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sdj-59th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

FIFTY-NINTH DAY

____________

Charleston, W. Va., Friday, April 10, 2009

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

Prayer was offered by the Reverend Don Gatewood, Associate Pastor, Forrest Burdette Memorial United Methodist Church, Hurricane, West Virginia.
Pending the reading of the Journal of Thursday, April 9, 2009,
On motion of Senator Yost, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 172, Authorizing Department of Administration promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page eight, section three, line twenty-one, after the word "authorized" by changing the period to a comma and inserting the following: with the following amendment:
On page three, subsection 3.3.1, line twenty-one, following the period after the words "receipt of request", by inserting the words "If the spending unit does not have copies of the most recent solicitation and contract for the service or commodity, the spending unit shall authorize the Purchasing Division to release to the CNA that information, if available, within ten (10) working days of receipt of request by the CNA.";
And,
On page seven, subsection 5.1.5, line twenty-two, following the period after the words "receipt of the proposed price", by striking out the remainder of the sentence.;
On page ten, section four, line twenty, by striking out the word "repealed" and inserting in lieu thereof the word "authorized";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 172--A Bill to reenact §64- 1-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rule with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; repealing certain legislative rule; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to general provisions; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Teachers Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Public Employees Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to refund, reinstatement, retroactive service and loan interest factors; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to service credit for accrued and unused sick and annual leave; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the West Virginia State Police; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Deputy Sheriff Retirement System; authorizing the Division of Personnel to promulgate a legislative rule relating to reimbursement of compensation paid to state employees for training, education and professional development; authorizing the Department of Administration to promulgate a legislative rule relating to the Purchasing Division; authorizing the Department of Administration to promulgate a legislative rule relating to fair market price determination; authorizing the Department of Administration to promulgate a legislative rule relating to statewide contracts; authorizing the Department of Administration to promulgate a legislative rule relating to qualifications for participation; authorizing the Department of Administration to promulgate a legislative rule relating to parking; authorizing the Ethics Commission to promulgate a legislative rule relating to the purchase, sale or lease of personal property; authorizing the Ethics Commission to promulgate a legislative rule relating to interest in public contracts; authorizing the Ethics Commission to repeal a legislative rule relating to voting; authorizing the Ethics Commission to promulgate a legislative rule relating to employment exemptions; authorizing the Ethics Commission to promulgate a legislative rule relating to lobbying; and authorizing the Ethics Commission to promulgate a legislative rule relating to the filing of verified time records.
On motion of Senator Kessler, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk and adopted:
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 172--A Bill to reenact §64- 1-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rule with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rule with various modifications presented to and recommended by the Legislative Rule- Making Review Committee and as amended by the Legislature; repealing certain legislative rule; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to general provisions; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Teachers Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Public Employees Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to refund, reinstatement, retroactive service and loan interest factors; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to service credit for accrued and unused sick and annual leave; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the West Virginia State Police; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Deputy Sheriff Retirement System; authorizing the Division of Personnel to promulgate a legislative rule relating to reimbursement of compensation paid to state employees for training, education and professional development; authorizing the Department of Administration to promulgate a legislative rule relating to the Purchasing Division; authorizing the Department of Administration to promulgate a legislative rule relating to fair market price determination; authorizing the Department of Administration to promulgate a legislative rule relating to statewide contracts; authorizing the Department of Administration to promulgate a legislative rule relating to qualifications for participation; authorizing the Department of Administration to promulgate a legislative rule relating to parking; authorizing the Ethics Commission to promulgate a legislative rule relating to the purchase, sale or lease of personal property; authorizing the Ethics Commission to promulgate a legislative rule relating to interest in public contracts; authorizing the Ethics Commission to repeal a legislative rule relating to voting; authorizing the Ethics Commission to promulgate a legislative rule relating to employment exemptions; authorizing the Ethics Commission to promulgate a legislative rule relating to lobbying; and authorizing the Ethics Commission to promulgate a legislative rule relating to the filing of verified time records.
On motion of Senator Kessler, the Senate concurred in the House of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 172, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 172) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 172) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Plymale, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 195, Authorizing Department of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 244, Relating to public employees' reemployment after retirement.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 262, Removing prohibition against using county's General Revenue Fund for historic preservation.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 335, Authorizing Division of Culture and History distribute fairs and festivals' funding.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-11. Power to accept and receive funds; power to apply for grants; disbursal of funds; restrictions on expenditure; disposition of funds heretofore received or appropriated.

(a) The division may, in the name of the State of West Virginia, through the commissioner or its commissions, accept and receive grants, appropriations, gifts, bequests and funds from any public or private source for the purpose of carrying out the duties and purposes of this article.
(b) The division may, through the commissioner or its commissions, apply for grants from the federal government, private foundations and any other source for the purposes of this article.
(c) All funds received from any source shall be paid into the Treasury of the state and disbursed upon warrant by the State Auditor following requisition by the division. Such The requisitions shall be signed by the commissioner or by such other another person as the commissioner may authorize by written document deposited with the auditor or, in the event of emergency, by the Governor or the Governor's designee.
(d) No funds or gifts received from any source shall be expended or used for any purpose other than that intended as evidenced by a positive and affirmative declaration or by a negative restriction or limitation.
(e) The division may assist in the promotion and operation of an annual state fair and other regional or local fairs and festivals entitled to aid when funds are available and to expend those funds for the support and development of fairs and festivals.
(f) All federal or state funds received to provide grants-in-aid or awards to further the purposes of this article shall be approved and distributed by the appropriate commission established by this article.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 335, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 335) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 335) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2009, of
Eng. Senate Bill No. 338, Creating additional seventeenth judicial circuit court judge.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 382, Adjusting State Rail Authority's contract authority.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 382--A Bill to amend and reenact §29-18-6 of the Code of West Virginia, 1931, as amended, relating to the amount of expenditure for rolling stock; and granting additional authority regarding the Maryland Area Regional Commuter.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 382, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 382) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 408, Relating to model health plan for uninsurable individuals.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 434, Relating to long-term care policy insurance agents.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page five, section eight-a, line seventy, by striking out the words "if the commissioner determines that the other states' requirements are substantially equivalent to those contained in this section".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 434, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 434) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 434) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 464, Authorizing Public Employees Insurance Agency charge fee for paper transactions.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page one, section twenty-four-a, line one, by striking out the word "nine" and inserting in lieu thereof the word "twenty- four";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 464--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16-24a, relating to authorizing the Public Employees Insurance Agency to establish a fee for paper transactions that could be performed electronically.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 464, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 464) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 501, Prohibiting animal gas chamber euthanasia.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §7-10-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §19-20-8 of said code be amended and reenacted; and that §30-10A-4, §30-10A-6 and §30-10A-8 of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or cruelly treated; hearing; bonds; liability for costs; liens; exclusions.

(a) Subject to the provisions of subsection (h) of this section, a humane officer shall take possession of any animal, including birds or wildlife in captivity, known or believed to be abandoned, neglected, deprived of necessary sustenance, shelter, medical care or reasonable protection from fatal freezing or heat exhaustion or cruelly treated or used as defined in sections nineteen and nineteen-a, article eight, chapter sixty-one of this code.
(b) The owner or persons in possession, if his or her identity and residence are known, of any animal seized pursuant to subsection (a) of this section shall be provided written notice of the seizure, his or her liability for the cost and care of the animal seized as provided in this section and the right to request a hearing in writing before a magistrate in the county where the animal was seized. The magistrate court shall schedule any hearing requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a hearing within five working days of the seizure is prima facie evidence of the abandonment of the animal. At the hearing, if requested, the magistrate shall determine by a preponderance of the evidence if the animal was abandoned, neglected or deprived of necessary sustenance, shelter, medical care or reasonable protection from fatal freezing or heat exhaustion or otherwise treated or used cruelly as set forth in this section.
(c) (1) If a hearing is requested and the magistrate finds by a preponderance of the evidence that the owner did abandon, neglect or cruelly treat the animal, or if no hearing is requested and the magistrate finds by a preponderance of the evidence, based upon the affidavit of the humane officer, that the owner did abandon, neglect or cruelly treat the animal, the magistrate shall enter an order awarding custody of the animal to any humane officer for further disposition in accordance with reasonable practices for the humane treatment of animals. After hearing the evidence, if the magistrate is not convinced the animal was neglected or cruelly treated, he or she may dismiss the action and order the animal be returned to the owner. If the magistrate finds in favor of the humane officer, the owner of the animal shall post a bond with the court in an amount sufficient to provide for the reasonable costs of care, medical treatment and provisions for the animal for at least thirty days. The bond shall be filed with the court within five days following the court's finding against the owner. At the end of the time for which expenses are covered by the original bond if the animal remains in the care of the humane officer and the owner desires to prevent disposition of the animal by the humane officer, the owner shall post an additional bond with the court within five days of the expiration of the original bond. During this period, the humane officer is authorized to place the animal in a safe private home or other safe private setting in lieu of retaining the animal in an animal shelter. The person whose animal is seized is liable for all costs of the care of the seized animal.
(2) If a bond has been posted in accordance with subdivision (1) of this subsection, the custodial animal care agency may draw from the bond the actual reasonable costs incurred by the agency in providing care, medical treatment and provisions to the impounded animal from the date of the initial impoundment to the date of the final disposition of the animal.
(d) Any person whose animal is seized and against whom the magistrate enters a finding pursuant to this section is liable during any period it remains in the possession of the humane officer for the reasonable costs of care, medical treatment and provisions for the animal not covered by the posting of the bond as provided in subdivision (1), subsection (c) of this section. The magistrate shall require the person liable for these costs to post bond to provide for the maintenance of the seized animal. This expense, if any, becomes a lien on the animal and must be discharged before the animal is released to the owner. Upon dismissal or withdrawal of the complaint, any unused portion of posted bonds shall be returned to the owner. Upon a finding in favor of the humane officer, all interest in the impounded animal shall transfer to the humane officer for disposition in accordance with reasonable practices for the humane treatment of animals. Any additional expense above the value of the animal may be recovered by the humane officer or custodial agency.
(e) After the humane officer takes possession of the animal pursuant to a finding by a magistrate that the animal has been abandoned, neglected or cruelly treated and a licensed veterinarian determines that the animal should be humanely destroyed to end its suffering, the veterinarian may order the animal to be humanely destroyed and neither the humane officer, animal euthanasia technician nor the veterinarian is subject to any civil or criminal liability as a result of such the action.
(f) (1) The term "humanely destroyed" as used in this section means:
(1) (A) Humane euthanasia of an animal by hypodermic injection by a licensed veterinarian or by an animal euthanasia technician certified in accordance with the provisions of article ten-a, chapter thirty of this code; or
(2) (B) Any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing an animal by means of a gas chamber: Provided, That any county which has a gas chamber in operation as of the effective date of this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal euthanasia technician certified pursuant to article ten-a, chapter thirty of this code; and (2) the gas chamber shall have been manufactured and installed by a person who regularly manufactures and installs gas chambers. The Board of Veterinary Medicine shall promulgate emergency rules regarding the inspection of gas chambers, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
(g) In case of an emergency in which an animal cannot be humanely destroyed in an expeditious manner, an animal may be destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of firearms with a weapon and ammunition of suitable caliber and other characteristics designed to produce instantaneous death by a single shot; and
(2) Maximum precaution is taken to minimize the animal's suffering and to protect other persons and animals.
(h) The provisions of this section do not apply to farm livestock, as defined in subsection (d), section two, article ten-b, chapter nineteen of this code; poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock; poultry, gaming fowl, wildlife or game farm production and management; nor to the humane use of animals or activities regulated under and in conformity with the provisions of 7 U. S. C. §2131, et seq., and the regulations promulgated thereunder.
(i) All persons or entities in the State performing euthanasia under this article of the code shall register with the Board of Veterinary Medicine by December 31, 2009 in a manner to be perscribed by the board. The Board of Veterinary Medicine shall promulgate emergency rules relating to the registration of those performing animal euthanasia, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
CHAPTER 19. AGRICULTURE.

ARTICLE 20. DOGS AND CATS.
§19-20-8. Impounding and disposition of dogs; costs and fees.

(a) All dogs seized and impounded as provided in this article, except dogs taken into custody under section two of this article, shall be kept housed and fed in the county dog pound or municipal shelter for five days after notice of seizure and impounding has been given or posted as required by this article, at the expiration of which time all dogs which have not previously been redeemed by their owners as provided in this article, shall be sold or humanely destroyed. No dog sold as provided in this section may be discharged from the pound until the dog has been registered and provided with a valid registration tag.
(b) (1) The term "humanely destroyed" as used in this section means:
(1) (A) Humane euthanasia of an animal by hypodermic injection by a licensed veterinarian or by an animal euthanasia technician certified in accordance with the provisions of article ten-a, chapter thirty of this code; or
(2) (B) Any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing a dog or cat by means of a gas chamber: Provided, That any county which has a gas chamber in operation as of the effective date of this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal euthanasia technician certified pursuant to article ten-a, chapter thirty of this code; and (2) the gas chamber shall have been manufactured and installed by a person who regularly manufactures and installs gas chambers. The Board of Veterinary Medicine shall promulgate emergency rules regarding the inspection of gas chambers, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
(c) In an emergency or in a situation in which a dog cannot be humanely destroyed in an expeditious manner, a dog may be destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of firearms with a weapon and ammunition of suitable caliber and other characteristics designed to produce instantaneous death by a single shot; and
(2) Maximum precaution is taken to minimize the dog's suffering and to protect other persons and animals.
(d) The owner, keeper or harborer of any dog seized and impounded under the provisions of this article may, at any time prior to the expiration of five days from the time that notice of the seizure and impounding of the dog has been given or posted as required by this article, redeem the dog by paying to the dog warden or his or her authorized agent or deputy all of the costs assessed against the dog and by providing a valid certificate of registration and registration tag for the dog.
(e) Reasonable costs and fees, in an amount to be determined, from time to time, by the county commission, shall be assessed against every dog seized and impounded under the provisions of this article, except dogs taken into custody under section two of this article. The cost shall be a valid claim in favor of the county against the owner, keeper or harborer of any dog seized and impounded under the provisions of this article and not redeemed or sold as provided in this section and the costs shall be recovered by the sheriff in a civil action against the owner, keeper or harborer.
(f) A record of all dogs impounded, the disposition of the dogs and a statement of costs assessed against each dog shall be kept by the dog warden and a transcript thereof shall be furnished to the sheriff quarterly.
(g) All persons or entities in the state performing euthanasia under this article of the code shall register with the Board of Veterinary Medicine by December 31, 2009, in a manner to be perscribed by the board. The Board of Veterinary Medicine shall promulgate emergency rules relating to the registration of those performing animal euthanasia, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 10A. ANIMAL EUTHANASIA TECHNICIANS.
§30-10A-4. Scope of practice.

(a) A certified animal euthanasia technician may sedate, tranquilize and euthanize animals assigned to the care of a legally operated humane society, animal shelter or animal control facility within this state. A certified animal euthanasia technician shall practice sedation, tranquilization and euthanasia under the authority of a licensed veterinarian as defined in article ten of this chapter or a county humane officer as defined in article ten, chapter seven of this code within the limitations imposed by this article and rules promulgated by the board under this article.
(b) For the purposes of this article, controlled substance permits issued by the state board of pharmacy and the federal drug enforcement administration shall be issued to a municipal or county run animal control facility, or a humane society or animal shelter incorporated and organized under the laws of the state, with one or more duly appointed agents. The humane society or animal shelter shall possess a tax exempt charitable or tax exempt governmental determination under the Internal Revenue Code of 1986, as amended.
(c) A certified animal euthanasia technician may not practice or offer to practice his or her profession outside the direct authority of the humane society, animal shelter or animal control facility which employs him or her or otherwise contracts for his or her services. A certified animal euthanasia technician is not qualified and may not indicate that he or she is qualified to act in any capacity relative to animals beyond his or her specified and regulated authority to sedate, tranquilize and euthanize animals at the instruction of the humane society, animal shelter or animal control facility by which he or she is employed and under the supervision of a humane officer or licensed veterinarian.
§30-10A-6. Recordkeeping.
A humane society, animal shelter or animal control facility which was issued a controlled substances permit by the board of pharmacy and an identification number by the federal drug enforcement administration is responsible for insuring that certified animal euthanasia technicians in its employ maintain proper records regarding the inventory, storage and administration of controlled substances and any other drugs which he or she is authorized to administer. The proper completion and retention of these records is the joint responsibility of the humane society, animal shelter or animal control facility and the certified animal euthanasia technician. The humane society, animal shelter or animal control facility and the certified animal euthanasia technicians are subject to inspection and audit by the board, the West Virginia board of pharmacy and any other appropriate state or federal agency with authority regarding the recordkeeping, inventory, storage and administration of controlled substances used and other drugs authorized for use by animal euthanasia technicians under authority of this article.
§30-10A-8. Drug selection.
(a) In the event that sodium pentobarbital is no longer approved as the euthanasia "drug of choice" for animals by either state or federal mandate, the board shall determine the replacement "drug of choice" for sodium pentobarbital for use by certified animal euthanasia technicians by legislative rule. The replacement "drug of choice" shall be administered, controlled, stored and secured by a humane society, animal shelter or animal control facility which meets the qualifications in section one of this article in accordance with legislative rules promulgated by the board.
(b) The board may replace sodium pentobarbital as the "drug of choice" at any time by legislative rule promulgated pursuant to article three, chapter twenty-nine-a of this code. The determined "drug of choice" for animal euthanasia as specified by the board shall be used by animal euthanasia technicians certified under the provisions of this article.
(c) The board shall promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine of this code to allow the use of sedatives and tranquilizers by euthanasia technicians, as defined in section one of this article.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 501, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 501) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 528, Depositing certain fees in counties' general funds.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.

