vice chairperson of the authority as of the effective date of this section shall continue in their respective offices until their successors are elected. Thereafter, at its annual meeting in each year the authority shall elect one of its members as chairperson and one as vice chairperson. The authority is authorized to select an executive director and such other personnel as may be necessary to perform its duties and to fix the compensation of such personnel to be paid out of moneys appropriated for this purpose. The executive director shall keep a record of the proceedings of the authority and shall perform such other duties as it may prescribe.
(b) The Governor or designee serves as chair. The Authority shall annually select one of its public members as vice chair and shall appoint a secretary who need not be a member of the Authority and who shall keep records of its proceedings.
(c) The Governor appoints an Executive Director of the Authority with the advice and consent of the Senate. The Executive Director serves at the Governor's will and pleasure. The Executive Director is responsible for managing and administering the daily functions of the Authority and for performing all other functions necessary to the effective operation of the Authority. The compensation of the Executive Director is annually fixed by the Governor. The Authority is authorized to establish ~~such~~ ~~office or~~ offices ~~as may be necessary~~ for the proper performance of its duties.
(d) The Authority shall hold an at least one annual meeting. ~~and may meet at such other times and places as may be necessary, such meetings to be held~~ The time and place of the meetings shall be established upon its own resolution or at the call of the chairperson of the Authority. The members shall serve without compensation but may be reimbursed for ~~actual expenses incident to the performance of their duties upon presentation to the chairperson of an itemized sworn statement thereof~~ all reasonable and necessary expenses actually incurred in the performance of their duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

§10-5-5a. Advisory Committee on Journalistic and Editorial Integrity.

(a) The Authority shall appoint an Advisory Committee on Journalistic and Editorial Integrity, which shall consist of five qualified members to serve staggered terms of three years. The Advisory Committee shall annually elect a chair, vice chair and secretary.
(b) The Advisory Committee shall advise the Authority on issues related to the journalistic independence and editorial integrity of public education and public broadcasting stations, which have the same constitutional protections as other journalistic enterprises in West Virginia.
CHAPTER 11. TAXATION.
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS. §11-10A-6. Chief Administrative Law Judge; appointment, term and

vacancy; qualifications; compensation; conflicts of interest prohibited; removal.

(a) The Governor, with the advice and consent of the Senate, shall appoint the Chief Administrative Law Judge from a list of three qualified nominees submitted to the Governor by the Board of Governors of the West Virginia State Bar for a ~~six~~ four-year term. An appointment to fill a vacancy in the position shall be for the unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state and who has five years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise or as a judge of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be set by the Secretary of the Department of ~~Tax and~~ Revenue created in section two, article one, chapter five-f of this code. The salary shall be within the salary range for comparable chief administrative law judges as determined by the State Personnel Board created by section six, article six, chapter twenty-nine of this code.
(d) The Chief Administrative Law Judge, during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the Chief Administrative Law Judge from being a member of a national, state or local bar association or committee, or of any other similar ~~type~~ group or organization, or to prohibit the Chief Administrative Law Judge from engaging in the practice of law by representing himself, herself or his or her immediate family in their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.
(e) The Governor may remove the Chief Administrative Law Judge only for incompetence, neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall be in the same manner as that specified for removal of elected state officials in section six, article six, chapter six of this code.

§11-10A-7. Powers and duties of Chief Administrative Law Judge; all employees, except Chief Administrative Law Judge, members of classified service; qualifications of administrative law judges.

(a) The Chief Administrative Law Judge is the chief executive officer of the Office of Tax Appeals and he or she may employ ~~up to two administrative law judges, no more than~~ one person to serve as executive director, ~~no more than~~ one staff attorney and other clerical personnel as necessary for the proper administration of this article. The Chief Administrative Law Judge may delegate administrative duties to other employees, but the Chief Administrative Law Judge shall be responsible for all official delegated acts.
(1) Upon the request of the Chief Administrative Law Judge, the Governor may appoint up to two administrative law judges as necessary for the proper administration of this article.
~~(1)~~(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law Judge, shall be in the classified service and shall be governed by the provisions of the statutes, rules and policies of the classified service in accordance with the provisions of article six, chapter twenty- nine of this code.
~~(2)~~(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall be admitted to the practice of law in this state and have at least two years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise.
~~(3)~~(4) The Chief Administrative Law Judge and all administrative law judges shall be members of the public employees retirement system and do not qualify as participants in the judicial retirement system during their tenure with the Office of Tax Appeals.
(4) Notwithstanding any provisions of this code to the contrary, the Chief Administrative Law Judge shall employ any person not a temporary or probationary employee employed full-time and in good standing by the Tax Division in its hearings office applying for a position with the Office of Tax Appeals. A former Tax Division employee employed by the Office of Tax Appeals under the provisions of this subdivision shall retain his or her classified service classification, salary and benefits: ~~Provided,~~ That if an employee is currently classified as a chief administrative law judge, he or she may not retain that classification and must be reclassified as determined by the Secretary of the Department of tax and Revenue.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges as to legal accuracy, clarity and other requirements;
(5) Publish decisions in accordance with the provisions of section sixteen of this article;
(6) Submit to the Legislature, on or before the fifteenth day of February, an annual report summarizing the Office of Tax Appeals' activities since the end of the last report period, including a statement of the number and type of matters handled by the Office of Tax Appeals during the preceding fiscal year and the number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out the purposes of this article.
CHAPTER 17. ROADS AND HIGHWAYS.

ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND TOURISM AUTHORITY.

§17-16A-3. West Virginia Parkways, Economic Development and Tourism Authority generally.

On and after the first day of June, one thousand nine hundred eighty-nine, the West Virginia turnpike commission is hereby abolished in all respects, and there is hereby created the 'West Virginia Parkways, Economic Development and Tourism Authority', and by that name the parkways authority may sue and be sued and plead and be impleaded. ~~The parkways authority is hereby constituted~~
(a) The West Virginia Parkways, Economic Development and Tourism Authority is continued as an agency of the state, and the exercise by the Parkways Authority of the powers conferred by this article in the construction, reconstruction, improvement, operation and maintenance of parkway, economic development and tourism projects shall be deemed ~~and held to be~~ an essential governmental function of the state. (b) The West Virginia Parkways, Economic Development and Tourism Authority shall consist of seven members, including the Governor or designee, the Transportation Secretary~~, who shall serve as chairman of the parkways authority, and~~ ~~six~~ and five public members~~, including no less than one from each of the counties which have land bordering parkway projects,~~ appointed by the Governor, by and with the advice and consent of the Senate. The appointed members shall be residents of the state and shall have been qualified electors ~~therein~~ for a period of at least one year next preceding their appointment. ~~Upon the effective date of this legislation, the governor shall forthwith appoint six members of the parkways authority for staggered terms.~~ ~~The terms of the parkways authority members first taking office on or after the effective date of this legislation shall expire as designated by~~ the governor at the time of the nomination, one at the end of the first year, one at the end of the second year, one at the end of the third year, one at the end of the fifth year, one at the end of the sixth year and one at the end of the seventh year, after the first day of June, one thousand nine hundred eighty-nine. As these original appointments expire, each subsequent appointment shall be for a full eight-year term. Public members are appointed for eight-year terms, which are staggered in accordance with the initial appointments under prior enactment of this section. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member shall be eligible for reappointment. The term of any person serving as a member of the West Virginia turnpike commission immediately preceding the effective date of this legislation shall cease and otherwise expire upon such effective date: ~~Provided,~~ ~~That any such member shall be eligible for reappointment.~~ Each appointed member of the Parkways Authority before entering upon his or her duties shall take an oath as provided by section five, article IV of the constitution of ~~the state of~~ West Virginia.
(b) ~~The parkways~~ The Governor or designee shall serve as chair and the Authority shall annually elect one of the appointed members as vice ~~chairman~~ chair, and shall also elect a secretary and treasurer who need not be members of the Parkways Authority.
(c) The Governor appoints an Executive Director of the Authority with the advice and consent of the Senate. The Executive Director serves at the Governor's will and pleasure. The Executive Director is responsible for managing and administering the daily functions of the Authority and for performing all other functions necessary to the effective operation of the Authority. The compensation of the Executive Director is annually fixed by the Governor. (d) Four members of the Parkways Authority shall constitute a quorum and the vote of a majority of members present shall be necessary for any action taken by the Parkways Authority. No vacancy in the membership of the Parkways Authority shall impair the right of a quorum to exercise all the rights and perform all the duties of the Parkways Authority. The Parkways Authority shall meet at least monthly and either the ~~chairman~~ chair or any four members shall be empowered to call special meetings for any purpose ~~or purposes~~: Provided, That notice of any ~~such~~ meeting shall be given to all members of the Parkways Authority not less than ten days prior to said special meetings.
(e) Before the issuance of any parkway revenue bonds or revenue refunding bonds under the provisions of this article, each appointed member of the Parkways Authority shall execute a surety bond in the penal sum of twenty-five thousand dollars and the secretary and treasurer shall execute a surety bond in the penal sum of fifty thousand dollars, each ~~such~~ surety bond to be conditioned upon the faithful performance of the duties of his or her office, to be executed by a surety company authorized to transact business in ~~the state of~~ West Virginia as surety and to be approved by the Governor and filed in the Office of the Secretary of State.
(f) The members of the Parkways Authority shall not be entitled to compensation for their services, but ~~each member shall be reimbursed for his or her actual expenses necessarily incurred in the performance of his or her duties~~ shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.
(g) All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under the authority of this article and no liability or obligation shall be incurred by the Parkways Authority ~~hereunder~~ beyond the extent to which moneys shall have been provided under the authority of this article.
(h) Pursuant to the provisions of article ten, chapter four of this code, the West Virginia Parkways, Economic Development and Tourism Authority shall continue to exist until the first day of July, two thousand ~~five~~ seven.
§17-16A-10. Parkway revenue bonds generally.
(a) The Parkways Authority is ~~hereby~~ authorized to provide by resolution~~, at one time or from time to time,~~ for the issuance of parkway revenue bonds of the state for the purpose of paying all or any part of the cost of one or more projects: Provided, That this section shall not be construed as authorizing the issuance of parkway revenue bonds for the purpose of paying the cost of the West Virginia Turnpike, which parkway revenue bonds may be issued only as authorized under section eleven of this article. The principal of and the interest on ~~such~~ bonds shall be payable solely from the funds ~~herein~~ provided for ~~such~~ payment.