For the purpose of this section, the word "page" is defined as being a paper or electronic writing of not more than legal size, 8 1/2" x 14".
The clerk of the county commission shall charge and collect the following fees:
(a) When a writing is admitted to record, for receiving proof of acknowledgment thereof, entering an order in connection therewith, endorsing clerk's certificate of recordation thereon and indexing in a proper index, where the writing is a:
(1) Deed of conveyance (with or without a plat), trust deed, fixture filing or security agreement concerning real estate lease, $15.
(2) Trustee's report of sale for any property for which additional information and filing requirements are required by section eight-a, article one, chapter thirty-eight of this code, $40, provided that $20 dollars of each recording fee received pursuant to this subdivision shall be deposited into the county's general revenue fund and $20 dollars of each of the aforesaid recording fees shall be paid by the county clerk to the State Treasurer quarterly and deposited in the banking commissioner's fund to cover its expenses in aggregating, collecting and publishing the data.
(2) (3) Financing, continuation, termination or other statement or writing permitted to be filed under chapter forty-six of this code, $10.
(3) (4) Plat or map (with no deed of conveyance), $10 dollars.
(4) (5) Service discharge record, no charge.
(5) (6) Any document or writing other than those referenced in subdivisions (1), (2), (3), and (4) and (5) of this subsection, $10.
(6) (7) If any document or writing contains more than five pages, for each additional page, $1.
For any of the documents admitted to record pursuant to this subsection, if the clerk of the county commission has the technology available to receive these documents in electronic form or other media, the clerk shall set a reasonable fee to record these writings not to exceed the cost for filing paper documents.
(7) Eleven dollars of each recording fee received pursuant to subdivision (1) of this subsection shall be retained by the county clerk for the operation of that office and $4 of each of the aforesaid recording fees together with $5 of the recording fee collected pursuant to subdivision (5) of this section shall be paid by the county clerk into the State Treasury and deposited in equal amounts for deposit into the Farmland Protection Fund created in article twelve, chapter eight-a of this code for the benefit of the West Virginia Agricultural Land Protection Authority and into the Outdoor Heritage Conservation Fund created in article two-g, chapter five-b of this code: Provided, That the funds deposited pursuant to this subdivision may only be used for costs, excluding personnel costs, associated with purpose of land conservation, as defined in subsection (f), section seven, article two-g, chapter five-b of this code.
(8) Of the fees collected pursuant to subdivision (1), subsection (a) of this section, $10 shall be deposited in the county general fund in accordance with section twenty-eight of this article and $1 shall be deposited in the county general fund and dedicated to the operation of the county clerk's office. Four dollars of the fees collected pursuant to subdivision (1), subsection (a) of this section, and $5 of the fees collected pursuant to subdivision (6), subsection (a) of this section, shall be paid by the county clerk into the State Treasury and deposited in equal amounts for deposit into the Farmland Protection Fund created in article twelve, chapter eight-a of this code for the benefit of the West Virginia Agricultural Land Protection Authority and into the Outdoor Heritage Conservation Fund created in article two-g, chapter five-b of this code: Provided, That the funds deposited in the State Treasury pursuant to this subdivision may only be used for costs, excluding personnel costs, associated with purpose of land conservation, as defined in subsection (f), section seven of said article.
(b) For administering any oath other than oaths by officers and employees of the state, political subdivisions of the state or a public or quasi-public entity of the state or a political subdivision of the state, taken in his or her official capacity, $5.
(c) For issuance of marriage license and other duties pertaining to the marriage license (including preparation of the application, administrating the oath, registering and recording the license, mailing acknowledgment of minister's return to one of the licensees and notification to a licensee after sixty days of the nonreceipt of the minister's return), $35.
(1) One dollar of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the State Treasury as a state registration fee in the same manner that license taxes are paid into the Treasury under article twelve, chapter eleven of this code;
(2) Fifteen dollars of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the State Treasury for the Family Protection Shelter Support Act in the same manner that license taxes are paid into the Treasury under article twelve, chapter eleven of this code;
(3) Ten dollars of the marriage license fee received pursuant to this subsection shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(d) (1) For a copy of any writing or document, if it is not otherwise provided for, $1.50.
(2) If the copy of the writing or document contains more than two pages, for each additional page, $1.
(3) For annexing the seal of the commission or clerk to any paper, $1.
(4) For a certified copy of a birth certificate, death certificate or marriage license, $5.
(e) For copies of any record in electronic form or a medium other than paper, a reasonable fee set by the clerk of the county commission not to exceed the costs associated with document search and duplication.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 528--A Bill to amend and reenact §59-1-10 of the Code of West Virginia, 1931, as amended, relating to certain fees collected by clerks of the county commission; creating a new recording fee for the recording of certain trustee's reports of sale; providing for the distribution of certain fees paid to the clerk of the county commission for recording of certain documents.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 528, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 528) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 594, Requiring monthly fund installments to Courtesy Patrol.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, section twelve, lines ten and eleven, by striking out the words "in equal monthly installments";
On page two, section twelve, line twelve, after the word "Fund" by inserting the words "according to the following schedule: On July 31 of each year, $850,000, and on the last day of each month thereafter, $350,000";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 594--A Bill to amend and reenact §5B-2-12 of the Code of West Virginia, 1931, as amended, relating to the transfer of moneys for the courtesy patrol program out of the Tourism Promotion Fund.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 594, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 594) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 594) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 600, Relating to coal reclamation tax.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 600--A Bill to amend and reenact §22-3-11 of the Code of West Virginia, 1931, as amended, relating to continuing and reimposing a special reclamation tax on clean coal mined; and providing for legislative review of the tax every two years.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 600, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 600) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 600) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 610, Relating to Film Industry Investment Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Senate Bill No. 610--A Bill to amend and reenact §11-13X- 3, §11-13X-5, §11-13X-6, §11-13X-8, §11-13X-9 and §11-13X-13 of the Code of West Virginia, 1931, as amended, all relating generally to the West Virginia Film Industry Investment Act; providing and eliminating definitions; increasing the amount of credit allowed in certain years; providing requirements to claim credit; providing for use of credit and transfer process; eliminating liability of transferees for credit that is disqualified; authorizing issuance of rules by the Secretary of Commerce for administration of the film credit; and making amendments retroactively applicable to taxable years beginning after December 31, 2007.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 610, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 610) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 636, Finding and declaring certain claims against state.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 687, Relating to Comprehensive Behavioral Health Commission.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §16-42-3, §16-42-5, §16-42-6 and §16-42-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §27-17-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.
§16-42-3. Comprehensive Behavioral Health Commission.
(a) There is created Effective May 1, 2009, the Comprehensive Behavioral Health Commission is reestablished within the Department of Health and Human Resources the Comprehensive Behavioral Health Commission to continue the study of the current behavioral health system, including substance abuse and domestic violence when those conditions have an effect upon or are impacted by the system.
(b) The commission consists of:
(1) A representative of the circuit and family court system, as appointed by the Chief Justice of the West Virginia Supreme Court of Appeals;
(2) A representative of the Commissioner of the Division of Corrections;
(3) The Commissioner of the Bureau of Senior Services or a designee;
(4) The Secretary of the Department of Health and Human Resources or a designee;
(5) The Commissioner of the Bureau for Behavioral Health and Health Facilities or a designee;
(6) The Commissioner of the Bureau for Children and Families or a designee;
(7) The Executive Director of the West Virginia Chapter of the National Alliance on Mental Illness or a designee;
(8) The Chancellor for Higher Education or a designee; and
(9) One physician with a speciality in psychiatry appointed by the Governor from a list provided by the West Virginia Medical Association; Each ex officio member may appoint a designee.
(10) One member of the House of Delegates, who is a nonvoting member, appointed by the Speaker; and
(11) One member of the Senate, who is a nonvoting member, appointed by the President. serve as non-voting members The Governor shall appoint a chairperson.
(c) The commission shall meet at times and places as it finds necessary and shall be staffed by the Bureau for Behavioral Health and Health Facilities and the Health Care Authority.
(d) An Effective May 1, 2009, the advisory board shall be created is reestablished to serve in a consulting role to the commission members. The advisory board with the following members shall be appointed by the Governor as follows:
(1) One member from a list provided by the West Virginia Chapter of the National Association of Social Workers;
(2) One member from a list provided by the West Virginia Hospital Association;
(3) One member who is a psychologist from a list provided by the West Virginia Psychological Association;
(4) One citizen member from a list of two nominees from each medical school;
(5) One member from a list of five nominees provided by the Primary Care Association;
(6) One member from a list provided by the West Virginia Behavioral Healthcare Providers Association;
(7) One member from a list provided by the West Virginia Child Care Association; and
(8) One member from a list provided by the Council of Churches.
(e) Those persons serving on the commission and the advisory board on January 1, 2009, may continue serving on the reestablished commission and advisory board and the person so designated as chairperson of the commission shall remain as chairperson.
(e) (f) Each member of the commission and advisory board is entitled to receive compensation and expense reimbursement for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A commission member may not receive compensation for travel days that are not on the same day as the official meeting or official duties.
§16-42-5. Report.
The commission shall submit a preliminary report of its progress in on its study, including recommendations, to the Governor and the Legislature by the first day of January, two thousand seven and a final report including its recommendations by the first day of January, two thousand eight. The Department of Health and Human Resources shall submit a report to the Governor and the Legislature by the first day of July, two thousand eight regarding implementation of the recommendations of the commission. The department shall report no less than quarterly to the Legislative Oversight Commission on Health and Human Resources Accountability January 1, 2011.
§16-42-6. Certificate of need standards.
Pursuant to the provisions of article two-d of this chapter, the West Virginia Health Care Authority shall provide the commission with information needed to complete the study required in this article. The staff of the authority shall work jointly with the staff of the Bureau for Behavioral Health and Health Facilities in providing services to the commission. The commission shall make recommendations in its final report relating to the certificate of need standards.
§16-42-7. Termination of commission.
The commission ceases to exist on the thirty-first day of January, two thousand nine, or after the submission of the commission's final report, whichever occurs first and advisory board terminate on June 30, 2011.

CHAPTER 27. MENTALLY ILL PERSONS.

ARTICLE 17. GROUP RESIDENTIAL FACILITIES.

§27-17-1. Definitions.

(a) "Developmental disability" means a chronic disability of a person which: (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) is likely to continue indefinitely; (3) results in substantial functional limitations in self-direction, capacity for independent living or economic self-sufficiency; and (4) reflects the person's need for a combination and sequence of special, interdisciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated.
(b) "Behavioral disability" means a disability of a person which: (1) Is attributable to severe or persistent mental illness, emotional disorder or chemical dependency; and (2) results in substantial functional limitations in self-direction, capacity for independent living or economic self-sufficiency.
(c) "Group residential facility" means a facility which is owned, or leased or operated by a behavioral health service provider and which: (1) Provides residential services and supervision for individuals who are developmentally disabled or behaviorally disabled; (2) is occupied as a residence by not more than eight individuals who are developmentally disabled and not more than three supervisors, or is occupied as a residence by not more than twelve individuals who are behaviorally disabled and not more than three supervisors; (3) is licensed by the Department of Health or the division of human services and Human Resources; and (4) complies with the State Fire Commission for residential facilities.
(d) "Group residential home" means a building owned or leased by developmentally disabled or behaviorally disabled persons for purposes of establishing a personal residence. A behavioral health service provider may not lease a building to such persons if the provider is providing services to the persons without a license as provided for in this article.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 687--A Bill to amend and reenact §16-42-3, §16-42-5, §16-42-6 and §16-42-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §27-17-1 of said code, all relating to health; defining terms; reestablishing the Comprehensive Behavioral Health Commission and Advisory Board; reporting requirements; and terminating the Comprehensive Behavioral Health Commission and Advisory Board.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 687, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 687) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 687) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 695, Relating to payment for certain state employees' unused sick leave.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 761, Relating to illegal entries upon certain property.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §61-3-12 and §61-3-29 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-12. Entry of building other than dwelling; entry of railroad, traction or motorcar, steamboat or other vessel; penalties; counts in indictment.

If any person shall, at any time, break and enter, or shall enter without breaking, any office, shop, underground coal mine, storehouse, warehouse, banking house or any house or building, other than a dwelling house or outhouse adjoining thereto or occupied therewith, or any railroad or traction car, propelled by steam, electricity or otherwise, or any steamboat or other boat or vessel, or any commercial, industrial or public utility property enclosed by a fence, wall or other structure erected with the intent of the property owner of protecting or securing the area within and its contents from unauthorized persons, within the jurisdiction of any county in this state, with intent to commit a felony or any larceny, he or she shall be deemed guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one nor more than ten years. And if any person shall, at any time, break and enter, or shall enter without breaking, any automobile, motorcar or bus, with like intent, within the jurisdiction of any county in this state, he or she shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail not less than two nor more than twelve months and be fined not exceeding $100.
An indictment for burglary may contain one or more counts for breaking and entering, or for entering without breaking, the house or building mentioned in the count for burglary under the provisions of this and the preceding section and section eleven of this article.
§61-3-29. Damage or destruction of railroad or public utility company property, or real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; penalties; restitution.

(a) Any person who knowingly and willfully damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand dollars, or confined in jail not more than one year, or both fined and confined.
(b) Any person who knowingly and willfully: (1) Damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; and, (2) creates a substantial risk of serious bodily injury to another or results in the interruption of service to the public is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000, or confined in a state correctional facility not less than one nor more than three years, or both fined and imprisoned.
(c) Any person who knowingly and willfully: (1) Damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; and, (2) causes serious bodily injury to another is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $50,000, or confined in a state correctional facility not less than one nor more than five years, or both fined and imprisoned.
(c) (d) Nothing in this section may be construed to limit or restrict the ability of an entity referred to in subsection (a), or (b) or (c) of this section or a property owner or other person who has been damaged or injured as a result of a violation of this section from seeking recovery for damages arising from violation of this section.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 761--A Bill to amend and reenact §61-3-12 and §61-3-29 of the Code of West Virginia, 1931, as amended, all relating to crimes committed on or against commercial, railroad or public utility property; extending criminal penalties for prohibited entry upon commercial property enclosed by a fence or similar physical barrier or upon certain structures used for utility transmission or distribution; clarifying the offense of breaking and entering or entering without breaking onto public utility property that is enclosed or fenced, with the intent to commit a felony or larceny; establishing the felony offense of knowingly and willfully damaging and destroying utility or railroad property, resulting in the creation of a substantial risk of serious bodily injury to another; and criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 761, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 761) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 13, Requesting Division of Highways name bridge in Berkeley County "Bruce Van Wyk Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 32, Requesting Division of Highways name bridge in Boone County "Brian Scott 'Scotty' Ulbrich Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 34, Requesting Division of Highways name portion of U. S. 52 "R. A. West Memorial Highway".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 35, Requesting Division of Highways name bridge in Mercer County "Staff Sergeant Stanley Brian Reynolds Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 43, Requesting Division of Highways name bridge in Grafton "Bearcat Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 44, Requesting Division of Highways name Route 3 in Racine "Barry Lutsy Memorial Highway".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 48, Requesting Division of Highways name bridge in Mercer County "Corporal Ray B. Cheatwood, Jr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 2684, West Virginia Drug Offender Accountability and Treatment Act.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2753, Relating to the continuation of the Design-Build Program.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. House Bill No. 2950, Creating the Neighborhood Housing and Economic Stabilization Program for low-income minority neighborhoods.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 5--Requesting the Joint Committee on Government and Finance study, safety issues surrounding the delivery of services that occur during home visits conducted by employees and contractors of the Department of Health and Human Resources in the state of West Virginia.
Referred to the Committee on the Judiciary; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 6--Requesting the Joint Committee on Government and Finance reconstitute Select Committee A on Children, Juveniles and Other Matters during the Interim period of the Seventy-Ninth Legislature.
Referred to the Committee on the Judiciary; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 59--Requesting the Legislature establish a Joint Legislative Committee on Public Service Commission Accountability and Effectiveness for the purpose of studying the accountability and effectiveness of the Public Service Commission, and proposing legislation consistent with the committee's findings.
Referred to the Committee on Government Organization; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 61--Requesting the bridge in Bruceton Mills crossing I-68 at the Bruceton Mills exit, mile marker 23, in Preston County, West Virginia, specifically bridge number 39-73/11-0.04(2835), be named the "Trooper First Class James Thomas Brammer Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 66--Requesting the Division of Highways place commemorative signs at mile marker 65.5 of the north and south bound lanes of Interstate 64/Interstate 77 near Mahan in Fayette County and on Route 19 one mile north of its intersection with Route 61 near Oak Hill in Fayette County indicating that the motorist is crossing the 38th parallel north in honor of the veterans of the Korean War and particularly in memory of the thousands who died in the pursuit of freedom for all mankind.
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 239, Allowing majority vote for certain metro government approval.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section four-a, by striking out all of section four-a and inserting in lieu thereof the following:
(a) Notwithstanding any other provision of this chapter to the contrary, where the election is on the question of consolidation of a county with a population exceeding one hundred fifty thousand, based on the 2000 or 2010 census of population taken under the authority of the United States government, and a single Class I city that is the principal municipality of the county, then metro government becomes effective pursuant to the charter if a majority of the legal votes cast by the qualified voters of the principal city and a majority of the legal votes cast by the qualified voters of all incorporated and unincorporated areas of the affected county, excluding the principal city, approves the consolidation.
(b) As used in this section, a Class I city is a municipality so classified under section eight, article one, chapter eight of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 239, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bowman, Browning, Caruth, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Deem, Sypolt and Williams--5.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 239) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 521, Including telecommunications devices as jail contraband.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-8. Aiding escape and other offenses relating to adults and juveniles in custody or confinement; penalties.

(a) Where any adult or juvenile is lawfully detained in custody or confinement in any jail, state correctional facility, juvenile facility or juvenile detention center, if any other person delivers anything into the place of custody or confinement of the adult or juvenile with the intent to aid or facilitate the adult's or juvenile's escape or attempted escape therefrom, or if the other person forcibly rescues or attempts to rescue an adult or a juvenile therefrom, the other person is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years.
(b) Where any adult or juvenile is lawfully detained in custody or confinement in any jail, a state correctional facility or a juvenile facility or juvenile detention center, if any other person delivers any money or other thing of value, any written or printed matter, any article of merchandise, food or clothing, any medicine, telecommunication device, utensil or instrument of any kind to the adult or juvenile without the express authority and permission of the supervising officer and with knowledge that the adult or juvenile is lawfully detained, the other person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 and confined in jail not less than three nor more than twelve months: Provided, That the provisions of this section do not prohibit an attorney or his or her employees from supplying any written or printed material to an adult or juvenile which pertains to that attorney's representation of the adult or juvenile.
(c) (1) If any person transports any alcoholic liquor, nonintoxicating beer, poison, implement of escape, dangerous material, weapon, or any controlled substance as defined by chapter sixty-a of this code onto the grounds of any jail, state correctional facility, juvenile facility or juvenile detention center within this state and is unauthorized by law to do so, or is unauthorized by the persons supervising the facility, the person is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in a state correctional facility not less than two years nor more than ten years, or both, or, in the discretion of the court, be confined in jail not more than one year and fined not more than $500.
(2) If any person willfully and knowingly transports or causes to be transported any telecommunications device into or upon any portion of any jail, state correctional facility, juvenile facility or juvenile detention center within this state that is not generally open and accessible to members of the public without prior approval from the warden/administrator or designee, and such person is unauthorized by law to do so, or is unauthorized by the persons supervising the facility, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail not more than one year or both fined and confined.
(d) If any person delivers any alcoholic liquor, nonintoxicating beer, poison, implement of escape, dangerous material, weapon or any controlled substance as defined by chapter sixty-a of this code to an adult or juvenile in custody or confinement in any jail, state correctional facility, juvenile facility or juvenile detention center within this state and is unauthorized by law to do so, or is unauthorized by the persons supervising the facility, the person is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in a state correctional facility not less than one year nor more than five years, or both.
(e) Whoever purchases, accepts as a gift or secures by barter, trade or in any other manner any article or articles manufactured at or belonging to any jail, state correctional facility, juvenile facility or juvenile detention center from any adult or juvenile detained therein is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 and confined in jail not less than three nor more than twelve months: Provided, That the provisions of this subsection do not apply to articles specially manufactured in any facility under the authorization of the persons supervising the facility and which are offered for sale within or outside of the facility.
(f) Whoever persuades, induces or entices or attempts to persuade, induce or entice any person who is in custody or confined in any jail, state correctional facility, juvenile facility or juvenile detention center to escape therefrom or to engage or aid in any insubordination to the persons supervising the facility is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 and confined in jail not less than three nor more than twelve months.
(g) (1) An inmate of a jail, state correctional facility, juvenile facility or juvenile detention center having in his or her possession any poison, implement of escape, dangerous material, weapon, telecommunications device or any controlled substance as defined by chapter sixty-a of this code is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in a state correctional facility not less than one year nor more than five years, or both, or, in the discretion of the court, be confined in jail not more than one year and fined not more than $500.
(2) An inmate of a jail, state correctional facility, juvenile facility or juvenile detention center having in his or her possession any alcoholic liquor, nonintoxicating beer, money or other thing of value, any written or printed matter, any article of merchandise, food or clothing, any medicine, telecommunication device, utensil or instrument of any kind without the express authority and permission of the supervising officer is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 and confined in jail not more than twelve months.
(h) As used in this section:
(1) "Dangerous material" means any incendiary material or device, highly flammable or caustic liquid, explosive, bullet or other material readily capable of causing death or serious bodily injury.
(2) "Delivers" means to transfer an item to an adult or juvenile who is detained in custody or confinement in any jail, correctional facility, juvenile facility or juvenile detention center or a building appurtenant to those places. The term includes bringing the item into a jail, correctional facility, juvenile facility or juvenile detention center or a building appurtenant to those places. The term includes putting an item in a place where it may be obtained by an inmate.
(3) "Inmate" means an adult or juvenile who is detained in custody or confinement in any jail, correctional facility, juvenile facility or juvenile detention center, regardless of whether the individual is temporarily absent due to medical treatment, transportation, court appearance or other reason for a temporary absence.
(4) "Implement of escape" means a tool, implement, device, equipment or other item which an inmate is not authorized to possess capable of facilitating, aiding or concealing an escape or attempted escape by an inmate.
(5) "Telecommunication device" means any type of instrument, device, machine or equipment which is capable of transmitting telephonic, electronic, digital, cellular or radio communications or any part of an instrument, device, machine or equipment which is capable of facilitating the transmission of telephonic, electronic, digital, cellular or radio communications regardless of whether the part itself is able to transmit. The term includes, but is not limited to, cellular phones, digital phones and modem equipment devices.
(6) "Weapon" means an implement readily capable of lethal use and includes any firearm, knife, dagger, razor, other cutting or stabbing implement or club. The term includes any item which has been modified or adapted so that it can be used as a firearm, knife, dagger, razor, other cutting or stabbing implement or club. For purposes of this definition, the term "firearm" includes an unloaded firearm or the unassembled components of a firearm.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 521, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 521) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 404, Creating sesquicentennial commission and fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out the everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 13. WEST VIRGINIA SESQUICENTENNIAL OF THE AMERICAN CIVIL WAR COMMISSION AND FUND.

§4-13-1. Findings; West Virginia Sesquicentennial of the American Civil War Commission established; purpose.

(a) The Legislature finds that the role of West Virginia, its creation as a state and the roles of individual West Virginians in the American Civil War, from the time of John Brown's raid through the formation of the State of West Virginia and the conclusion of the American Civil War, are of such historical significance as to warrant their commemoration.
(b) There is hereby created the West Virginia Sesquicentennial of the American Civil War Commission.
(c) The purpose of the commission is to prepare for and commemorate the sesquicentennial of West Virginia's participation in the American Civil War.
§4-13-2. Membership; terms; filling vacancies; election of chair and vice chair.

(a) The Governor shall appoint eleven members as follows:
(1) Three academic historians;
(2) The Secretary of the Department of Education and the Arts, or a designee;
(3) One representative of the Division of Culture and History;
(4) One representative of the Division of Tourism;
(5) Five citizens members, no more than one of whom may be from any one state senatorial district;
(6) One member of the House of Delegates, to be appointed by the Speaker of the House of Delegates, who shall serve as an ex officio nonvoting member of the Commission; and
(7) One member of the Senate, to be appointed by the President of the Senate, who shall serve as an ex officio nonvoting member of the Commission.
(b) The members shall serve until July 1, 2021.
(c) Appointments to fill vacancies shall be for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments.
(d) The commission shall elect a chair and a vice chair from among its members.
§4-13-3. Expense reimbursement.
(a) Members shall serve without compensation.
(b) The commission may reimburse members for all reasonable and necessary expenses actually incurred in the performance of his or her duties as a commission member, in a manner consistent with the guidelines of the travel management office of the Department of Administration, subject to availability of funds received pursuant to subdivision (1), subsection (a), section six of this article. No provision of this section may be construed to require any appropriation of funds by the Legislature.
§4-13-4. Quorum; meetings.
(a) A simple majority of the members serving on the board at a given time constitutes a quorum for the transaction of business.
(b) Meetings shall be held in accordance with the provisions of article nine-a, chapter six of this code.
§4-13-5. Advisory council.
The commission may establish an advisory council composed of citizens at large who have knowledge of American Civil War history and interest in its sesquicentennial celebration, to assist the commission in its work.
§4-13-6. Powers; duties; limitation on duration of contracts.
(a) The commission may:
(1) Solicit, accept, use and dispose of gifts, grants, donations, bequests or other funds or real or personal property for the purpose of aiding or facilitating the work of the commission, upon compliance with the provisions of section two, article two, chapter twelve of this code;
(2) Procure supplies, services and property, and make or enter into contracts, leases or other legal agreement as necessary to carry out its duties: Provided, That no contract, lease or other legal agreement may be entered into by the commission with terms which would extend beyond the termination date of the commission;
(3) Plan, develop and carry out programs and activities appropriate to commemorate the sesquicentennial of the American Civil War;
(4) Encourage civic, historical, educational, economic and other organizations throughout West Virginia to organize and participate in activities to expand the understanding and appreciation of the American Civil War;
(5) Provide technical assistance to localities and nonprofit organizations to further the commemoration of the sesquicentennial of the American Civil War;
(6) Develop programs and facilities to ensure that the sesquicentennial commemoration of the American Civil War result in a positive legacy and long-term public benefit;
(7) Encourage the development and conduct of programs designed to involve all citizens in activities that commemorate the sesquicentennial of the American Civil War; and
(8) Focus its activities on the role of West Virginia and its creation as a state and the roles of individual West Virginians in the American Civil War.
(b) The commission shall report to the Legislature at each regular session and at the same time report to the Governor concerning the action taken by the commission during the previous year in carrying out the provisions of this article and make such special reports as may be required by the Legislature and Governor.
§4-13-7. Termination of the commission.
The commission shall terminate on June 30, 2021.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 404--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §4-13-1, §4-13-2, §4-13-3, §4-13-4, §4-13-5, §4-13-6 and §4-13-7, all relating to establishing a West Virginia Sesquicentennial of the American Civil War Commission; establishing findings and purpose; setting forth membership and terms; providing for compensation and expense reimbursement; defining quorums; requiring meeting to be held in accordance with the Open Governmental Proceedings Act; authorizing the commission to establish an advisory council; setting forth powers and duties of the commission; limiting duration of contracts; and providing for the termination of the commission.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 404, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 404) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 404) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2819, Authorizing miscellaneous agencies and boards to promulgate legislative rules.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate.
On motion of Senator Kessler, the Senate reconsidered the vote as to the effective date and passage.
The vote thereon having being reconsidered,
On motion of Senator Kessler, the Senate reconsidered its action by which on yesterday, Thursday, April 9, 2009, it adopted the Judiciary committee amendments to the bill (shown in the Senate Journal of that day, page 110).
The vote thereon having been reconsidered,
The question again being on the adoption of the Judiciary committee amendments to the bill.
Thereafter, at the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the Judiciary committee amendments to the bill were withdrawn.
On motion of Senator Kessler, the following amendments to the bill (Eng. Com. Sub. for H. B. No. 2819) were reported by the Clerk, considered simultaneously, and adopted:
On page twenty, section seven, line twenty-seven, by striking out "3" and inserting in lieu thereof "13";
And,
On page twenty, section seven, line twenty-seven, after the word "authorized" by changing the period to a comma and adding the following: with the following amendment:
On pages one and two, section seven, by striking out all of subsection 1.5.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2819) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2819) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2819) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2968, Requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote by which it adopted Senator Chafin's motion that Engrossed Committee Substitute for House Bill No. 2968 take effect from passage.
Thereafter, at the request of Senator Chafin, and by unanimous consent, his aforestated motion was withdrawn.
On motion of Senator Kessler, the Senate reconsidered its action by which on yesterday, Thursday, April 9, 2009, it adopted the Judiciary committee amendment to the title of the bill (shown in the Senate Journal of that day, page 56).
The vote thereon being reconsidered,
The question again being on the adoption of the Judiciary committee amendment to the title of the bill.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the Judiciary committee amendment to the title of the bill was withdrawn.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2968--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §29-3-5c and §29-3-16d, all relating to requiring the State Fire Commission to establish safety standards for fuel gas systems; requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems ; and requiring the State Fire Commission to establish safety standards for non-owner or occupant installation, maintenance or service of fuel gas systems in one or two family dwellings.
The bill, as just amended, was read a third time and put upon its passage.
Om the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2968) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2968) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Chafin offered the following resolution:
Senate Resolution No. 56--Recognizing Virginia L. Branham- Lewis for her commitment and dedication to public service.
Whereas, Virginia L. Branham-Lewis has been an honorable, diligent and loyal public servant since 1978 when she was hired by the Mingo County Commission as a secretary/clerk for the Housing Authority of Mingo County; and
Whereas, Virginia L. Branham-Lewis became executive director of the Housing Authority of Mingo County in 1981 and has expanded the authority to provide rental assistance to over 1,400 families in a five-county region; and
Whereas, Under the guidance of Virginia L. Branham-Lewis, the Housing Authority of Mingo County tenaciously pursued funds to purchase a 35-unit public housing complex and gut and remodel a 10,000 square foot building which has become the administrative offices of the authority; and
Whereas, Since 2001, Virginia L. Branham-Lewis has coordinated efforts between various agencies to provide loans to qualified borrowers totaling $13,360,702, making the American dream of home ownership a reality for many individuals and families; and Whereas, Virginia L. Branham-Lewis has been instrumental in securing more than $25 million in water projects for Mingo County and bringing public transportation to the area through Tri-Rivers Transit; and
Whereas, Virginia L. Branham-Lewis has served as Vice President of the Mingo County Redevelopment Authority, Vice President/Treasurer of the West Virginia Association of Housing Agencies and Secretary of the West Virginia Affordable Housing Trust Fund; and
Whereas, Virginia L. Branham-Lewis has been a role model to her colleagues and the people she serves and her high degree of professional integrity exemplifies the public's expectations for the conduct of a public servant; and
Whereas, After 31 years of public service, Virginia L. Branham-Lewis will enjoy the fruits of her labor through well- deserved retirement; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Virginia L. Branham-Lewis for her commitment and dedication to public service; and, be it
Further Resolved, The Senate extends its sincere appreciation to Virginia L. Branham-Lewis for her exemplary service and expresses its best wishes to her on the occasion of her retirement and for any future endeavors she may choose to undertake; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Virginia L. Branham-Lewis.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate third reading calendar, Engrossed House Bill No. 2050 and Engrossed Committee Substitute for House Bill No. 3275.
Senator Chafin also announced that in the same meeting, the Committee on Rules had returned to the Senate calendar, on third reading, Engrossed Committee Substitute for House Bill No. 2530; and on second reading, Engrossed Committee Substitute for House Bill No. 2690 , under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 57, Requesting Joint Committee on Government and Finance study proposed new state business and occupation tax on high-voltage electric power transmission lines.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 59, Requesting Joint Committee on Government and Finance study improving and updating severance tax on natural gas and oil.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 60, Requesting Joint Committee on Government and Finance study grants through Economic Development Grant Committee.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 62, Requesting Joint Committee on Government and Finance study tax structure.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 64, Requesting Joint Committee on Government and Finance study carbon dioxide cap and trade proposals.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 65, Requesting Joint Committee on Government and Finance study fireworks' sale, storage and usage.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 66, Requesting Joint Committee on Government and Finance study costs of highways, sewers and water projects.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 67, Requiring Joint Committee on Government and Finance study asbestos trust disclosure issues.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 69, Urging congressional delegation support Main Street Fairness Act.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Finance.
Senate Concurrent Resolution No. 70, Requesting Division of Highways name bridge in Scott Depot "Trooper William 'Bill' Phillips Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
Senate Concurrent Resolution No. 71, Recognizing importance of oil and natural gas industry.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Bowman, and by unanimous consent, the remarks by Senator Green regarding the adoption of Senate Concurrent Resolution No. 71 were ordered printed in the Appendix to the Journal.
At the request of Senator Hall, unanimous consent being granted, the remarks by Senator Deem regarding the adoption of Senate Concurrent Resolution No. 71 were ordered printed in the Appendix to the Journal.

Senate Concurrent Resolution No. 72, Requesting Joint Committee on Government Organization and Finance study hiring retired state employees for current positions within Division of Personnel.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 771, Making supplemental appropriation of federal funds to various accounts.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed Senate Bill No. 771 pass?"
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 771) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 771) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 772, Making supplemental appropriation to various accounts.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 772) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 772) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 773, Making supplemental appropriation to Department of Agriculture, Land Protection Authority.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 773) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 773) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2050, Expanding the counties covered by West Virginia Route 2 and Interstate 68 Authority to include Cabell, Mason and Jackson counties; and increasing the number of members.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2418, Relating to exempting certain records of the Division of Corrections and Regional Jail Authority from the Freedom of Information Act that, if released, could aid inmates in committing unlawful acts.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2418) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2419, Providing inmates a reduction in sentence for completion of education and rehabilitation programs.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2419) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2423, Relating to the Board of Medical Imaging and Radiation Therapy Technology.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2423) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2423) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2530, Relating to further defining professional student support personnel.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2530) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2530--A Bill to amend and reenact §18-9A-2, §18-9A-3a and §18-9A-9 of the Code of West Virginia, 1931, as amended, all relating to further defining professional student support personnel; clarifying definition of net enrollment; modifying method for computing increase in net enrollment for certain counties; providing for computation of certain personnel allowances for certain fiscal years based on number of personnel that would be eligible based on net enrollment; and including professional student support personnel in the public school support formula allowance calculations for current expense and faculty senates.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2530) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2567, Relating to filing agency rules with the Secretary of State under the Administrative Procedures Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2567) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2695, Providing criminal penalties for a hunter who fails to render aid to a person the hunter shoots while hunting.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2695) passed.
The following amendment to the title of the bill, from the Committee on Natural Resources, was reported by the Clerk and adopted:
Eng. Com. Sub. For House Bill No. 2695--A Bill to amend and reenact §20-2-27, §20-2-28 and §20-2-57 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §20-2-42x, §20-2-57a and 20- 2-57b, all relating to hunting and wildlife resources generally; establishing the senior resident lifetime hunting, fishing and trapping license and fee of $15; allowing persons who are sixty- five years of age before January 1, 2010, to remain exempt from the purchase of the license; amending crimes and penalties for negligent shooting of animals and damage to property by a person while hunting; amending crimes and penalties for negligent or reckless shooting, wounding, injuring or killing of another person while hunting; creating misdemeanor and felony offenses for a person who knowingly refuses or fails to render reasonable assistance to the injured person; defining reasonable assistance; prohibiting hunting while intoxicated; creating misdemeanor offense of hunting while intoxicated; creating misdemeanor and felony offenses for shooting, wounding or killing another person while hunting under the influence of alcohol, controlled substances or drugs; providing for the suspension of hunting and fishing license for misdemeanor and felony violations; and criminal and civil penalties .
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2719, Relating to the sale and distribution of craft beer.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Bowman, Browning, Caruth, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
The nays were: Barnes, Boley, Deem and Guills--4.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2719) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Without objection, the Senate returned to the third order of business.
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor:
Executive Communications

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

April 10, 2009

Senate Executive Message No. 9
TO:
The Honorable Members of the

West Virginia Senate
Ladies and Gentlemen:
I respectfully withdraw the following nomination for your advice and consent from Executive Message No. 2, dated February 24, 2009, by way of the nominee requesting to have his name removed:
22.For Member, Public Employees Insurance Agency Finance Board, Perry Bryant, Charleston, Kanawha County, for the term ending June 30, 2012.
Thank you for correcting your records.
Sincerely,
Joe Manchin III,
Governor.
Which communication was received and referred to the Committee on Confirmations.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 3 p.m. today.