(b) The bonds of each issue shall be dated, shall bear interest at ~~such~~ a rate ~~or rates~~ as may be determined by the Parkways Authority in its sole discretion, shall mature at ~~such~~ a time ~~or times~~ not exceeding forty years from their date or ~~dates,~~ of issue as may be determined by the Parkways Authority, and may be made redeemable before maturity, at the option of the Parkways Authority, at ~~such~~ a price ~~or prices~~ and under ~~such~~ the terms and conditions as may be fixed by the Parkways Authority prior to the issuance of the bonds.
(c) The Parkways Authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination ~~or denominations~~ of the bonds and the place ~~or places~~ of payment of principal and interest, which may be at any bank or trust company within or without the state.
(d) The bonds shall be executed by manual or facsimile signature ~~by the governor and~~ by the ~~chairman~~ chair of the Parkways Authority, and the official seal of the Parkways Authority shall be affixed to or printed on each bond, and attested, manually or by facsimile signature, by the secretary and treasurer of the Parkways Authority~~, and any~~ . Any coupons attached to any bond shall bear the manual or facsimile signature of the ~~chairman~~ chair of the Parkways Authority.
(e) In case any officer whose signature or a facsimile of whose signature appears on any bonds or coupons shall cease to be ~~such~~ an officer before the delivery of ~~such~~ the bonds, ~~such~~ the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until ~~such~~ delivery~~; and, in~~ . In case the seal of the Parkways Authority has been changed after a facsimile has been imprinted on ~~such~~ the bonds, ~~such~~ then the facsimile seal will continue to be sufficient for all purposes.
(f) All bonds issued under the provisions of this article shall have ~~and are hereby declared to have~~ all the qualities and incidents of negotiable instruments under the negotiable instruments law of the state. The bonds may be issued in coupon or in registered form, or both, as the Parkways Authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the recorders into coupon bonds of any bonds registered as to both principal and interest.
(g) The Parkways Authority may sell ~~such~~ the bonds ~~in such manner, either~~ at a public or at private sale~~, and~~ ~~for such~~ at a price~~, as~~ it ~~may determine~~ determines to be in the best interests of the state.
(h) The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the parkway project or projects for which ~~such~~ the bonds ~~shall have been~~ were issued, and shall be disbursed in ~~such~~ a manner ~~and under such restrictions, if any, as the Parkways Authority may provide in~~ consistent with the resolution authorizing the issuance of ~~such~~ the bonds or in the trust agreement ~~hereinafter mentioned~~ securing the ~~same~~ bonds.
(i) If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than ~~such~~ the cost, then additional bonds may in like manner be issued to provide the amount of ~~such~~ the deficit.~~, and, unless~~ Unless otherwise provided in the resolution authorizing the issuance of ~~such~~ the bonds or in the trust agreement securing the ~~same~~ bonds, the additional bonds shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued.
(j) If the proceeds of the bonds of any issue ~~shall~~ exceed the cost of the project or projects for which the ~~same shall have been~~ bonds were issued, then the surplus shall be deposited to the credit of the sinking fund for ~~such~~ the bonds.
(k) Prior to the preparation of definitive bonds, the Parkways Authority may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when ~~such~~ the bonds ~~shall~~ have been executed and are available for delivery. The Parkways Authority may also provide for the replacement of any bonds ~~which shall~~ that become mutilated or ~~shall be~~ are destroyed or lost.
(l) Bonds may be issued under the provisions of this article without obtaining the consent of any department, division, commission, board, bureau or agency of the state~~, and without any other proceedings or the happening of any other conditions or things than those proceedings, conditions or things which are specifically required by~~ in accordance with this article.
CHAPTER 49. CHILD WELFARE.
ARTICLE 9. MISSING CHILDREN INFORMATION ACT.

§49-9-15. Clearinghouse Advisory Council; members, appointments and expenses; appointment, duties and compensation of director.

(a) ~~There is hereby created a~~ The Clearinghouse Advisory Council~~, which~~ is continued as a body corporate and politic, constituting a public corporation and government instrumentality. The Council shall consist of eleven members, who are knowledgeable about and interested in issues relating to missing or exploited children, as follows:
(1) ~~Four~~ Six members to be appointed by the Governor, with the advice and consent of the Senate, with not more than ~~two~~ four belonging to the same political party, three being from different congressional districts of the state and, as nearly as possible, providing broad state geographical distribution of members of the Council, and at least one representing a nonprofit organization involved with preventing the abduction, runaway or exploitation of children or locating missing children;
(2) One person to be appointed by the governor, with the advice and consent of the Senate, from a list of two persons recommended by the speaker of the House of Delegates;
(3) One member to be appointed by the governor, with the advice and consent of the Senate, from a list of two persons recommended by the president of the Senate;
~~(4)~~ (2) The Secretary of the Department of Health and Human Resources or his or her designee;
~~(5)~~ (3) The Superintendent of the West Virginia State Police or his or her designee;
~~(6)~~ (4) The State Superintendent of Schools or his or her designee;
~~(7)~~ (5) The Director of the Criminal Justice and Highway Safety Division or his or her designee; and
~~(8)~~ (6) The Executive Director of the Governor's Cabinet on Children and Families.
(b) ~~Not later than the first day of June, one thousand nine hundred ninety-seven, the~~ The Governor shall appoint the six ~~appointed~~ Council members for staggered terms. The terms of the ~~board~~ members first taking office on or after the effective date of this legislation shall expire as designated by the Governor. ~~at the time of their appointment, one at the end of the year, two at the end of the second year, and two at the end of the third year. As the original appointments expire, each~~ Each subsequent appointment shall be for a full three-year term. Any appointed member whose term is expired shall serve until a successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. A member is eligible for only one successive reappointment. ~~In cases of any vacancy in the office of a member, such~~ A vacancy shall be filled by the Governor in the same manner as the original appointment was made.
(c) Members of the Council are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(d) A majority of serving members constitutes a quorum for the purpose of conducting business. The chair of the Council shall be designated by the Governor from among the appointed Council members who represent nonprofit organizations involved with preventing the abduction, runaway or exploitation of children or locating missing children. The term of the ~~chairman~~ chair shall run concurrently with his or her term of office as a member of the Council. The Council shall conduct all meetings in accordance with the open governmental meetings law pursuant to article nine-a, chapter six of this code.
~~(d)~~ (e) The employee of the West Virginia State Police who is primarily responsible for the clearinghouse established by section three of this article shall serve as the Executive Director of the Council. He or she shall receive no additional compensation for service as the Executive Director of the Council but shall be reimbursed for any reasonable and necessary expenses actually incurred in the performance of his or her duties as Executive Director in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration .
~~(e)~~ (f) The expenses of ~~the~~ Council members and the Executive Director shall be reimbursed from funds provided by foundation grants, in-kind contributions or funds obtained pursuant to subsection (b), section seventeen of this article.
~~(f)~~ (g) The Executive Director shall provide or obtain information necessary to support the administrative work of the Council and, to that end, may contract with one or more nonprofit organizations or state agencies for research and administrative support.
(h) The Executive Director of the Council shall be available to the Governor and to the Speaker of the House of Delegates and the President of the Senate to analyze and comment upon proposed legislation and rules which relate to or materially affect missing or exploited children.
~~(g)~~ (i) The Council shall prepare and publish an annual report of its activities and accomplishments and submit it to the Governor and to the ~~Legislature's~~ Joint Committee on Government and Finance on or before the fifteenth day of December of each year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2891-"A Bill to repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; to amend and reenact §5A-7-4 of said code; to amend and reenact §5A-8-15 of said code; to amend and reenact §5B-1-2 of said code; to amend and reenact §5B-3-4 and §5B-3-5 of said code; to amend and reenact §5F-2-1 and §5F-2-2 of said code; to amend and reenact §10-5-2 of said code; to amend said code by adding thereto a new section, designated §10-5-5a; to amend and reenact §11-10A-6 and §11-10A-7 of said code; to amend and reenact §17-16A-3 and §17-16A-10 of said code; to amend and reenact §21A-1-4 of said code; and to amend and reenact §49-9-15 of said code, all relating to the reorganization of the executive branch of state government; transferring the Office of Technology from the Office of the Governor to the Department of Administration; providing that the Director of Information Services and Communications Division shall report to the Chief Technology Officer; providing that the Director of Information Services and Communications Division shall develop and maintain an information systems disaster recovery system; modifying membership of the Records Management and Preservation Board to include a county sheriff and a county assessor; limiting the time period for department secretaries to transfer funds within their respective departments; requiring secretaries of departments to cooperate with the Office of the Pharmaceutical Advocate in purchasing prescription drugs; transferring the Bureau of Employment Programs to the Department of Commerce; modifying membership of the Educational Broadcasting Authority; providing for Governor to chair the Educational Broadcasting Authority ; authorizing the Governor to appoint an Executive Director of the Educational Broadcasting Authority and set salary annually; creating an Advisory Committee on Journalistic and Editorial Integrity for the Educational Broadcasting Authority; modifying the term of the chief administrative law judge of the Office of Tax Appeals; providing that the Governor has the authority to appoint two administrative law judges to the Office of Tax Appeals; providing for Governor to chair the West Virginia Parkways, Economic Development and Tourism Authority; authorizing the Governor to appoint an Executive Director of the Virginia Parkways, Economic Development and Tourism Authority and set salary annually; modifying membership of the Missing Children Information Clearinghouse; and making technical corrections."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with amendment, as follows:
On page one, by amending the enacting section to read as follows:
"That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended and reenacted; that §5A-8-15 of said code be amended and reenacted; that §5B-1-2 of said code be amended and reenacted; that §5B-3-4 and §5B- 3-5 of said code be amended and reenacted; that §5F-2-1 and §5F-2-2 of said code be amended and reenacted; that §10-5-2 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §10-5-5a; that §11-10A-6 and §11-10A-7 of said code be amended and reenacted; that §17-16A-3 and §17-16A-10 of said code be amended and reenacted; and that §49-9-15 of said code be amended and reenacted, all to read as follows" and a colon.
Beginning on page twenty-four, §5F-2-1, by striking out all of subsection (f) and inserting in lieu thereof the following:
"~~(g)~~ (f) ~~Bureau of environment is abolished and the~~ The following agencies and boards, including all of the allied, advisory and affiliated entities, are transferred to the department of environmental protection for purposes of administrative support and liaison with the office of the governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of this code."