Upon expiration of the recess, the Senate reconvened and resumed consideration of its third reading calendar, the next bill coming up in numerical sequence being
Eng. Com. Sub. for House Bill No. 2737, Authorizing the Administrative Director of the Supreme Court of Appeals to hire regional or specialized probation officers.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: Helmick--1.
Absent: Prezioso--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2737) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2771, Relating to the West Virginia Alcohol and Drug-Free Workplace Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 2771 pass?"
On the passage of the bill, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
The nays were: Barnes, Boley, Caruth and Sypolt--4.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2771) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2771--A Bill to amend and reenact §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §21-1D-5a and §21-1D-7b, all relating to West Virginia Alcohol and Drug-Free Workplace Act; defining that a contract under this section shall only include those whose value is over $100,000; defining a preemployment drug test; defining a preemployment drug test; requiring the submission of a sworn statement regarding a drug-free workplace; providing that workers who comply with that United States Department of Transportation drug testing guidelines are not required to submit to additional tests; requiring a report to public authority who let the contract; and providing criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Guills, and by unanimous consent, the remarks by Senators Barnes and Caruth regarding the passage of Engrossed Committee Substitute for House Bill No. 2771 were ordered printed in the Appendix to the Journal.
Eng. House Bill No. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Kessler, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's third reading calendar.
At the request of Senator Kessler, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the eighth order of business.
Eng. House Bill No. 2841, Extending the time for the city council of Richwood to meet as a levying body.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2841) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2841) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2860, Regulating the sequestration and storage of carbon dioxide.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2860) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2869, Lengthening the time frame for the filing of post-primary and post general campaign financial statements.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2869) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2913, Relating to the Statewide Independent Living Council.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2913) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2913) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2981, Relating to primary elections and nominating procedures of third-party candidates.
On third reading, coming up in regular order, with the unreported Judiciary committee amendment pending, and with the right having been granted on Wednesday, April 8, 2009, for further amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Kessler, unanimous consent being granted, further consideration of the bill and the pending unreported Judiciary committee amendment was deferred until the conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 2999, Relating to the Streamlined Sales and Use Tax Agreement and the West Virginia consumers sales and service tax and use tax.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2999) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2999) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 3011, Repealing the section of code relating to limitation on political activity of officers or employees in the administration of the Vocational Rehabilitation Program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3011) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3063, Relating to hunting, tagging and reporting bear.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3063) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3240, Giving the Commissioner of Motor Vehicles authority to approve all-terrain vehicle rider safety awareness courses.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3240) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3275, Changing the date through which governmental entities are required to purchase workers' compensation.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3295, Relating to the West Virginia State Treasurer's Office.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 3295 pass?"
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3295) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3295) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The end of today's third reading calendar having been reached, the Senate returned to the consideration of
Eng. House Bill No. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
On third reading, coming up in deferred order, was again reported by the Clerk.
At the request of Senator Bowman, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar, following consideration of Engrossed House Bill No. 2981, already placed in that position.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2309, Updating the law governing the practice of occupational therapy.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §30-28-19, §30-28-20 , and §30-28-21, all to read as follows:
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-1. Short title.
This article is known and may be cited as the "West Virginia Occupational Therapy Practice Act".
§30-28-2. Applicable law.
The practices licensed under the provisions of this article and the West Virginia Board of Occupational Therapy are subject to the provisions of article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-28-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) "Association" means the West Virginia Occupational Therapy Association.
(b) "Board" means the West Virginia Board of Occupational Therapy.
(c) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity doing business in the State of West Virginia.
(d) "Client-related tasks" means tasks which are related to treatment and which, when performed by an occupational therapy aide, must be performed under direct supervision, including routine transfers, routine care of a patient's personal needs during the course of treatment, execution of an established routine activity or exercise, and assisting the supervising occupational therapist or occupational therapy assistant as directed during the course of treatment.
(e) "Direct supervision" means the actual physical presence of a licensed supervising occupational therapist or licensed occupational therapy assistant, and the specific delineation of tasks and responsibilities for personally reviewing and interpreting the results of any habilitative or rehabilitative procedures conducted by the limited permit holder, occupational therapy student, or aide. Direct supervision includes direct close supervision and direct continuous supervision.
(f) "Direct close supervision" means the licensed supervising occupational therapist or licensed occupational therapy assistant is in the building and has daily direct contact at the site of work.
(g) "Direct continuous supervision" means the licensed supervising occupational therapist or licensed occupational therapy assistant is physically present and in direct line of sight of the occupational therapy student or aide.
(h) "General supervision" means initial direction and periodic inspection of the activities of a licensed occupational therapist assistant by the supervising licensed occupational therapist, but does not necessarily require constant physical presence on the premises while the activities are performed.
(i) "License" means a valid and current license issued by the board under the provisions of this article.
(j) "Nonclient-related tasks" means tasks which are not related to treatment and do not require independent clinical reasoning, including clerical and maintenance activities, housekeeping, preparation of the work area or equipment, transporting patients, and ordering supplies, and which, when performed by an occupational therapy aide, must be performed under general supervision.
(k) "Occupational Therapist" means a person licensed by the board under the provisions of this article to engage in the practice of occupational therapy.
(l) "Occupational Therapy Assistant" means a person licensed by the board under the provisions of this article to assist in the practice of occupational therapy under the general supervision of an Occupational Therapist.
(m) "Occupational Therapy Aide" means a person who may provide nonclient-related tasks under general supervision, or specifically delegated client-related tasks, subject to the conditions set forth in subsection (f), section four of this article, under direct supervision of an Occupational Therapist or an Occupational Therapy Assistant, in accordance with the provisions of this article.
(n) "The practice of occupational therapy" means the therapeutic use of everyday life activities or occupations to address the physical, cognitive, psychosocial, sensory, and other aspects of performance of individuals or groups of individuals, including those who have or are at risk for developing an illness, injury, disease, disorder, condition, impairment, disability, activity limitation or participation restriction, to promote health, wellness and participation in roles and situations in home, school, workplace, community and other settings.
§30-28-4. Scope of practice; license and supervision requirements.
(a) The scope of practice of occupational therapy includes, but is not limited to:
(1) Methods or strategies selected to direct the process of interventions such as:
(A) Establishment, remediation, or restoration of a skill or ability that has not yet developed or is impaired;
(B) Compensation, modification, or adaptation of activity or environment to enhance performance;
(C) Maintenance and enhancement of capabilities without which performance in everyday life activities would decline;
(D) Health promotion and wellness to enable or enhance performance in everyday life activities; and
(E) Prevention of barriers to performance, including disability prevention.
(2) Evaluation of factors affecting activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:
(A) Client factors, including body functions and body structures;
(B) Habits, routines, roles and behavior patterns;
(C) Cultural, physical, environmental, social and spiritual contexts and activity that affect performance; and
(D) Performance skills, including motor, process and communication/interaction skills.
(3) Interventions and procedures to promote or enhance safety and performance in activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:
(A) Therapeutic use of occupations and preparatory, adjunctive and functional activities;
(B) Training in self-care, self-management home management and community/work reintegration;
(C) Development, remediation, or compensation of physical, cognitive, neuromuscular, sensory functions, visual, vestibular and behavioral skills;
(D) Therapeutic use of self, including one's personality, insights, perceptions and judgments, as part of the therapeutic process;
(E) Education and training of individuals, including family members, care givers and others;
(F) Care coordination, case management and transition services;
(G) Consultative services to groups, programs, organizations or communities;
(H) Modification of environments (home, work, school or community) and adaptation of processes, including the application of ergonomic principles;
(I) Assessment, design, fabrication, application, fitting and training in assistive technology, adaptive devices, orthotic devices and training in the use of prosthetic devices to enhance occupational performance;
(J) Assessment, recommendation and training in techniques to enhance functional mobility, including wheelchair management;
(K) Community mobility and re-entry;
(L) Management of feeding, eating and swallowing to enable eating and feeding performance; and
(M) Application of physical agent modalities, and use of a range of specific therapeutic procedures and techniques to enhance occupational performance skills. Use of physical agent modalities by occupational therapy assistants must be consistent with their education (e. g., superficial thermal and mechanical modalities) and used under the general supervision of an occupational therapist. The use of deep thermal or electrical modalities may only be performed by the occupational therapy assistant under the direct supervision of an occupational therapist, until the board shall promulgate rules as well as establish competency standards for the use of the modalities.
(b) No person may engage in the practice of occupational therapy or present herself or himself as an occupational therapist or occupational therapy assistant in this state, or use the words "occupational therapist", "licensed occupational therapist", "occupational therapist registered", "occupational therapy assistant", "licensed occupational therapy assistant", "certified occupational therapy assistant" or "occupational therapy aide", or the letters "O.T.", "L.O.T.", "O.T.R.", "O.T.A.", "L.O.T.A.", "C.O.T.A." or any other words, letters, abbreviations or insignia indicating or implying that he or she is an occupational therapist or occupational therapy assistant, unless he or she holds a valid, current license issued in accordance with the provisions of this article, which has not expired, been suspended or revoked.
(c) No business entity may advertise or otherwise offer to provide or convey the impression that it is providing occupational therapy unless an individual holding a current valid license or permit under this article renders the occupational therapy services to which reference is made.
(d) An occupational therapy assistant may assist in the practice of occupational therapy under the general supervision of an occupational therapist.
(e) An occupational therapist or an occupational therapy assistant may delegate nonclient-related tasks to an occupational therapy aide only under the following conditions:
(1) The occupational therapy aide functions under the general supervision of either the occupational therapist or the occupational therapy assistant who is under the general supervision of the occupational therapist; and
(2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence.
(f) An occupation therapist or an occupational therapy assistant may delegate specifically selected client-related tasks to an occupational therapy aide only under the following conditions:
(1) The occupational therapy aide functions under the direct continuous supervision of either the occupational therapist or the occupational therapy assistant that is under the general supervision of the occupational therapist;
(2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence;
(3) The outcome anticipated for the delegated task is predictable;
(4) The client and the environment are stable and will not require judgment, interpretation or adaptation by the occupational therapy aide; and
(5) The supervising occupational therapist is responsible for the tasks delegated to the occupational therapy aide.
§30-28-5. West Virginia Board of Occupational Therapy.
(a) The West Virginia Board of Occupational Therapy is continued with the following five members appointed by the governor by and with the advice and consent of the Senate:
(1) Three licensed occupational therapists;
(2) One licensed occupational therapy assistant; and
(3) One citizen member,
who is not licensed under the provisions of this article.
(b) The occupational therapist and occupational therapy assistant members shall have been engaged in rendering occupational therapy services to the public, teaching, consulting or conducting research in occupational therapy for at least three years immediately preceding their appointments.
(c) No board member may serve as an officer of the West Virginia Occupational Therapy Association concurrently with his or her service on the board.
(d) The members of the board in office on December 31, 2008, shall, unless sooner removed, continue to serve until their respective terms expire or their successors have been appointed and qualified.
(e) The term shall be for three years commencing on January 1. A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.
(f) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years immediately preceding the appointment.
(g) Each member of the board must be a resident of this state during the appointment term.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(m) A majority of the members of the board constitutes a quorum.
(n) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the constitution of this state.

§30-28-6. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by legislative rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings and conduct hearings;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for a license or permit;
(5) Propose rules for legislative approval relating to professional conduct and ethical standards of practice;
(6) Communicate disciplinary actions to relevant state and federal authorities, the National Board for Certification in Occupational Therapy (NBCOT), the American Occupational Therapy Association (AOTA) and other applicable authorities when public safety is at risk;
(7) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce the provisions of this article including, but not limited to, the executive secretary;
(8) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
(9) Conduct disciplinary hearings of persons regulated by the board;
(10) Determine disciplinary action and issue orders;
(11) Institute appropriate legal action for the enforcement of the provisions of this article;
(12) Maintain an accurate registry of names and addresses of all persons regulated by the board;
(13) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(14) Establish by legislative rule the continuing education and competency requirements for licensees;
(15) Issue, renew, combine, deny, suspend, revoke or reinstate licenses and permits;
(16) Establish a fee schedule;
(17) Take all other actions necessary and proper to effectuate the purposes of this article; and
(18) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
(c) The board may:
(1) Approve and contract with third parties to administer the examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistants in connection with legal matters and questions.
§30-28-7. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses and permits;
(2) Designate third parties to establish educational requirements and to prepare and/or administer examinations and reexaminations;
(3) Procedures for the issuance and renewal of a license, temporary license and limited permit;
(4) A fee schedule;
(5) Continuing education and competency requirements for licensees;
(6) Establishment of competency standards;
(7) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee or permittee;
(8) Requirements for reinstatement of revoked licenses; and
(9) Any other rules necessary to effectuate the provisions of this article.
(b) The board is authorized to promulgate emergency rules in accordance with section fifteen, article three, chapter twenty- nine-a of this code to establish competency standards for advance treatment techniques as set forth in subdivision six, subsection (a) of this section.
(c) All rules in effect on the effective date of this article shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
§30-28-8. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "
West Virginia Board of Occupational Therapy ", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30-28-9. Persons and practices not affected.
This article does not prevent or restrict the practice, services or activities of:
(1) Any person licensed under any other law of this state performing services within the authorized scope of practice for which he or she is licensed;
(2) Any person pursuing a course of study leading to a degree in Occupational Therapy from an accredited educational program if the person acts under the supervision of a clinical supervisor or instructor of the accredited education program and is designated by a title which clearly indicates his or her status as a student; or
(3) Any person fulfilling the supervised fieldwork experience requirements of section ten of this article.
§30-28-10. Qualifications of applicants for license.
To be eligible for a license to engage in the practice of occupational therapy, the applicant must:
(1) Be of good moral character;
(2) Have successfully completed the academic requirements of an educational program for Occupational Therapists or Occupational Therapy Assistants that is accredited by the American Occupational Therapy Association's Accreditation Council for Occupational Therapy Education (ACOTE) or its predecessor organizations;
(3) Have successfully completed a period of supervised fieldwork experience required by the recognized educational institution where he or she met the academic requirements;
(4) Have passed an examination approved by the board;
(5) Have filed an application on forms provided by the board; and
(6) Have paid the applicable fee.
§30-28-11. Examination.
(a) A person who has met the requirements of subsections (1), (2) and (3), section ten of this article, may make application for examination.
(b) Each applicant for licensure shall be examined by written or computerized examination to test his or her knowledge of the basic and clinical sciences relating to occupational therapy, and occupational therapy theory and practice, including the professional skills and judgment of the applicant in the utilization of occupational therapy techniques and methods, and other subjects the board may require to determine the fitness for practice of the applicant. The examination may be administered by the National Board for Certification in Occupational Therapy, Inc. (NBCOT) or another nationally recognized credentialing body as approved by the board.
§30-28-12. Licensees from other jurisdictions; internationally educated applicants.

(a) The board may issue a license to practice to any applicant who presents proof of current licensure as an occupational therapist or an occupational therapy assistant in another jurisdiction which requires standards for licensure considered by the board or by a board-approved credentialing agency to be equivalent to the requirements for licensure in this state and who meets the requirements of section ten of this article.
(b) The board may grant a license to an applicant who was educated outside of the United States or its territories in an educational program whose standards are determined by the board or by a board-approved credentialing agency to be equivalent to the standards required for licensure in this state and who meets the requirements of section ten of this article.
(c) In its discretion, the board may examine a person by a written, oral or skills test for licensing under this section, and may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.
§30-28-13. Issuance of a license, limited permit and temporary license.

(a) The board shall issue a license to any person who meets the requirements of this article upon payment of the license fee prescribed.
(b) The board may issue a limited permit to persons who have completed the education and fieldwork experience requirements of this article. The holder of a limited permit may practice occupational therapy only under the direct close supervision of an occupational therapist who holds a current license in this state. A limited permit is not renewable, and is valid for ninety days: Provided, That the limited permit expires immediately if the holder receives notification of a failing score on the examination.
(c) The board may issue a temporary license to an occupational therapist or an occupational therapy assistant who is licensed and in good standing in a jurisdiction whose standards are determined by the board or by a board-approved credentialing agency to be equivalent to the standards required for licensure in this state and who has submitted an application and the required fee. The holder of a temporary license may practice occupational therapy only in accordance with the provisions of this article. A temporary license is nonrenewable and is valid for thirty days.
(d) The board shall prescribe the form of licenses. The licensee shall conspicuously display the license or a copy of the license at his or her principal place of employment. The licensee shall produce the original license upon the request of the board.
§30-28-14. Renewal of license; renewal of lapsed license; suspension, revocation and refusal to renew; reinstatement of revoked license.

(a) Licenses may be renewed biennially upon documentation of required continuing education and payment of a renewal fee.
(b) A license which has lapsed may be renewed within one year of its expiration date in the manner set by the board. After the expiration of one year, a license may be renewed only by complying with the requirements relating to the issuance of an original license.
(c) The board may suspend, revoke or refuse to renew a license for any reason which would justify the denial of an original application for licensure.
(d) The board may consider the reinstatement of a license which has been revoked upon a showing that the applicant can resume practicing with reasonable skill and safety.
§30-28-15. Special volunteer occupational therapist license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer occupational therapist license for occupational therapists who are retired or are retiring from the active practice of occupational therapy and who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.
(b) The special volunteer occupational therapist license shall be issued by the board to occupational therapists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements.
(c) The board shall develop application forms for the special license provided in this section which shall contain the occupational therapist's acknowledgment that:
(1) The occupational therapist's practice under the special volunteer occupational therapist license will be exclusively devoted to providing occupational therapy care to needy and indigent persons in West Virginia;
(2) The occupational therapist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any occupational therapy services rendered under the special volunteer occupational therapist license;
(3) The occupational therapist will supply any supporting documentation that the board may reasonably require; and,
(4) The occupational therapist agrees to continue to participate in continuing education as required by the board for a special volunteer occupational therapists license.
(d) Any occupational therapist who renders any occupational therapy service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer occupational therapist license authorized under this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the occupational therapy service at the clinic unless the act or omission was the result of the occupational therapist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, before the rendering of any services by the occupational therapist at the clinic
, there must be a written agreement between the occupational therapist and the clinic stating that the occupational therapist will provide voluntary uncompensated occupational therapy services under the control of the clinic to patients of the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an occupational therapist rendering voluntary occupational therapy services at or for the clinic under a special volunteer occupational therapist license authorized under this section.
(f) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the board to issue a special volunteer occupational therapist license to any occupational therapist whose occupational therapist license is or has been subject to any disciplinary action or to any occupational therapist who has surrendered an occupational therapist license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has elected to place an occupational therapist license in inactive status in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has been denied an occupational therapist license.
(h) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any occupational therapist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an occupational therapist who holds a special volunteer occupational therapist license.

§30-28-16. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall, upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated any provision of subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated any provision of this subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license of, impose probationary conditions upon or take disciplinary action against, any licensee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct as defined by legislative rule of the board;
(4) A violation of a lawful order or legislative rule of the board;
(5) Providing substandard care as an Occupation Therapist due to a deliberate or negligent act or failure to act regardless of whether actual injury to a patient is established;
(6) Providing substandard care as an Occupational Therapy Assistant, including exceeding the authority to perform components of intervention selected and delegated by the supervising Occupational Therapist regardless of whether actual injury to a patient is established;
(7) Knowingly delegating responsibilities to an individual who does not have the knowledge, skills or abilities to perform those responsibilities;
(8) Failing to provide appropriate supervision to an Occupational Therapy Assistant or Aide in accordance with this article and legislative rules of the board;
(9) Practicing as an Occupational Therapist or Occupational Therapy Assistant when competent services to recipients may not be provided due to the therapist's own physical or mental impairment;
(10) Having had an Occupational Therapist or Occupational Therapy Assistant license revoked or suspended, other disciplinary action taken, or an application for licensure refused, revoked or suspended by the proper authorities of another jurisdiction;
(11) Engaging in sexual misconduct. For the purposes of this subdivision, sexual misconduct includes:
(A) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual, while an Occupational Therapist or Occupational Therapy Assistant/patient relationship exists with that person; or
(B) Making sexual advances, requesting sexual favors or engaging in physical contact of a sexual nature with patients or clients;
(12) Aiding or abetting a person who is not licensed as an Occupational Therapist or Occupational Therapy Assistant in this state and who directly or indirectly performs activities requiring a license;
(13) Abandoning or neglecting a patient or client under and in need of immediate professional care without making reasonable arrangements for the continuation of care; or
(14) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time; or
(7) Other disciplinary action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-28-17. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, the administrative law judge shall prepare a proposed written order at the conclusion of a hearing containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or permittee has violated any provision of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-28-18. Judicial review.
Any licensee or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-28-19. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee or permittee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-28-20. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
§30-28-21. Effective dates of certain provisions.
The provisions of this article as amended and reenacted during the regular session of 2009, except for the provisions of sections seven, sixteen and nineteen, are effective as of July 1, 2009.

The bill (Eng. Com. Sub. for H. B. No. 2309), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2335, Relating to the federal "Yellow Ribbon G. I. Education Enhancement Program".
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2412, Providing certain county commissions with authority to regulate the location of businesses offering exotic entertainment.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page three, section three-jj, line twenty-three, after the word "entertainment" by changing the period to a colon and inserting the following proviso: Provided, That no ordinance enacted pursuant to this section shall effect any exotic entertainment business which is operating prior to the date this ordinance is enacted.
The following amendments to the bill, from the Committee on the Judiciary, were next reported by the Clerk, considered simultaneously, and adopted:
On page four, after section three-jj, by adding the provisions of Engrossed Senate Bill No. 251;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §7-1-3jj of the Code of West Virginia, 1931, as amended, be amended; that said code be amended by adding thereto a new article, designated §13-2H-1, §13-2H-2, §13-2H-3, 13-2H-4, §13-2H- 5, §13-2H-6, §13-2H-7, §13-2H-8, §13-2H-9, §13-2H-10 and §13-2H-11; and that §29-22C-27 of said code be amended and reenacted, all to read as follows:.
The bill (Eng. Com. Sub. for H. B. No. 2412), as amended, was then ordered to third reading.
Eng. House Bill No. 2485, Allowing pharmacy interns to vend pseudoephedrine and other chemical precursors of methamphetamine.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page three, section three, after line twenty-two, by inserting a new subdivision, designated subdivision (f), to read as follows:
(f) "Law-enforcement agencies" means and is limited to:
(1) The State Police and its members;
(2) A county sheriff and his or her law-enforcement deputies;
(3) A police department in any municipality as defined in section two, article one, chapter eight of this code; and
(4) A federal DEA official who is investigating the manufacture or distribution of methamphetamine.;
And relettering the remaining subdivisions;
And,
On page twelve, section eight, after line twenty-three, by adding a new subsection, designated subsection (d), to read as follows:
(d) Law-enforcement agencies shall have access to the central repository to determine those individuals who are purchasing a drug product containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or other designated precursor that may be used along with other substances as a component in the production and distribution of illegal methamphetamine in an amount greater than the amount legally allowed.
The bill (Eng. H. B. No. 2485), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2528, Updating the regulation of the practice of forestry.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-19-1, §30-19-2, §30-19-3, §30-19-4, §30-19-5, §30-19- 6, §30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto six new sections, designated §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16 and §30-19-17, all to read as follows:

ARTICLE 19. FORESTERS.
§30-19-1. Use of descriptive title restricted.
(a) No person may use in connection with his or her name or otherwise assume, use or advertise any title or description tending to convey the impression that he or she is a registered forester or registered forestry technician unless he or she is certified in accordance with this article.
(b) Nothing contained in this article shall be construed as preventing any person, firm, partnership or corporation from practicing forestry, managing woodlands or forests, removing any products or planting trees on any land, in any manner desired.
§30-19-2. Applicable law.
The practice of forestry and the State Board of Registration of Foresters are subject to article one of this chapter, this article, and any rules promulgated hereunder.

§30-19-3. Definitions.
As used in this article, the following words and terms have the following meanings:
(a) "Board" means the State Board of Registration of Foresters.
(b) "Certificate" means a certificate issued to practice as a registered forester or registered forestry technician.

(c) "Certification" means a certificate issued under the provisions of this article .
(d) "Certified" means a person holding a certification issued under the provisions of this article.
(e) "Forester" means a person who has acquired specialized forestry training by reason of his or her knowledge of the natural sciences, mathematics, silviculture, forest protection, forest management, forest economics and forest utilization, acquired by professional forestry education and practical experience.
(f) "Forester-in-training" or "forestry technician-in- training" means a person who possesses the necessary educational qualifications as prescribed in this article for certification, but who has not completed the experience requirements in the field of forestry as required for certification.
(g) "Forestry" means the professional practice embracing the science, business, and the art of creating, conserving and managing forests and forestlands for the sustained use and enjoyment of their resources, material or other forest produce.
(h) "Practice of forestry" means professional forestry services, including the consultation, investigation, evaluation, planning or responsible supervision of any forestry activities when such professional service requires the application of forestry principles and techniques.
(i) "Permit" means a document issued as evidence of qualification to practice as a forester-in-training or forestry technician-in-training under this article.
(j) "Permitee" means a person holding a permit issued under the provisions of this article.
(k) "Registered forester" means a forester certified under this article.
(l) "Registered forestry technician" means a forestry technician certified under this article.
§30-19-4. State Board of Registration of Foresters.
(a) The State Board of Registration of Foresters is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advise and consent of the Senate,
a registered forestry technician to replace the board member whose term ends on June 30, 2009.
(c) Commencing July 1, 2009,
the board shall consist of the following five members:
(1) Four registered foresters; and
(2) One registered forestry technician.
(d) Each member shall be appointed by the Governor, by and with the consent of the Senate
, from five nominees recommended by the West Virginia Division of the Society of American Foresters. The term is for five years.
(e) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.
(f) Each member of the board shall be a resident of West Virginia during the appointment term.
(g) Each member must have been certified in this state for a period of not less than three years prior to his or her appointment and must have engaged in the practice of forestry for at least ten years.
(h) Each member
shall maintain an active certification with the board.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A member of the board
immediately and automatically forfeits membership to the board if his or her certification has been suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as chairperson and one member as secretary who shall serve at the will and pleasure of the board.
(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(m) A majority of the members serving on the board constitutes a quorum.
(n) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.
(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-19-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for a certification or permit;
(3) Establish procedures for submitting, approving and rejecting applications for a certification or permit;
(4) Determine the qualifications of any applicant for a certification or permit;
(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a certificate;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;
(8) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce this article;
(9) Investigate alleged violations of this article, legislative rules, orders and final decisions of the board;
(10) Conduct disciplinary hearings of persons regulated by the board;
(11) Determine disciplinary action and issue orders;
(12) Institute appropriate legal action for the enforcement of this article;
(13) Maintain an accurate registry of names and addresses of all persons regulated by the board;
(14) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(15) Establish, by legislative rule, the continuing education requirements for certificate holders and permittees; and
(16) Propose rules in accordance with article three, chapter twenty-nine-a of this code to implement this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under this article;
(2) Define, by legislative rule, the fees charged under this article;
(3) Issue, renew, deny, suspend, revoke or reinstate a certification or permit;
(4) Sue and be sued in its official name as an agency of this state;
(5) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and
(6) Take all other actions proper to effectuate the purposes of this article.
§30-19-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, to implement this article, including:
(1) Standards and requirements for a certification and permit;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(4) Educational and experience requirements, and the passing grade on the examination;
(5) Standards for ethical conduct;
(6) Procedures for the issuance and renewal of a certification and permit;
(7) A fee schedule;
(8) Continuing education requirements for a certificate holder and permittee;
(9) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a certificate holder or permittee;
(10) Requirements for inactive or revoked certificate and permit; and
(11) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on the effective date of this article shall remain in effect until amended or repealed, and references to former enactments of this act are interpreted to mean this article.
§30-19-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Foresters Fund", which fund is continued. The fund shall be used by the board for the administration of this article. Except as provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.
§30-19-8. General requirements to be certified as a registered forester.

(a) To be eligible to be certified as a registered forester, the applicant must:
(1) Be of good moral character;
(2) Have a high school diploma or its equivalent;
(3) Have obtained either:
(A) Completion of a four-year degree program or masters degree program in professional forestry, accredited by the Society of American Foresters and have two years related experience in the field of forestry; or
(B) Completion of a two-year technical forestry program in a program accredited or recognized by the Society of American Foresters, completion of a bachelor's degree in a field used in the practice of forestry as approved by the board and four years related experience in the field of forestry;
(4) Successfully pass an examination approved by the board.
(b) Those persons licensed by the board as a forester as of the effective date of this section are not required to take the examination.
§30-19-9. General requirements to be registered forestry technician.

To be eligible to be certified as a registered forestry technician, the applicant must:
(1) Be of good moral character;
(2) Have a high school diploma or its equivalent;
(3) Graduate from a two-year technical forestry program accredited or recognized by the Society of American Foresters;
(4) Complete four years of related experience in the field of forestry.
§30-19-10. Qualifications for permit as a forester-in-training or a forestry technician-in-training.

(a) The board may issue a permit to practice as a forester- in-training or a forestry technician-in-training to an applicant who meets all the requirements for certification, except the experience requirements of paragraph (A) or (B), subdivision three, subsection (a), section eight or subdivision four, section nine.
(b) A permit to practice as a forester-in-training or forestry technician-in-training may be renewed annually for a period not to exceed five years. The board may extend the five year limitation if the board finds the applicant experienced an undue hardship which prevented the attainment of the required experience.
§30-19-11. License from another state.
The board may issue a certification to a person as a registered forester in this state, without requiring an examination, to an applicant from another jurisdiction who:
(1) Is not a resident of this state;
(2) Is of good moral character;
(3) Holds a valid forestry license or other authorization to practice forestry in another jurisdiction which meets requirements that are substantially equivalent to the certification requirements set forth in this article;
(4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her authorization, and has never had his or her authorization revoked;
(5) Has not previously failed an examination for certification in this state;
(6) Has paid all the applicable fees; and
(7) Has completed such other action as required by the board.
§30-19-12. Renewal requirements.
(a) All persons regulated under the provisions of this article shall annually before January 1, renew his or her certification or permit by completing a form prescribed by the board and submit any other information required by the board.
(b) At least thirty days prior to July 1 of each year, the board shall mail to every person regulated under the provisions of this article an application for renewal.
(c) The board shall charge a fee for each renewal of a certification or permit and may charge a late fee for any renewal not paid in a timely manner.
(d) The board shall require as a condition for the renewal of a certification or permit that each person regulated under the provisions of this article complete continuing education.
(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a certification or permit.
§30-19-13. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the certificate holder or permittee.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the certification or permit or the imposition of sanctions against the certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the certification or permit of, impose probationary conditions upon or take disciplinary action against, any certificate holder or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a certification or permit by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct as defined by legislative rule of the board;
(4) Violating this article or lawful order or rule of the board;
(5) Having had a certificate or permit revoked or suspended, other disciplinary action taken, or an application for certification or permit or other authorization refused, revoked or suspended by the proper authorities of another jurisdiction; or
(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the certificate holder or permitee to report to the board for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-19-14. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the certificate holder or permittee has violated this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-19-15. Judicial review; appeal to Supreme Court of Appeals.
Any certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-19-16. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a certificate holder or permitee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-19-17. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

The bill (Eng. Com. Sub. for H. B. No. 2528), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2531, Updating the regulation of the practice of barbers and cosmetologists.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice barbering, barber permanent waving, cosmetology, aesthetics or nail care in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician, unless the person has been licensed under the provisions of this article, and the license has not expired, been suspended or revoked.
(b) No salon, except through a licensee, may render any service or engage in any activity which if rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.
(c) No school, except through a licensee, may instruct, render any service or engage in any activity which if taught, rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.
§30-27-2. Applicable law.
The practices licensed under the provisions of this article and the Board of Barbers and Cosmetologists are subject to the provisions of article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-27-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) "Aesthetics" or "esthetics" means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
(1) Administering cosmetic treatments to enhance or improve the appearance of the skin, including cleansing, toning, performing effleurage or other related movements, stimulating, exfoliating or performing any other similar procedure on the skin of the human body or scalp;
(2) Applying, by hand or with a mechanical or electrical apparatus, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person's face, neck, back, shoulders, hands, elbows and feet up to and including the knee;
(3) The rubbing, cleansing, exercising, beautifying or grooming of another person's face, neck, back, shoulders, hands, elbows and feet up to and including the knee;
(4) The waxing, tweezing and threading of hair on another person's body;
(5) The wrapping of another person's body in a body wrap;
(6) Applying artificial eyelashes and eyebrows; and
(7) The lightening of hair on the body except the scalp.
(b) "Aesthetician" or "esthetician" means a person licensed under the provisions of this article who engages in the practice of aesthetics.
(c) "Applicant" means a person making application for a professional license, license, certificate, registration, permit or renewal under the provisions of this article.
(d) "Barber" means a person licensed under the provisions of this article who engages in the practice of barbering.
(e) "Barbering" means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
(1) Shaving, shaping and/or trimming the beard;
(2) Cutting, singeing, shampooing, arranging, dressing, tinting, bleaching, or applying lotions or tonics on human hair, or a wig or hairpiece; and
(3) Applications, treatments or rubs of the scalp, face, or neck with oils, creams, lotions, cosmetics, antiseptics, powders, or other preparations in connection with the shaving, cutting or trimming of the hair or beard.
(f) "Barber crossover" or "cosmetologist crossover" is a person who is licensed to perform barbering and cosmetology.
(g) "Barber permanent waving" means the following acts done on the human body for compensation and not for the treatment of disease:
(1) The bleaching or tinting of hair; and

(2) The permanent waving of hair.