On page thirty-eight, subsection (b), line fourteen, at the beginning of the subsection, by inserting the words "As of the effective date of the reenactment of this section during the Regular Session of 2005,".
On page thirty-eight, subsection (b), line fourteen, after the word "chair", by striking out the period and inserting in lieu thereof a comma and the words "for a term not to exceed four years unless extended by act of the Legislature. Thereafter the Authority shall select the chair.".
On page thirty-eight, subsection (c), beginning on line eighteen, by striking out said subsection (c) in its entirety and inserting in lieu thereof the following:
"(c) As of the effective date of the reenactment of this section during the Regular Session of 2005, the Governor shall appoint an Executive Director, at a salary fixed by the Governor, to serve for a term not to exceed four years unless extended by act of the Legislature. Thereafter the Authority shall appoint the Executive Director and fix his or her salary. The Executive Director is responsible for managing and administering the daily functions of the Authority and for performing all other functions necessary to the effective operation of the Authority. The Authority is authorized to establish ~~such office or~~ offices ~~as may be necessary~~ for the proper performance of its duties."
And,
By amending the title of the bill to read as follows:
H. B. 2891-"A Bill to repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5- 1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; to amend and reenact §5A-7-4 of said code; to amend and reenact §5A-8-15 of said code; to amend and reenact §5B-1-2 of said code; to amend and reenact §5B-3-4 and §5B-3-5 of said code; to amend and reenact §5F-2-1 and §5F-2-2 of said code; to amend and reenact §10-5-2; to amend said code by adding thereto a new section, designated §10-5-5a; to amend and reenact §11- 10A-6 and §11-10A-7 of said code; to amend and reenact §17-16A-3 and §17-16A-10 of said code; and to amend and reenact §49-9-15 of said code, all relating to the reorganization of the executive branch of state government; transferring the Office of Technology from the Office of the Governor to the Department of Administration; providing that the Director of Information Services and Communications Division shall report to the Chief Technology Officer; providing that the Director of Information Services and Communications Division shall develop and maintain an information systems disaster recovery system; modifying membership of the Records Management and Preservation Board to include a county sheriff and a county assessor; limiting the time period for department secretaries to transfer funds within their respective departments; requiring secretaries of departments to cooperate with the Office of the Pharmaceutical Advocate in purchasing prescription drugs; transferring the Bureau of Employment Programs to the Department of Commerce; providing that the Governor will chair the Educational Broadcasting Authority for a limited term; providing that the Governor will appoint to Executive Director of the Educational Broadcasting Authority to serve for a limited term; modifying the term of the chief administrative law judge of the Office of Tax Appeals; providing that the Governor has the authority to appoint two administrative law judges to the Office of Tax Appeals; providing for Governor to chair the West Virginia Parkways, Economic Development and Tourism Authority; authorizing the Governor to appoint an Executive Director of the Virginia Parkways, Economic Development and Tourism Authority and set salary annually; modifying membership of the Missing Children Information Clearinghouse; and making technical corrections."
On the adoption of the amendment, Delegate Varner demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 677), and there were--yeas 69, nays 31, absent and not voting none, with the nays being as follows:
Nays: Argento, Ashley, Barker, Brown, DeLong, Doyle, Eldridge, Frich, Hatfield, Hrutkay, Hunt, Iaquinta, Leggett, Martin, Miley, Perdue, Poling, Rowan, Sobonya, Spencer, Stephens, Stevens, Susman, Tabb, Talbott, Thompson, Rick, Walters, Webster, Wells, Wysong and Yost.
So, a majority of the members present and voting having voted in the affirmative, the amendment to the Senate amendment was adopted.
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 678), and there were--yeas 85, nays 15, absent and not voting none, with the nays being as follows:
Nays: Barker, Brown, Doyle, Eldridge, Frich, Hatfield, Hrutkay, Hunt, Miley, Palumbo, Sobonya, Spencer, Susman, Walters and Wells.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2891) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 679), and there were--yeas 92, nays 8, absent and not voting none, with the nays being as follows:
Nays: Barker, Brown, Frich, Hatfield, Hrutkay, Susman, Walters and Wells.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2891) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2984, Discontinuing the loan program participation of teachers and nonteachers who become members of the Teachers Retirement System on or after July 1, 2005.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page ten, by striking everything after the enacting clause and inserting in lieu thereof the following:
"That §5-5-3 of the Code of West Virginia, 1931, as amended be amended and reenacted; that §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and §5-10-44 of said code be amended and reenacted; that said code be further amended by adding thereto a new section, designated §5-10-22h; that §5-10A-2 and §5-10A-3 of said code be amended and reenacted; that said code be further amended by adding thereto a new section, designated §5- 10A-11; that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code be amended and reenacted; that §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code be amended and reenacted; that said code be further amended by adding thereto a new section §12-8-15; that §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of said code be amended and reenacted; that said code be further amended and reenacted by adding thereto four new section, designated §15-2-25b, §15-2-31a, §15-2- 31b and §15-2-39a; that §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A- 10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 be amended and reenacted; that said code be further amended by adding thereto four new sections designated §15-2A-11a, §15-2A- 11b, §15-2A-21 and §15-2A-22; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code be amended and reenacted; that said code be further amended by adding thereto three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40; that §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of code be amended and reenacted; that said code be further amended and reenacted by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; that said code be further amended by adding thereto a new article containing §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18- 7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and that said code be further amended by adding thereto a new section designated §51-9-6c, 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 5. SALARY INCREASE FOR STATE EMPLOYEES.