(h) "Barber permanent wavist" means a person licensed to perform barbering and barber permanent waving.
(i) "Board" means the West Virginia Board of Barbers and Cosmetologists.
(j) "Certificate" means an instructor certificate to teach in a school under the provisions of this article.
(k) "Certificate holder" means a person certified as an instructor to teach in a school under the provisions of this article.
(l) "Cosmetologist" means a person licensed under the provisions of this article who engages in the practice of cosmetology.
(m) "Cosmetology" means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
(1) Cutting, styling, shaping, arranging, braiding, weaving, dressing, adding extensions, curling, waving, permanent waving, relaxing, straightening, shampooing, cleansing, singeing, bleaching, tinting, coloring, waxing, tweezing, or similarly work on human hair, or a wig or hairpiece, by any means, including hands, mechanical or electrical devices or appliances;
(2) Nail care;

(3) Applying by hand or with a mechanical or electrical device or appliance, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person's face, neck, shoulders, hands, elbows and feet up to and including the knee;
(4) The rubbing, cleansing, exercising, beautifying or grooming of another person's face, neck, shoulders, hands, elbows and feet up to and including the knee;
(5) The wrapping of another person's body in a body wrap; and

(6) Performing aesthetics.
(n) "General supervision" means:
(1) For schools, a master or certified instructor is on the premises and is quickly and easily available; or
(2) For salons, a professional licensee is on the premises and is quickly and easily available.
(o) "Hair braiding" means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease: Braiding, plaiting, twisting, wrapping, threading, weaving, extending or locking of natural human hair by hand or mechanical device.
(p) "License" means a professional license, a salon license or a school license.
(q) "Licensee" means a person, corporation or firm holding a license issued under the provisions of this article.
(r) "Nail care" means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
(1) The cleansing, dressing, or polishing of nails of a person (2) Performing artificial nail service; and

(3) The cosmetic treatment of the feet up to the knee and the hands up to the elbow.
(s) "Nail technician" or "manicurist" means a person licensed under the provisions of this article who engages in the practice of nail care.
(t) "Permit" means a work permit.
(u) "Permitee" means a person holding a work permit.
(v) "Professional license" means a license to practice as a aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician.
(w) "Registration" means a registration issued by the board to a person who rents or leases a booth or chair from a licensed salon owner and/or operator or a registration issued by the board to a person who is a student in a school.
(x) "Registrant" means a person who holds a registration under the provisions of this article.
(y) "Salon" means a shop or other facility where a person practices under a professional license.
(z) "Salon license" means a license to own and operate a salon.
(aa) "School" means a facility to educate persons to be licensed with professional licenses under the provisions of this article.
(bb) "School license" means a license to own and operate a school.
(cc) "Student registration" means a registration issued by the board to a student to study at a school licensed under the provisions of this article.
§30-27-4. Board of Barbers and Cosmetologists.
(a) The West Virginia Board of Barbers and Cosmetologists is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advice and consent of the Senate:
(1) One person who is a licensed cosmetologist for a term of five years;
(2) One person who is a licensed barber for a term of five years;
(3) One person who is a licensed barber crossover or a licensed barber permanent wavist for a term of four years;
(4) One person who is a licensed aesthetician for a term of four years;
(5) One person who is a licensed nail technician for a term of four years;
(6) One person who is a licensed cosmetologist for a term of three years; and
(7) One citizen member, who is not licensed under the provisions of this article and who does not perform any services related to the practice of the professions regulated under the provisions of this article, for a term of three years.
(c) After the initial appointment term, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.
(d) Commencing July 1, 2009, the board shall consist of the following seven members:
(1) Two licensed cosmetologists;
(2) One licensed barber;
(3) One licensed barber crossover or licensed barber permanent wavist;
(4) One licensed aesthetician;
(5) One licensed nail technician; and
(6) One citizen member.
(e) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified. A member serving on the board on June 30, 2009, may be reappointed in accordance with the provisions of this section.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(m) A majority of the members of the board constitutes a quorum.
(n) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state.
§30-27-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, permits, certificates and registrations;
(3) Establish procedures for submitting, approving and rejecting applications for licenses, permits, certificates and registrations;
(4) Determine the qualifications of any applicant for licenses, permits, certificates and registrations;
(5) Prepare, conduct, administer and grade examinations for professional licenses and certificates;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive director;
(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators/inspectors and contracted employees necessary to enforce the provisions of this article: Provided, That any investigator/inspector employed by the board on July 1, 2009, shall retain their coverage under the classified service, including job classification, job tenure and salary, until that person retires or is dismissed: Provided however, That nothing may prohibit the disciplining or dismissal of any investigator/inspector for cause;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
(11) Establish the criteria for the training of investigators/inspectors;
(12) Set the requirements for investigations and inspections;
(13) Conduct disciplinary hearings of persons regulated by the board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of the provisions of this article;
(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(18) Establish the continuing education requirements for professional licensees and certificate holders;
(19) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, permits, certificates and registrations;
(20) Establish a fee schedule;
(21) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and
(22) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Establish joint licenses;
(2) Contract with third parties to administer the examinations required under the provisions of this article;
(3) Sue and be sued in its official name as an agency of this state; and,
(4) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-27-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses, permits, certificates and registrations;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, permits, certificates and registrations;
(8) A fee schedule;
(9) Continuing education requirements for professional licensees and certificate holders;
(10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, permitees, certificate holders and registrants;
(11) Designating the regions for investigators/inspectors;
(12) Criteria for the training of investigators/inspectors;
(13) Requirements for investigations and inspections;
(14) Requirements for inactive or revoked licenses, permits, certificates and registrations;
(15) Establishing the training program and requirements for instructors for schools licensed under this article;
(16) Establishing operating procedures for salons; and
(17) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2009, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
(c) The board is authorized to file an emergency rule for the implementation of its fee schedule in 2009.
§30-27-7. Fees; special revenue account; administrative fines.
(a) All fees in effect on January 1, 2009, shall remain in effect until they are amended or repealed by legislative rule or statute.
(b) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Barbers and Beauticians Special Fund", which is continued and shall be known as the "Board of Barbers and Cosmetologists Special Fund". The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(c) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.
§30-27-8. Professional license requirements.

(a) An applicant for a professional license to practice as a aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician shall present satisfactory evidence that he or she:
(1) Is at least eighteen years of age;
(2) Is of good moral character;
(3) Has a high school diploma, a GED, or has passed the "ability to benefit test" approved by the United States Department of Education;
(4) Has graduated from a school which has been approved by the board;
(5) Has passed an examination that tests the applicant's knowledge of subjects specified by the board: Provided, That the board may recognize a certificate or similar license in lieu of the examination or part of the examination that the board requires;
(6) Has paid the applicable fee;
(7) Presents a certificate of health from a licensed physician;
(8) Is a citizen of the United States or is eligible for employment in the United States; and
(9) Has fulfilled any other requirement specified by the board.
(b) A license to practice issued by the board prior to July 1, 2009, shall for all purposes be considered a professional license issued under this article: Provided, That a person holding a license issued prior to July 1, 2009, must renew the license pursuant to the provisions of this article.
§30-27-9. Professional license from another state; license to practice in this state.

(a) The board may issue a professional license to practice to an applicant of good moral character who holds a valid license or other authorization to practice in that particular field from another state, if the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state and passed an examination that is substantially equivalent to the examination required in this state;
(2) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;
(3) Has not previously failed an examination for professional licensure in this state;
(4) Has paid the applicable fee;
(5) Is a citizen of the United States or is eligible for employment in the United States;
(6) Has presented a certificate of health issued by a licensed physician; and
(7) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may examine a person by a written, oral or skills test for licensing under this section, and may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.
(c) The provisions of this section do not apply to nail technicians or manicurists from another state or jurisdiction. A nail technician or manicurist from another state or jurisdiction is required to show that he or she has completed the required curriculum and has successfully passed the board's practical skills examination to apply for licensure under the provisions of this article.
§30-27-10. Professional license and certificate renewal requirements.

(a) A professional licensee and certificate holder shall annually or biennially on or before January 1, renew his or her professional license or certificate by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.
(b) The board shall charge a fee for each renewal of a license or certificate, and a late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal of a professional license or certificate that each licensee or certificate holder complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license or certificate.
§30-27-11. Work permit.
(a) The board may issue a work permit to practice to an applicant who:
(1) Has graduated from a school approved by the board or has completed the course requirements in a specific field;
(2) Is waiting to take the examination;
(3) Has employment in the field in which he or she applied to take the examination and is working under the general supervision of a professional licensee;
(4) Has paid the work permit fee;
(5) Has presented a certificate of health issued by a licensed physician;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Meets all the other requirements specified by the board.
(b) A work permit expires at the end of the month after issuance following the next examination in the specific field. A work permit may be renewed once.
(c) While in effect, a work permitee is subject to the restrictions and requirements imposed by this article.
§30-27-12. Student registration.
(a) Prior to commencing studies in a school licensed under the provisions of this article, a student shall acquire a student registration issued by the board.
(b) An applicant for a student registration shall present satisfactory evidence that he or she:
(1) Is a student in an approved school or enrolled in an approved course;
(2) Is of good moral character;
(3) Has paid the required fee;
(4) Has presented a certificate of health issued by a licensed physician; and
(5) Is a citizen of the United States or is eligible for employment in the United States.
(c) The student registration is good during the prescribed period of study for the student.
(d) The student may perform acts constituting barbering, barber permanent waving, cosmetology, aesthetics or nail care in a school under the general supervision of a master or certified instructor.
§30-27-13. Display of professional license and permits.
(a) The board shall prescribe the form for a professional license and work and student permits, including a photograph, and may issue a duplicate license or permit, upon payment of a fee.
(b) Every professional licensee and work permitee shall display his or her license or permit in a conspicuous place at his or her work station.
(c) Every student shall have available his or her student permit and be able to produce it upon request.
(d) Every professional licensee, work permitee or student must present such license, permit or registration to an investigator/inspector or a board member upon request.
§30-27-14. Health certificate requirements.
(a) It is unlawful for a person to practice as a professional licensee, be a permitee or be a certified instructor while having an infectious, contagious or communicable disease.
(b) The board may, with cause, require a professional licensee, permitee or certified instructor to submit to a physical examination and file a certificate of health.
§30-27-15. School license requirements.
(a) Any person, firm or corporation, whether public or private, and whether organized for profit or not, must have a school license issued by the board to own and/or operate a school.
(b) The board may issue a school license to own and/or operate a school, if the applicant meets the following requirements:
(1) A completed application in writing on forms prescribed by the board, which forms have been signed and verified by the applicant;
(2) Is professionally competent and financially responsible;
(3) Posts a bond in an amount specified by the board;
(4) There is proof that adequate physical facilities will be available for the school;
(5) The proposed school has been inspected by an investigator/inspector to determine whether it is properly fitted and equipped for instruction in the specific fields to be offered;
(6) That persons teaching or instructing at the school are certified by the board as fully qualified instructors; and
(7) Has paid the appropriate fees.

(c) If an applicant desires to own and/or operate more than one school, a separate application shall be made and a separate school license shall be issued for each school.
(d) The board may suspend, revoke or refuse to renew the school license of any school failing to meet the minimum standards and qualifications required for the issuance of an original school license, as set out in this section.
(e) All school licenses must be renewed annually or biennially on or before January 1 and pay a renewal fee.
(f) A license to operate a school issued by the board prior to January 1, 2009, shall for all purposes be considered a school license issued under this article: Provided, That a person holding a school license issued prior to January 1, 2009, must renew the license pursuant to the provisions of this article.
(g) The school license shall be permanently displayed in the school, and a suitable sign shall be displayed at the main entrance of the school plainly indicating what type of school is being operated.
§30-27-16. Certification requirements to be an instructor in a school.

(a) The board may issue a certificate to be an instructor in a school to an applicant who meets the following requirements:
(1) Meets the educational requirements established by the board;
(2) Has completed the required instructor's training;
(3) Has passed the instructor examination;
(4) Has paid the appropriate fees;

(5) Presents a certificate of health from a licensed physician;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the board.
(b) All instructor certifications must be renewed annually or biennially on or before January 1, and pay a renewal fee.
(c) A certification to be an instructor issued by the board prior to January 1, 2009, shall for all purposes be considered a certification issued under this article: Provided, That a person holding a certification issued prior to January 1, 2009, must renew the certification pursuant to the provisions of this article.
(d) An instructor with an expired certificate must comply with the following to renew his or her certificate:
(1) Notify the board that he or she wants to be placed on inactive status; or
(2) Pay all lapsed renewal fees;

(3) Present a new certificate of health; and

(4) Meet the qualifications for certification set out in this article.
(e) A certified instructor is not required to have an active professional license, unless the instructor is in fact practicing outside the scope of his or her employment as an instructor.
§30-27-17. Salon license requirements.

(a) Prior to opening a salon, any person, firm or corporation owning and/or operating a salon, and any person, firm or corporation practicing in a field authorized by this article, shall meet the following requirements to acquire a salon license to do business:
(1) The salon has been approved by the board as having met all the requirements and qualifications for the place of business as are required by this article;
(2) Notify the board, in writing, at least twenty days before the proposed opening date, so there can be an inspection of the salon: Provided, That if an inspection is not made within ten days of the opening of the salon, or a salon license to open has not been granted or refused, then the salon may open provisionally subject to a later inspection and to all other provisions and rules provided for in this article;
(3) Pay all applicable fees;
(4) All rooms, facilities, bathrooms, toilets and adjoining rooms used in the place of business are kept clean, sanitary, well lighted and ventilated at all times. The use of chunk alum, powder puffs and styptic pencils in any shop is prohibited;
(5) Every professional licensee or permitee in the place of business thoroughly cleans his or her hands with soap and water immediately before serving any patron; and
(6) Every patron is served with clean, freshly laundered linen that is kept in a closed cabinet used for that purpose only. All linens, immediately after being used, must be placed in a receptacle used for that purpose only.
(b) All rules shall be kept posted in a conspicuous place in each place of business.
(c) All salon licenses must be renewed annually or biennially on or before July 1 and pay a renewal fee.
(d) A license to operate a salon issued by the board prior to July 1, 2009, shall for all purposes be considered a salon license issued under this article: Provided, That a person holding a license issued prior to July 1, 2009, must renew the license pursuant to the provisions of this article.
(e) The salon license shall be permanently displayed in the salon, and a suitable sign shall be displayed at the main entrance of the salon which shall plainly indicate what type of salon is being operated.
§30-27-18. Salon management requirements.
(a) Every salon in this state offering the services set forth in this article shall be operated under the supervision and management of a professional licensee licensed under this article.
(b) Any services set forth in this article may be conducted within the same salon. A suitable sign shall be displayed at the main entrance of all salons plainly indicating the business conducted therein.
§30-27-19. Booth or chair rental registration requirements.

(a) Any professional licensee who elects to rent or lease a booth or chair from a licensed salon owner and/or operator must comply with the following to receive a registration from the board:
(1) Register with the board;

(2) Register with the State Tax Division and present the registration to the board;
(3) Pay a registration fee;

(4) Notify the board of the length of any rental or lease agreement;
(5) State the name of the person or salon from which a chair or booth is being rented or leased; and
(6) State the effective date of the rental or lease.

(b) If a person registered with the board pursuant to this section elects to move from one salon to rent or lease a chair or booth from another salon, then he or she must register again with the board and pay a fee.
(c) Each licensed salon owner and/or operator who elects to rent or lease chairs or booths shall notify the board in writing of such rental or lease within ten days of the effective date of the rental or lease.
(d) The board shall quarterly notify the State Tax Commissioner of all persons registered pursuant to this section during the previous quarter. Such notice shall be in writing and shall include the following:
(1) The names of all the registered professional licensees;

(2) The names of the salons where space is being rented or leased; and
(3) The length of time of each rental or lease agreement.
(e) All registrations must be renewed annually or biennially on or before July 1 and pay a renewal fee.
(f) A registration to rent or lease a booth or chair issued by the board prior to July 1, 2009, shall for all purposes be considered a registration issued under this article: Provided, That a person holding a registration to rent or lease a booth or chair issued prior to July 1, 2009, must renew the registration pursuant to the provisions of this article.
§30-27-20. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee, registrant or certificate holder.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, permit, registration or certification or the imposition of sanctions against the licensee, permittee, registrant or certificate holder. Any hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, permit, registration or certification of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee, registrant or certificate holder for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license, permit, registration or certification by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee, registrant or certificate holder to report to the board for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-27-21. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-27-22. Judicial review.
Any licensee, permittee, registrant or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-27-23. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, permitee, registrant or certificate holder has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-27-24. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
The bill (Eng. Com. Sub. for H. B. No. 2531), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2566, Expanding applicability of increased penalties for crimes against certain protected persons.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2690, Updating language pertaining to indemnity for the death of diseased or infected animals.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2701, Relating to an escape of any person from the custody of the Division of Juvenile Services.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
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 §61-5-12b, to read as follows:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-12b. Escape from custody of the Director of Juvenile Services; penalty venue.

(a) Any person in the custody of the director of Division of Juvenile Services, regardless of where he or she confined or detained, shall be guilty of a misdemeanor, and upon conviction, shall be confined in jail, or in the case of a person in juvenile facility, for not more than one year.
(b) Venue for the prosecution of a violation of this section shall be in the county in which the escape occurs: Provided, That if the person is under the age of eighteen, upon agreement of all parties, the prosecution of the escape may be transferred to the circuit court from which the juvenile was originally committed.
The bill (Eng. Com. Sub. for H. B. No. 2701), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2723, Authorizing liens by municipalities and requiring administrative procedures for the assessment and collection of delinquent municipal fees.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Government Organization, were reported by the Clerk, considered simultaneously, and adopted:
O
n page three, section thirteen, lines twenty-five through twenty-nine, by striking out the words "A municipality has authority to enact an ordinance permitting it to file a lien pursuant to this section for unpaid fire, police or street fees on real property located within the municipal corporate limits as to which such fees are delinquent." and inserting in lieu thereof the following: A municipality has authority to enact an ordinance, pursuant to this section, permitting it to file a lien on real property located within the municipal corporate limits for unpaid and delinquent fire, police or street fees.;
On page five, section thirteen, line sixty-one, by striking out "(d)" and inserting in lieu thereof "(e)";
And,
On page five, section thirteen, line sixty-one, after the word "section" by striking out the comma and the words "for the publication of the ordinance after it is adopted or substantially amended".
The bill (Eng. Com. Sub. for H. B. No. 2723), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2788, Protecting incapacitated adults from abuse or neglect by a caregiver.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, unanimous consent being granted, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2832, Relating to critical skills evaluations for students in grades three and eight.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-10. Critical skills instructional support programs for third and eighth graders.

(a) The Legislature finds that:
(1) In the early childhood through intermediate grade levels, ensuring that each student masters the content and skills needed for mastery at the next higher grade level is critically important for student success;
(2) Students who do not demonstrate grade-level mastery in reading, language arts and mathematics become increasingly less likely to succeed at each successively higher grade level;
(3) State board policy requires every school to establish a student assistance team that reviews student academic needs that have persisted despite being addressed by instruction and intervention and requires schools to implement in an equitable manner programs during and after the instructional day at the appropriate instructional levels that contribute to the success of students; and
(4) Grades three and eight are critical transition points for additional intervention strategies that reinforce the preparation of students who are not prepared fully for success at the next grade level.
(b) The state board shall, in accordance with the provisions of article three-b, chapter twenty-nine-a of this code, promulgate legislative rules as necessary to effectuate the provisions of this section on or before November 1, 2009. The rules shall become effective July 1, 2010, and shall provide for at least the following:
(1) Encouraging and assisting county boards in establishing and operating critical skills instructional support programs during and after the instructional day and during the summer for students in grades three and eight who in the judgment of the student assistance team are not mastering the content and skills in reading, language arts and mathematics adequately for success at the next grade level and who are recommended by the student assistance team for additional academic help through the programs;
(2) Maximizing parental involvement in supporting the critical skills development of their children in reading, language arts and mathematics through critical skills instructional support programs;
(3) Ensuring the employment of qualified teachers and support personnel to provide instruction to students enrolled in critical skills instructional support programs;
(4) Creating a formula or grant-based program for the distribution of funds appropriated specifically for the purposes of this section or otherwise available for the support of in-school, after-school and summer critical skills instructional support programs;
(5) Providing transportation and healthy foods for students required to attend after-school and summer critical skills instructional support programs or supervision at the school that accommodates the typical work schedules of parents; and
(6) Receiving from county boards any applications and annual reports required by rule of the state board.
(c) Effective July 1, 2010, a student in grades three or eight who is recommended by the student assistance team for additional academic help in one or more of the subjects of reading, language arts and mathematics through a critical skills instructional support program may be required to attend a summer critical skills instructional support program as a condition for promotion if:
(1) The student has been provided additional academic help through an in-school or after-school critical instructional support program and, prior to the end of the school year, the student assistance team recommends that further additional academic help is needed for the student to be successful at the next grade level; and
(2) Adequate funding is provided by the State Board for the administration and operation of the program;
(d) Effective July 1, 2010, county boards shall provide suitable educational facilities, equipment and services to support critical skills instructional support programs established pursuant to this section. Summer programs may be provided at a central location for third and eighth graders who qualify for the program.
(e) Nothing prohibits the grade level retention of a student based upon the sole judgement of the teacher of the students mastery of the subject matter and preparation for the subject matter at the next higher grade level.
(f) Nothing in this section may be construed to affect the individualized education plans of exceptional students.