§5-5-3. Optional payment to employee in lump sum amount for accrued and unused leave at termination of employment; no withholding of any employee contribution deduction; exception.

Every eligible employee, as defined in section one of this article, at the time his or her active employment ends due to resignation, death, retirement or otherwise, may be paid in a lump sum amount, at his or her option, for accrued and unused annual leave at the employee's usual rate of pay at ~~such~~ the time. The lump sum payment shall be made by the time of what would have been the employee's next regular payday had his or her employment continued. In determining the amount of ~~annual~~ leave entitlement, weekends, holidays or other periods of normal, noncountable time shall be excluded, and no deductions may be made for contributions toward retirement from lump sum payments for unused, accrued ~~annual~~ leave of any kind or character, since no period of service credit is granted in relation thereto; however, ~~such~~ lump sum payment for unused, accrued leave of any kind or character may not be a part of final average salary computation; and where any ~~such~~ deduction of employee contribution may have been ~~heretofore~~ made previously, a refund of ~~such~~ the amount deducted shall be granted the former employee and made by the head of the respective former employer spending unit: Provided, That the Superintendent of the ~~department of public safety~~ West Virginia State Police shall make deductions for retirement contributions of members of the ~~department~~ State Police Death, Disability and Retirement Fund created and continued in section twenty-six, article two, chapter fifteen of this code since retirement benefits are based on cumulative earnings rather than period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the context, the following words and phrases as used in this article, have the following meanings:
~~(1) 'State' means the state of West Virginia;~~
~~(2) 'Retirement system' or 'system' means the West Virginia public employees retirement system created and established by this article;~~
~~(3) 'Board of trustees' or 'board' means the board of trustees of the West Virginia public employees retirement system;~~
(4) 'Political subdivision' means the state of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose ~~jurisdiction is coextensive with one or more counties, cities or towns:~~ ~~Provided,~~ That any mental health agency participating in the public employees retirement system before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety- seven: ~~Provided, however,~~ That the regional community policing institute which participated in the public employees retirement system before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue ~~to participate in the public employees retirement system after the first day of July, two thousand;~~
(5) 'Participating public employer' means the state of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the supreme court of appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia public employees retirement system;
(6) 'Employee' means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in whole or in part, is paid by the federal government: ~~Provided,~~ That members of the Legislature, the clerk of the House of Delegates, the clerk of the Senate, employees of the Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who have been or are employed during regular sessions or during the interim between regular sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, members of the legislative body of any political subdivision and judges of the state court of claims are considered to be employees, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
~~(7) 'Member' means any person who is included in the membership of the retirement system;~~
~~(8) 'Retirant' means any member who retires with an annuity payable by the retirement system;~~
~~(9) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;~~
~~(10) 'Service' means personal service rendered to a participating public employer by an employee, as defined in this article, of a participating public employer;~~
~~(11) 'Prior service' means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;~~
(12) 'Contributing service' means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article. This revised definition is retroactive and applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
~~(13) 'Credited service' means the sum of a member's prior service credit and contributing service credit standing to his or her credit as provided in this article;~~
(14) 'Limited credited service' means service by employees of the West Virginia educational broadcasting authority, in the employment of West Virginia university, during a period when the employee made contributions to another retirement system, as required by West Virginia university, and did not make contributions to the public employees retirement system: ~~Provided,~~ That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty-two of this article;
(15) 'Compensation' means the remuneration paid a member by a participating public employer for personal services rendered by him or her to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of his or her remuneration which is not paid in money;
~~(16) 'Final average salary' means either:~~
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter) during any period of three consecutive years of his or her credited service contained within his or her ten years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If he or she has less than five years of credited service, the average of the annual rate of compensation received by him or her during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code) in the year one thousand nine hundred seventy-one or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the state of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used: ~~Provided,~~ That 'final average salary' for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the state of West Virginia; or (ii) 'final average salary' determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision ~~immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);~~
(17) 'Accumulated contributions' means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
~~(18) 'Regular interest' means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts from time to time;~~
(19) 'Annuity' means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, using the upper cent for any fraction of a cent;
~~(20) 'Annuity reserve' means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables~~ ~~of experience, and regular interest, adopted by the board of trustees from time to time;~~
~~(21) 'Retirement' means a member's withdrawal from the employ of a participating public employer with an annuity payable by the retirement system;~~
~~(22) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time;~~
~~(23) 'Retroactive service' means: (1) Service an employee was entitled to, but which the employer has not withheld d to prior service at no cost in accordance with 162 CSR 5.16;~~
~~(24) 'Required beginning date' means the first day of April of the calendar year following the later of: (A) The calendar year in~~ ~~which the member attains age seventy and one-half; or (B) the calendar year in which the member ceases providing service covered under this system to a participating employer;~~
~~(25) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been amended; and~~
~~(26) 'Plan year' means the same as referenced in section forty-two of this article.~~
(1) 'Accumulated contributions' means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(2) 'Accumulated net benefit' means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time;
(4) 'Annuity' means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, rounding to the upper cent for any fraction of a cent;
(5) 'Annuity reserve' means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the Board of Trustees from time to time;
(6) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(7) 'Board of Trustees' or 'Board' means the Board of Trustees of the West Virginia Consolidated Public Retirement System;
(8) 'Compensation' means the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of the remuneration which is not paid in money;
(9) 'Contributing service' means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article;
(10) 'Credited service' means the sum of a member's prior service credit, military service credit, workers' compensation service credit and contributing service credit standing to his or her credit as provided in this article;
(11) 'Employee' means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia National Guard whose compensation, in whole or in part, is paid by the federal government: Provided, That an employee of the Legislature whose term of employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is employed during regular sessions or during the interim between regular sessions in seven or more consecutive calendar years, as certified by the Clerk of the House in which the employee served, is an employee, any provision to the contrary in this article notwithstanding, and is entitled to credited service in accordance with provisions of section fourteen, article ten, chapter five of this code, and: Provided further, That members of the legislative body of any political subdivision and judges of the State Court of Claims are employees receiving one year of service credit for each one year term served and pro rated service credit for any partial term served, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
(12) 'Employer error' means an omission, misrepresentation, or violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public employer does not constitute employer error.
(13) 'Final average salary' means either:
(A) The average of the highest annual compensation received by a member, (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter), during any period of three consecutive years of credited service contained within the member's ten years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited service, the average of the annual rate of compensation received by the member during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one, or in any year thereafter, his or her actual legislative compensation, (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code), in the year one thousand nine hundred seventy-one, or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the State of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used: Provided, That 'final average salary' for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one, who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the State of West Virginia; or (ii) 'final average salary' determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(14) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended, codified at Title 26 of the United States Code;
(15) 'Limited credited service' means service by employees of the West Virginia Educational Broadcasting Authority, in the employment of West Virginia University, during a period when the employee made contributions to another retirement system, as required by West Virginia University, and did not make contributions to the Public Employees Retirement System: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty-two of this article;
(16) 'Member' means any person who has accumulated contributions standing to his or her credit in the members' deposit fund;
(17) 'Participating public employer' means the State of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the Supreme Court of Appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia Public Employees Retirement System;
(18) 'Plan year' means the same as referenced in section forty-two of this article;
(19) 'Political subdivision' means the State of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the Public Employees Retirement System before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety- seven: Provided, however, That the Regional Community Policing Institute which participated in the Public Employees Retirement System before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the Public Employees Retirement System after the first day of July, two thousand;
(20) 'Prior service' means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
(21) 'Regular interest' means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts from time to time;
(22) 'Required beginning date' means the first day of April of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half years of age; or (B) the calendar year in which a member who has attained the age seventy and one-half years of age and who ceases providing service covered under this system to a participating employer;
(23) 'Retirant' means any member who commences an annuity payable by the retirement system;
(24) 'Retirement' means a member's withdrawal from the employ of a participating public employer and the commencement of an annuity by the retirement system;
(25) 'Retirement system' or 'system' means the West Virginia Public Employees Retirement System created and established by this article;
(26) 'Retroactive service' means: (1) Service between the first day of July, one thousand nine hundred sixty-one, and the date an employer decides to become a participating member of the Public Employees Retirement System; (2) service prior to the first day of July, one thousand nine hundred sixty-one, for which the employee is not entitled to prior service at no cost in accordance with 162 CSR 5.13; and (3) service of any member of a legislative body or employees of the State Legislature whose term of employment is otherwise classified as temporary for which the employee is eligible, but for which the employee did not elect to participate at that time;
(27) 'Service' means personal service rendered to a participating public employer by an employee of a participating public employer; and
(28) 'State' means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this state who have served in the Armed Forces of the United States during times of war, conflict and danger. It is the intent of this section to confer military service credit upon persons who are eligible at any time for public employees retirement benefits for any time served in active duty in the Armed Forces of the United States when the duty was during any period of compulsory military service or during a period of armed conflict, as defined in this section.
(2) In addition to any benefit provided by federal law, any member of the retirement system who has previously served in or enters the active service of the Armed Forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive credited service for the time spent in the Armed Forces of the United States, not to exceed five years if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence his or her active military service and entry into military service during any period of compulsory military service or during periods of armed conflict.
(3) Any member of the retirement system who enters the active service of the Armed Forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive the credit provided by this section regardless of whether he or she was a public employee at the time of entering the military service.
(4) If a member of the Public Employees Retirement System enters the active service of the United States and serves during any period of compulsory military service or during any period of armed conflict, during the period of the armed service and until the member's return to the employ of a participating public employer, the member's contributions to the retirement system is suspended and any credit balance remaining in the member's deposit fund shall be accumulated at regular interest.
(5) No member may receive duplicate credit for service for a period of compulsory military service which falls under a period of armed conflict.
(6) In any case of doubt as to the period of service to be credited a member under the provisions of this section, the board of trustees have final power to determine the period.
(7) The Board ~~is empowered to~~ may consider a petition by any member whose tour of duty, in a territory that would reasonably be considered hostile and dangerous, was extended beyond the period in which an armed conflict was officially recognized, if that tour of duty commenced during a period of armed conflict, and the member was assigned to duty stations within the hostile territory throughout the period for which service credit is being sought. The Board has the authority to evaluate the facts and circumstances peculiar to the petition, and rule on whether granting service credit for the extended tour of duty is consistent with the objectives of this article. In that determination, the Board ~~is empowered to~~ may grant full credit for the period under petition subject to the limitations otherwise applicable, or to grant credit for any part of the period as the board considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to administer the provisions of this section.