(g) Beginning July 1, 2009:
(1) Each county board shall prepare to implement the provisions of this section and the provisions of the state board rule required by subsection (b) of this section. The preparations shall at least include planning, ensuring the student assistance teams are established as currently required by state board policy and performing a needs assessment; and
(2) With the needs assessment performed by each county board and other necessary information, the state board shall determine an accurate cost for fully implementing the provisions of this section. The state board also shall determine the amount of funds available from sources other than Legislative appropriation.
(h) County boards are encouraged to establish and operate critical skills instructional support programs during the summer of 2010.
The bill (Eng. Com. Sub. for H. B. No. 2832), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2870, Extending the deadline of the buyback provision provided under the Teachers' Defined Contribution Retirement System to the State Teachers Retirement System.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Foster, and by unanimous consent, the bill was advanced to third reading with the right for amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2916, Relating to the Emergency Medical Services Act.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2926, Establishing a procedure for challenging a candidate's qualifications for elected office.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §3-5-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and to amend said code by adding thereto two new sections, designated §7-1-1b and §7-1-15, all to read as follows:
CHAPTER 3. ELECTIONS.

ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
(a) At each primary election, the candidate or candidates of each political party for all offices to be filled at the ensuing general election by the voters of the entire state, of each congressional district, of each state senatorial district, of each delegate district, of each judicial circuit of West Virginia, of each county, and of each magisterial district in the state shall be nominated by the voters of the different political parties, except that no presidential elector shall be nominated at a primary election.
(b) In primary elections a plurality of the votes cast shall be sufficient for the nomination of candidates for office. Where only one candidate of a political party for any office in a political division, including party committeemen and delegates to national conventions, is to be chosen, or where a judicial circuit has two or more circuit judges and one circuit judge is to be chosen for each numbered division within the circuit, the candidate receiving the highest number of votes therefor in the primary election shall be declared the party nominee for such office. Where two or more such candidates are to be chosen in the primary election, the candidates constituting the proper number to be so chosen who shall receive the highest number of votes cast in the political division in which they are candidates shall be declared the party nominees and choices for such offices, except that:
(1) Candidates for the office of commissioner of the county commission shall be nominated and elected in accordance with the provisions of section ten, article nine of the Constitution of the state of West Virginia and the requirements of section one-b, article one, chapter seven;
(2) Members of county boards of education shall be elected at primary elections in accordance with the provisions of sections five and six of this article;
(3) Candidates for the House of Delegates shall be nominated and elected in accordance with the residence restrictions provided in section two, article two, chapter one of this code; and
(4) In judicial circuits having numbered divisions, each numbered division shall be tallied separately and the candidate in each division receiving a plurality of the votes cast shall be declared the party nominee for the office in that numbered division.
(c) In case of tie votes between candidates for party nominations or elections in primary elections, the choice of the political party shall be determined by the executive committee of the party for the political division in which such persons are candidates.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-1b. Legislative findings; qualifications for county commissioners.

(a) The Legislature finds that:
(1) There is confusion concerning when a candidate for county commission must be a resident of the magisterial district he or she wants to represent;
(2) The supreme court has discussed the residency requirement in several cases and has conflicting interpretations;
(3) It is imperative that this issue be permanently resolved at the time of filing to ensure the citizens have choice on the ballot;
(4) It is essential the citizens know they are voting for a person who is qualified to be a candidate; and
(5) With the expense of holding an election, tax payer moneys should not be wasted of officials who could never serve.
(b) A candidate for the office of county commissioner shall be a resident from the magisterial district for which he or she is seeking election:
(1) By the last day to file a certificate of announcement pursuant to section seven, article five, chapter three of this code; or
(2) At the time of his or her appointment by the county executive committee or the chairperson of the county executive committee.
§7-1-15. Challenge of candidate for county commission; residency.

(a) (1) Any person desiring to contest the qualifications of another person whose nomination in the primary election, nomination by petition, or nomination by appointment to fill a vacancy on the ballot, has been certified and filed pursuant to article five of this chapter as a candidate for the office of county commission at a general election, shall file a verified petition specifically setting forth the grounds of the challenge not later than thirty days after the date of the primary election.
(2) The court may permit a petition to be filed after the thirtieth day after the primary election upon a finding that the petitioner was unable to discover the grounds for challenging the qualifications of the candidate prior to the thirtieth after the primary election despite the exercise of reasonable diligence.
(3) The petition shall be filed with the circuit court of the county in which the candidate is seeking office.
(b) The circuit court shall at the earliest possible date set the matter for hearing, but in no event shall the hearing be held later than thirty days after the filing of the petition.
(c) The matter shall be tried by the circuit judge, without a jury. After hearing the evidence, the circuit judge shall determine whether the candidate whose qualifications have been challenged is legally qualified to have his or her name placed upon the ballot in question. The circuit judge shall issue a written decision on each challenge by separately stating findings of facts, conclusions of law within ten days of the conclusion of the hearing.
(d) The burden of proof shall be upon the petitioner, who must show by a preponderance of the evidence of the record as a whole that the candidate is not qualified to be a candidate for county commission.
(e) Within five days after judgment is rendered by the circuit court, the petitioner or the candidate, or both, may file an appeal in the Supreme Court upon giving a cost bond in the sum of $300. The appeal shall be immediately docketed in the Supreme Court and shall be decided at the earliest possible date, as a preference case over all others.
(f) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate for county commission may be challenged prior to the time of his or her election. After any such person has been elected to public office, the election may be challenged as otherwise provided by law. After any person assumes an elective office, his or her qualifications to hold that office may be contested as otherwise provided by law.
The bill (Eng. Com. Sub. for H. B. No. 2926), as amended, was then ordered to third reading.
Eng. House Bill No. 2931, Removing a severance tax on timber for tax years 2010 through 2013.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page three, section three-b, line twenty-three, by striking out the word "three" and inserting in lieu thereof the word "two".
The bill (Eng. H. B. No. 2931), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2958, Increasing the fines for a trespassing conviction pursuant to certain circumstances.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2961, Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Plymale, as chair of the Committee on Education, and by unanimous consent, the unreported Education committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the bill was reported by the Clerk and adopted:
B y striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended, be repealed; that §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4, §18B-14- 5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code be repealed; that §5-6-4a of said code be amended and reenacted; that §18B-1B-4 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-1D-9; that §18B-2A-1 of said code be amended and reenacted; that §18B-2A-4 of said code be amended and reenacted; that §18B-2B-6 of said code be amended and reenacted; that §18B-4-6 of said code be amended and reenacted; that §18B-5-4 of said code be amended and reenacted; that §18B-10-8 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19- 14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18; and that §29-22-18 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 6. STATE BUILDINGS.
§5-6-4a. Review of real property contracts and agreements; master plan for office space.

(a) The Secretary of Administration shall provide to the Joint Committee on Government and Finance a copy of a contract or agreement for real property exceeding $1 million and a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property and the agent involved in the sale, at least thirty days prior to any sale, exchange, transfer, purchase, lease purchase, lease or rental of real property, any refundings of lease purchases, leases or rental agreements, any construction of new buildings and any other acquisition or lease of buildings, office space or grounds by any state agency, including the Higher Education Policy Commission but excepting the transactions of the Higher Education Policy Commission, Council for Community and Technical College Education, state institutions of higher education known as Marshall University and West Virginia University and the Division of Highways for state road purposes pursuant to article two-a, chapter seventeen of this code: Provided, That a contract or agreement for the lease purchase, lease or rental of real property by any state agency, where the costs of real property acquisition and improvements are to be financed, in whole or in part, with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.
(b) For renewals of contracts or agreements required to be reported by the provisions of this section, the Secretary of Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property.
(c) Within thirty days after receipt of the contract, agreement or report, the committee shall meet and review the contract, agreement or report.
(d) On or before the first day of July, two thousand six, the Secretary of Administration shall conduct an inventory of available office space and office space needs and shall develop and present a master plan for the utilization of office space for state agencies to the Joint Committee on Government and Finance.
(e) The governing boards of the state institutions of higher education known as Marshall University and West Virginia University shall provide to the Joint Committee on Government and Finance a copy of any contract or agreement for real property exceeding one million dollars and shall make available to the Joint Committee on Government and Finance upon request a summary of the terms of the contract or agreement, including the name of the owner of the property and the agent involved in the sale.
CHAPTER 18B. HIGHER EDUCATION.

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 and article one-d of this chapter. The Commission shall exercise its authority and carry out its responsibilities in a manner that is consistent and not in conflict with the powers and duties assigned by law to the West Virginia Council for Community and Technical College Education and the powers and duties assigned to the governing boards 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, shall:
(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 article one-d of this chapter and including specifically those goals and objectives pertaining to the compacts created pursuant to section two, article one-a seven, article one-d of this chapter and to develop and implement the master plan described in section nine of this article five, article one-d of this chapter for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the promulgation and implementation jointly with the Council of a financing policy rule for state institutions of higher education in West Virginia under its jurisdiction. The policy rule shall meet the following criteria:
(A) Provide for an adequate level of education educational and general funding for institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical resources and 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; Establish standards for evaluating institutions' requests for tuition and fee increases, other than at the state institutions of higher education known as Marshall University and West Virginia University;
(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;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to state policymakers:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative leadership and the Legislative Oversight Commission on Education Accountability;
(7) Jointly with the Council, promulgate legislative rules pursuant to article three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three, article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to measure institutional achievement towards progress in achieving state policy priorities and institutional missions pursuant to section two, article one-a seven, article one- d of this chapter;
(10) Annually report to the Legislature and to the Legislative Oversight Commission on Education Accountability during the January interim meetings meeting period on a date and at a time and location to be determined by the President of the Senate and the Speaker of the House of Delegates. The report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year, including, but not limited to, progress in meeting goals stated in the compacts and progress of the institutions and the higher education system as a whole in meeting the goals, and objectives, and priorities set forth in section one-a article one and article one-d of this chapter and contained in the Commission's master plan and institutional compacts;
(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) (B) The Commission's priorities established for new operating and capital investment investments needs pursuant to subdivision (11) of this subsection and the justification for such the priority;
(D) (C) Recommendations of the Commission for statutory changes needed necessary or expedient to further the achieve state goals and objectives; set forth in article one of this chapter
(11) Establish a formal process for identifying needs for capital investment capital investment needs and for determining priorities for these investments for consideration by the Governor and the Legislature as part of the appropriation request process pursuant to the provisions of article nineteen of this chapter; 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 project management 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;
(12) Develop standards and evaluate governing board requests for capital project financing in accordance with the provisions of article nineteen of this chapter;
(13) Ensure that governing boards manage capital projects and facilities needs effectively, including review and approval or disapproval of capital projects, in accordance with the provisions of article nineteen of this chapter;
(13) (14) Acquire legal services as that 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) (15) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) (16) 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) (17) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
(17) (18) Advise and consent in the appointment of the presidents of the institutions of higher education under its jurisdiction pursuant to section six of this article. The role of the Commission in approving an institutional president is to assure through personal interview that the person selected understands and is committed to achieving the goals and objectives as set forth in the institutional compact and in section one-a, article one of this chapter;
(18) (19) 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 shall 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) (20) Establish and implement the policy of the state to assure that parents and students have sufficient information at the earliest possible age on which to base academic decisions about what is required for students to be successful in college, other post-secondary education and careers related, as far as possible, to results from current assessment tools in use in West Virginia;
(20) (21) Approve and implement a uniform standard jointly with the Council to determine which students shall be placed in remedial or developmental courses. The standard shall be aligned with college admission tests and assessment tools used in West Virginia and shall be applied uniformly by the governing boards throughout the public higher education system. The chancellors shall develop a clear, concise explanation of the standard which they shall communicate to the State Board of Education and the State Superintendent of Schools;
(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 by:
(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 education 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 a student may transfer and apply toward the requirements for a bachelor's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state community and technical college with as few requirements to repeat courses or to incur additional costs as is that are consistent with sound academic policy;
(24) Establish and implement policies and procedures to ensure that students a student may transfer and apply toward the requirements for a degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students a student may transfer and apply toward the requirements for a master's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as 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 a student who have has gained knowledge and skills through employment, participation in education and training at vocational schools or other education institutions, or internet-based education programs, may demonstrate by competency-based assessment that they have he or she has the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate associate's degree or a bachelor's degree at a state institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on education and workforce development-related topics as, in the Commission's discretion, 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 and article one-d of this chapter;
(28) Develop, establish Promulgate and implement a rule for higher education governing boards and institutions to follow when considering capital projects pursuant to the provisions of article nineteen of this chapter; The guidelines shall 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 an appropriation request that reflects recommended appropriations from for the Commission and the institutions under its jurisdiction. The Commission shall submit as part of its budget proposal appropriation request the separate recommended appropriations it appropriation request 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 may 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 providing services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and Commissions where this code requires appointments from the State College System Board of Directors or the University of West Virginia System Board of Trustees which were abolished effective June 30, 2000, except in those cases where the required appointment has a specific and direct connection to the provision of community and technical college education, the appointment shall be made by the Council. Notwithstanding any provisions of this code to the contrary, the Commission or the Council may appoint one of its own members or any other citizen of the state as its designee. The Commission and Council shall appoint the total number of persons in the aggregate required to be appointed by these previous governing boards;
(33) Pursuant to 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 state 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, Promulgate and implement a policy rule jointly with the Council whereby course credit earned at a community and technical college transfers for program credit at any other state institution of higher education and is not limited to fulfilling a general education requirement;
(36) 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;
(37) (36) 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; and
(38) (37) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or otherwise dispose of all or part of any real property which it may own that it owns, in accordance with the provisions of article nineteen of this chapter. either by contract or at public auction, and to retain the proceeds of any such sale or lease: Provided, That:
(A) The Commission may not sell, lease, convey or otherwise dispose of any real property without first:
(i) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
(ii) Holding a public hearing on the issue in the county in which the real property is located; and
(iii) Providing notice to the Joint Committee on Government and Finance; and
(B) Any proceeds from the sale, lease, conveyance or other disposal of real property that is used jointly by institutions or for statewide programs under the jurisdiction of the Commission or the Council shall be transferred to the General Revenue Fund of the state.
(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 of the system;
(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, 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. The Commission's authority to review and approve academic programs for either the state institution of higher education known as Marshall University or West Virginia University is limited to programs that are proposed to be offered at a new location not presently served by that institution;
(5) Distribution of funds appropriated to the Commission, including 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 Developing, establishing and implementing information, assessment and accountability systems, including maintenance of maintaining statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the Council, developing, establishing promulgating and implementing policies rules for licensing and oversight for both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs in the state pursuant to the findings and policy recommendations required by section eleven of this article;
(10) Development, implementation and oversight of Developing, implementing and overseeing statewide and regionwide regional projects and initiatives related to providing post-secondary education at the baccalaureate level and above such as those using funds from federal categorical programs or those using incentive and performance-based 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 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 any other powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The Commission is authorized to may withdraw specific powers of any a governing board of an institution under its jurisdiction for a period not to exceed two years, if the Commission makes a determination that any of the following conditions exist:
(1) The governing board has failed for two consecutive years to develop or implement an institutional compact as required in article one one-d of this chapter;
(2) The Commission has received information, substantiated by independent audit, of significant mismanagement or failure to carry out the powers and duties of the 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.
The period of withdrawal of Specific powers of a governing board may not be withdrawn for a period exceed exceeding two years. During which that time the Commission is authorized to may take all steps necessary to reestablish the conditions for restoration of restore sound, stable and responsible institutional governance.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, council and institutional governing board training and development; training and development requirements, applicability and exceptions.

(a) The commission and council, either jointly or separately, shall coordinate periodic training and development opportunities for members of the commission, council and institutional governing boards as provided in this section.
(b) Within six months of beginning service on the commission, council or a governing board, each new member shall complete at least three hours of training and development. The training and development shall address the following topics:
(1) State goals, objectives and priorities for higher education;
(2) The accountability system for higher education set forth in this article;
(3) The general powers and duties of members; and
(4) Ethical considerations arising from board membership.
(c) With the exception of the ex officio members of the commission and the council and the student member of a governing board, each member shall complete at least six hours of training and development related to his or her duties within two years of beginning service and within every two years of service thereafter.
(d) By July 31 each year, the chair of the commission, council and each governing board shall certify to the commission or council, as appropriate, the number of hours of training and development that each member received during the preceding fiscal year.
(e) If the certification indicates that a board member has not completed the training and development required by this section, the commission or council, as appropriate, shall send a notice to the Governor and the Secretary of State or to the institutional appointing entity that the board member is disqualified from continued service notwithstanding the provisions of sections five and six, article six, chapter six of this code. The commission or council, as appropriate, shall request the Governor or appointing entity to appoint a replacement for that board member.
(f) By September 30 each year, the commission and council shall report to the Legislative Oversight Commission on Education Accountability on the training and development that members of the commission and the council and the governing boards under their respective jurisdictions have received during the preceding fiscal year and shall include this information in the institutional and statewide report cards provided in section eight of this article.
(g) As used in this section, "member" means all members of the commission, council and the governing boards unless a specific exception is provided in this section.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Findings; composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment.