(b) For purposes of this section, the following definitions apply:
(1) 'Period of armed conflict' means the Spanish-American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War and any other period of armed conflict by the United States, including, but not limited to, those periods sanctioned by a declaration of war by the United States Congress or by executive or other order of the President.
(2) 'Spanish-American War' means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fourth day of July, one thousand nine hundred two, and includes the Philippine Insurrection, the Boxer Rebellion, and in the case of a veteran who served with the United States military forces engaged in hostilities in the Moro Province, means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fifteenth day of July, one thousand nine hundred three.
(3) 'The Mexican border period' means the period beginning on the ninth day of May, one thousand nine hundred sixteen, and ending on the fifth day of April, one thousand nine hundred seventeen, in the case of a veteran who during the period served in Mexico, on its borders or in the waters adjacent to it.
(4) 'World War I' means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the eleventh day of November, one thousand nine hundred eighteen, and in the case of a veteran who served with the United States military forces in Russia, means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the first day of April, one thousand nine hundred twenty.
(5) 'World War II' means the period beginning on the seventh day of December, one thousand nine hundred forty-one, and ending on the thirty-first day of December, one thousand nine hundred forty-six.
(6) 'Korean conflict' means the period beginning on the twenty-seventh day of June, one thousand nine hundred fifty, and ending on the thirty-first day of January, one thousand nine hundred fifty-five.
(7) 'The Vietnam era' means the period beginning on the twenty-eighth day of February, one thousand nine hundred sixty-one, and ending on the seventh day of May, one thousand nine hundred seventy-five, in the case of a veteran who served in the Republic of Vietnam during that period; and the fifth day of August, one thousand nine hundred sixty-four, and ending on the seventh day of May, one thousand nine hundred seventy-five, in all other cases.
(8) 'Persian Gulf War' means the period beginning on the second day of August, one thousand nine hundred ninety, and ending on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, 'qualified military service' has the same meaning as in Section 414(u) of the Internal Revenue Code. No military service credit may be used in more than one retirement system administered by the Consolidated Public Retirement Board and once used in any system, may not be used again in any other system. The ~~retiremen~~t Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the ~~retirement~~ Board in section one, article ten-d of this chapter, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the following persons:
(a) All employees, as defined in section two of this article, who are in the employ of a political subdivision the day preceding the date it becomes a participating public employer and who continue in the employ of the participating public employer on and after that date shall become members of the retirement system; and all persons who become employees of a participating public employer on or after that date shall thereupon become members of the system; except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System shall not include any person who is a an active contributing member of, or who has been retired by, any of the State Teachers retirement systems, the Judges Retirement System, ~~the~~ any Retirement System of the ~~Division of Public Safety~~ West Virginia State Police, the Deputy Sheriff Retirement System or any municipal retirement system for either, or both, ~~policemen~~ police or ~~firemen~~ firefighter; and the Bureau of Employment Programs, by the Commissioner of the Bureau, may elect whether its employees will accept coverage under this article or be covered under the authorization of a separate enactment: Provided, That the exclusions of membership ~~shall~~ do not apply to any member of the State Legislature, the Clerk of the House of Delegates, the Clerk of the State Senate or to any member of the legislative body of any political subdivision provided he or she once becomes a contributing member of the retirement system: Provided, however, That any retired member of ~~the retirement system of~~ the ~~division of public safety~~ State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, ~~policemen~~ police or ~~firemen~~ firefighter may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal ~~policeman~~ police officer or ~~fireman~~ firefighter or as a member of the ~~division of public safety~~ State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System or of the Deputy Sheriff Retirement System: Provided further, That any retired member of the State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, police or firefighters, who begins participation in the retirement system established in this article on or after the first day of July, two thousand five, may not receive a combined retirement benefit in excess of one hundred five percent of the member's highest annual salary earned while either a member of the retirement system established in this article or while a member of the other retirement system or systems from which he or she previously retired when adding the retirement benefit from the retirement system created in this article to the retirement benefit received by that member from the other retirement system or systems set forth herein from which he or she previously retired: And provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services or Eastern Panhandle Mental Health Center on or after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement system does not include any person who becomes a member of the federal railroad retirement act on or after the first day of July, two thousand.
(c) Any member of the State Legislature, the Clerk of the House of Delegates, the Clerk of the State Senate and any employee of the State Legislature whose employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is so employed during regular sessions or during the interim between sessions in seven consecutive calendar years, as certified by the Clerk of the House in which the employee served, or any member of the legislative body of any other political subdivision shall become a member of the retirement system provided he or she notifies the retirement system in writing of his or her intention to be a member of the system and files a membership enrollment form as prescribed by the Board of Trustees, and each person, upon filing his or her written notice to participate in the retirement system, shall by that act authorize the Clerk of the House of Delegates or the Clerk of the State Senate or such person or legislative agency as the legislative body of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded to the retirement system.
(d) If question arises regarding the membership status of any employee, the Board of Trustees has the final power to decide the question.
(e) Any individual who is a leased employee