(a) Findings. --
The Legislature finds that the State of West Virginia is served best when the membership of each governing board includes the following:
(1) The academic expertise and institutional experience of faculty members and a student of the institution governed by the board;
(2) The technical or professional expertise and institutional experience of a classified employee of the institution governed by the board;
(3) An awareness and understanding of the issues facing the institution governed by the board; and
(4) The diverse perspectives that arise from a membership that is balanced in terms of gender and varied in terms of race and ethnic heritage.

(a) (b) Boards of governors established. --
A board of governors is continued at each of the following institutions: Bluefield State College, Blue Ridge Community and Technical College, The Community and Technical College at West Virginia University Institute of Technology, Concord University, Eastern West Virginia Community and Technical College, Fairmont State University, Glenville State College, Marshall Community and Technical College, Marshall University, New River Community and Technical College, Pierpont Community and Technical College, Shepherd University, Southern West Virginia Community and Technical College, West Liberty State college University, West Virginia Northern Community and Technical College, the West Virginia School of Osteopathic Medicine, West Virginia State Community and Technical College, West Virginia State University, and West Virginia University, and West Virginia University at Parkersburg.
(b) Independent community and technical colleges established. --
Effective July 1, 2008, the board of advisors is abolished and A board of governors is established for Marshall Community and Technical College; Pierpont Community and Technical College, formerly a division of Fairmont State University; The Community and Technical College at West Virginia University Institute of Technology; West Virginia State Community and Technical College; and West Virginia University at Parkersburg.
In making the initial appointments to these boards of governors, the Governor may appoint those persons who are lay members of the boards of advisors by June 30, 2008.
(B) At the end of the initial term, and thereafter
(c) Board Membership. --
(1) An appointment to fill a vacancy on the board or reappointment of a member who is eligible to serve an additional term is made in accordance with the provisions of this section.
(c) (2) The institutional boards board of governors for Marshall University and West Virginia University consist consists of sixteen persons. The board of governors for West Virginia University consists of seventeen persons. The boards of governors of the other state institutions of higher education consist of twelve persons.
(d) (3) Each board of governors includes the following members:
(1) (A) A full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution;
(2) (B) A member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution; and
(3) (C) A member from the institutional classified employees duly elected by the classified employees of the respective institution; and
(4) For the institutional board of governors at Marshall University, thirteen lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section;
(5) For the institutional board of governors at West Virginia University, twelve lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section, and additionally:
(A) The chairperson of the board of Visitors of West Virginia University Institute of Technology;
(B) A full-time faculty member representing the extension service at the institution or a full-time faculty member representing the health sciences, selected by the faculty senate. (6) For each institutional board of governors of the other state institutions of higher education, nine lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section.
(e) (A) Of the nine members appointed by the Governor, no more than five may be of the same political party. Of the thirteen members appointed by the Governor to the governing board of Marshall University, no more than eight may be of the same political party. Of the twelve members appointed by the Governor to the governing board of West Virginia University, no more than seven may be of the same political party.
(B) Of the nine members appointed by the Governor, at least six five shall be residents of the state. Of the thirteen members appointed by the Governor to the governing board of Marshall University, at least eight shall be residents of the state. Of the twelve members appointed by the Governor to the governing board of West Virginia University, at least eight seven shall be residents of the state.
(7) In making lay appointments, the Governor shall consider the institutional mission and membership characteristics including the following:
(A) The need for individual skills, knowledge and experience relevant to governing the institution;
(B) The need for awareness and understanding of institutional problems and priorities, including those related to research, teaching and outreach;
(C) The value of gender, racial and ethnic diversity; and
(D) The value of achieving balance in gender and diversity in the racial and ethnic characteristics of the lay membership of each board.
(f)(d) Board member terms. --
(1) The student member serves for a term of one year. Each term begins on the first day of July.
(g) The (2) The faculty member serves for a term of two years. Each term begins on the first day of July. Faculty members are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(h)(3) The member representing classified employees serves for a term of two years. Each term begins on the first day of July. Members representing classified employees are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(i)(4) The appointed lay citizen members serve terms of up to four years each and are eligible to succeed themselves for no more than one additional term.
(j)(5) A vacancy in an unexpired term of a member shall be filled for the unexpired term within thirty days of the occurrence of the vacancy in the same manner as the original appointment or election. Except in the case of a vacancy, all elections shall be are held and all appointments shall be are made no later than the thirtieth day of June 30 preceding the commencement of the term. Each board of governors shall elect one of its appointed lay members to be chairperson in June of each year. except for the fiscal year beginning July 1, 2008, only, when the board shall elect the chairperson in July A member may not serve as chairperson for more than four consecutive years.
(k)(6) The appointed members of the institutional boards of governors serve staggered terms of up to four years except that four of the initial appointments to the governing boards of community and technical colleges which become that became independent July 1, 2008, are for terms of two years and five of the initial appointments are for terms of four years.
(l)(e) Board member eligibility, expenses. --
(1) A person is ineligible for appointment to membership on a board of governors of a state institution of higher education under the following conditions:
(A) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office or public employment under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, students or the superintendent of a county board of education from being members of the governing boards.
(B) For a community and technical college, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; a member of a board of visitors of any public institution of higher education; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office, other than an elected county office, or public employment, other than employment by the county board of education, under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, or students, or chairpersons of the boards of advisors from being members of the governing boards.
(m)(2) Before exercising any authority or performing any duties as a member of a governing board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by Section five, Article IV of the Constitution of West Virginia and the certificate thereof shall be filed with the Secretary of State.
(n)(3) A member of a governing board appointed by the Governor may not be removed from office by the Governor except for official misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed by law for the removal of the state elective officers by the Governor.
(4) The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses.
(o) (5) The president of the institution shall make available resources of the institution for conducting the business of its board of governors. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties shall:
(a) Determine, control, supervise and manage the financial, business and education policies and affairs of the state institution of higher education under its jurisdiction;
(b) Develop a master plan for the institution under its jurisdiction.
(1) The ultimate responsibility for developing and updating the each master plans plan at the institutional level resides with the board of governors, but the ultimate responsibility for approving the final version of the each institutional master plans plan, including periodic updates, resides with the Commission or Council, as appropriate.
(2) Each institutional master plan shall include, but not be limited to, the following:
(A) A detailed demonstration of how the institutional master plan will be used to meet the goals and objectives of the institutional compact;
(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 a plan to assure that the needs of the institution's area of responsibility for a quality system of higher education are addressed;
(C) Document the involvement of Documentation showing how the governing board involved 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 fewer than three nor more than five years and shall be revised periodically as necessary, including the addition or deletion of adding or deleting degree programs as the governing board in the its discretion of the appropriate governing board, are determines is necessary;
(c) Develop a ten-year campus development plan in accordance with article nineteen of this chapter;
(c) (d) Prescribe for the institution, in accordance with its master plan and compact, specific functions and responsibilities to achieve the goals, objectives and priorities established in articles one and one-d of this chapter to meet the higher education needs of its area of responsibility and to avoid unnecessary duplication;
(d) (e) Direct the preparation of a budget an appropriation request for the institution under its jurisdiction, which relates directly to missions, goals and projections as found in the institutional master plan and the institutional compact;
(e) (f) Consider, revise and submit to the Commission or Council, as appropriate, a budget an appropriation request on behalf of the institution under its jurisdiction;
(f) (g) Review, at least every five years, all academic programs offered at the institution under its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation to established state goals, objectives and priorities, the 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 institution under its jurisdiction to conduct periodic studies of its graduates and their employers to determine placement patterns and the effectiveness of the education experience. Where appropriate, these studies should coincide with the studies required of many academic disciplines by their accrediting bodies;
(g) (h) Ensure that the sequence and availability of academic programs and courses offered by the institution under its jurisdiction is such that students have the maximum opportunity to complete programs in the time frame normally associated with program completion. Each governing board is responsible to see that the needs of nontraditional college-age students are appropriately addressed and, to the extent it is possible for the individual governing board to control, to assure core course work completed at the institution under its jurisdiction is transferable to any other state institution of higher education for credit with the grade earned;
(h) (i) Subject to the provisions of article one-b of this chapter, approve the teacher education programs offered in the institution under its control. In order to permit graduates of teacher education programs to receive a degree from a nationally accredited program and in order to prevent expensive duplication of program accreditation, the Commission may select and use one nationally recognized teacher education program accreditation standard as the appropriate standard for program evaluation;
(i) (j) Use Involve faculty, students and classified employees in institutional-level planning and decisionmaking when those groups are affected;
(j) (k) Subject to the provisions of federal law and pursuant to the provisions of article articles seven, eight and 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 institution under its jurisdiction;
(k) (l) Administer a system for hearing employee grievances and appeals. Notwithstanding any other provision of this code to the contrary, the procedure established in article two, chapter six-c of this code is the exclusive mechanism for hearing prospective employee grievances and appeals;
(l) (m) Solicit and use or expend voluntary support, including financial contributions and support services, for the institution under its jurisdiction;
(m) (n) Appoint a president for the institution under its jurisdiction subject to the provisions of section six, article one-b of this chapter;
(n) (o) Conduct written performance evaluations of the president pursuant to section six, article one-b of this chapter;
(o) (p) Employ all faculty and staff at the institution under its jurisdiction. The employees operate under the supervision of the president, but are employees of the governing board;
(p) (q) 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 established state goals, objectives, and priorities, and goals stated in its master plan and institutional compact; any data or reports requested by the Commission or Council, as appropriate, within the time frame set by the Commission or Council;
(q) (r) Enter into contracts or consortium agreements with the public schools, private schools or private industry to provide technical, vocational, college preparatory, remedial and customized training courses at locations either on campuses of the public institution state institutions of higher education or at off-campus locations in the institution's responsibility district. To accomplish this goal, the boards may share resources among the various groups in the community;
(r) (s) Provide and transfer funding and property to certain corporations pursuant to section ten, article twelve of this chapter;
(s) (t) Delegate, with prescribed standards and limitations, the part of its power and control over the business affairs of the institution to the president in any case where it considers the delegation necessary and prudent in order to enable the institution to function in a proper and expeditious manner and to meet the requirements of its master plan and institutional compact. If a governing board elects to delegate any of its power and control under the provisions of this subsection, it shall enter the delegation in the minutes of the meeting when the decision was made and shall notify the Commission or Council, as appropriate. Any delegation of power and control may be rescinded by the appropriate governing board, the Commission or Council, as appropriate, at any time, in whole or in part, except that the Commission may not revoke delegations of authority made by the governing 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) (u) Unless changed by the Commission or the Council, as appropriate, continue to abide by existing rules setting forth standards for acceptance of advanced placement credit for the institution under its jurisdiction. Individual departments at a state institution of higher education may, upon approval of the institutional faculty senate, require higher scores on the advanced placement test than scores designated by the governing board when the credit is to be used toward meeting a requirement of the core curriculum for a major in that department;
(u) (v) 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 appropriated and nonappropriated revenue and appropriated state funds at the institution under its jurisdiction that ensures that properly submitted requests for payment be paid on or before the due date but, in any event, within fifteen days of receipt in the State Auditor's office;
(v) (w) In consultation with the appropriate chancellor and the Secretary of the Department of Administration, develop, update as necessary and maintain a plan to administer a consistent method of conducting personnel transactions, including, but not limited to, hiring, dismissal, promotions and transfers at the institution under its jurisdiction. Each personnel transaction shall be accompanied by the appropriate standardized system or forms, which shall be submitted to the respective governing board and the Department of Finance and Administration;
(w) (x) Notwithstanding any other provision of this code to the contrary, transfer funds from any account specifically appropriated for its use to any corresponding line item in a general revenue account at any agency or institution under its jurisdiction as long as such the transferred funds are used for the purposes appropriated;
(x) (y) Transfer funds from appropriated special revenue accounts for capital improvements under its jurisdiction to special revenue accounts at agencies or institutions under its jurisdiction as long as such the transferred funds are used for the purposes appropriated in accordance with the provisions of article nineteen of this chapter;
(y) (z) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the governing board, its institution, employees and officers before any court or administrative body. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the governing board may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law; and
(z) (aa) Contract and pay for disability insurance for a class or classes of employees at a state institution of higher education under its jurisdiction.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL COLLEGE EDUCATION.

§18B-2B-6. Powers and duties of the Council.
(a) The Council is the sole agency responsible for administration of vocational-technical-occupational education and community and technical college education in the state. The Council has jurisdiction and authority over the community and technical colleges and the statewide network of independently accredited community and technical colleges as a whole, including community and technical college education programs as defined in section two, article one of this chapter.
(b) The Council shall propose rules pursuant to section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code to implement the provisions of this section and applicable provisions of article one-d of this chapter. (1) To implement the provisions of article one-d of this chapter relevant to community and technical colleges, the Council may propose rules jointly with the Commission or separately and may choose to address all components of the accountability system in a single rule or may propose additional rules to cover specific components.
(2) The rules pertaining to financing policy and benchmarks and indicators required by this section shall be filed with the Legislative Oversight Commission on Education Accountability by the first day of October, two thousand eight. Nothing in this subsection requires other rules of 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. and
(3) The Legislature finds that an emergency exists and, therefore, the Council shall propose an emergency rule or rules to implement the provisions of this section relating to the financing policy and benchmarks and indicators in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code by the first day of October, two thousand eight. The emergency rule or rules may not be implemented without prior approval of the Legislative Oversight Commission on Education Accountability.
(c) The Council has the following powers and duties relating to the authority established in subsection (a) of this section:
(1) Develop, oversee and advance the public policy agenda for community and technical college education for the purpose of accomplishing the mandates of this section, including, but not limited to, the following:
(A) Achieving the goals and objectives established in articles one and one-d of this chapter;
(B) Addressing the goals and objectives contained in the institutional compacts created pursuant to section seven, article one-d of this chapter; and
(C) Developing and implementing the master plan described in section five, article one-d of this chapter;
(2) Propose a legislative rule pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code to develop and implement a financing policy for community and technical college education in West Virginia. The rule shall meet the following criteria:
(A) Provide for an adequate level of education educational and general funding for institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical resources and deferred maintenance;
(C) Establish a plan for strategic funding to strengthen capacity for support of community and technical college education; and
(D) Establish a plan that measures progress and provides performance-based funding to institutions which make significant progress in the following specific areas:
(i) Achieving the objectives and priorities established in article one-d of this chapter;
(ii) Serving targeted populations, especially working age adults twenty-five years of age and over;
(iii) Providing access to high-cost, high-demand technical programs in every region of the state;
(iv) Increasing the percentage of functionally literate adults in every region of the state; and
(v) Providing high-quality community and technical college education services to residents of every region of the state; and
(E) Establish standards for evaluating institutions' requests for tuition and fee increases;
(3) Create a policy leadership structure relating to community and technical college education 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 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 of the institutions under the Council's jurisdiction carry out their duty effectively to govern the individual institutions of higher education; and
(C) Holding each community and technical college and the statewide network of independently accredited community and technical colleges as a whole accountable for accomplishing their missions and achieving the goals and objectives established in articles one, one-d and three-c of this chapter;
(4) Develop for inclusion in the statewide public agenda, a plan for raising education attainment, increasing adult literacy, promoting workforce and economic development and ensuring access to advanced education for the citizens of West Virginia;
(5) Provide statewide leadership, coordination, support and technical assistance to the community and technical colleges and to provide a focal point for visible and effective advocacy for their work and for the public policy agendas approved by the Commission and Council.
(6) Review and adopt annually all institutional compacts for the community and technical colleges pursuant to the provisions of section seven, article one-d of this chapter;
(7) Fulfill the mandates of the accountability system established in article one-d of this chapter and report on progress in meeting established goals, objectives and priorities to the elected leadership of the state;
(8) Propose a legislative rule pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code to establish benchmarks and indicators in accordance with the provisions of this subsection;
(9) Establish and implement the benchmarks and performance indicators necessary to measure institutional progress:
(A) In meeting state goals, objectives and priorities established in articles one and one-d of this chapter;
(B) In carrying out institutional missions; and
(C) In meeting the essential conditions established in article three-c of this chapter;
(10) Collect and analyze data relating to the performance of community and technical colleges in every region of West Virginia and report periodically or as directed to the Legislative Oversight Commission on Education Accountability on the progress in meeting the goals and objectives established in articles one and one-d of this chapter.
Additionally, the Council shall report annually during the January interim meetings meeting period on a date and at a time and location to be determined by the President of the Senate and the Speaker of the House of Delegates.
The annual report shall address at least the following:
(A) The performance of the community and technical college network 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 network as a whole in meeting the goals, and objectives and priorities established in articles one and one-d of this chapter and contained in the Council's master plan and institution compacts;
(B) The priorities established for capital investment needs pursuant to subdivision (11) of this subsection of the Council for new operating and capital investments and the justification for such the priority; and
(C) Recommendations of the Council for statutory changes necessary or expedient to achieve established state goals and objectives;
(11) In accordance with the provisions of article nineteen of this chapter:
(11) (A) Establish a formal process for identifying needs for capital investments and for determining priorities for these investments needs for consideration by the Governor and the Legislature as part of the appropriation request process;
(B) Ensure that the governing boards adhere to the capital construction and maintenance provisions of article nineteen of this chapter; and
(C) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or otherwise dispose of all or part of any real property that it owns;
Notwithstanding the language in subdivision eleven, subsection a, section four, article one-b of this chapter, the Commission is not a part of the process for identifying needs for capital investments for the statewide network of independently accredited community and technical colleges.
(12) Draw upon the expertise available within the Governor's Workforce Investment Office and the West Virginia Development Office as a resource in the area of workforce development and training;
(13) Acquire legal services that are considered necessary, including representation of the Council, 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 Council 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 community and technical college education pursuant to section three of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Council consistent with the provisions of section two, article four of this chapter;
(16) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Council who are employed solely by the Council;
(17) Provide suitable offices in Charleston for the chancellor and other staff;
(18) Approve the total compensation package from all sources for presidents of community and technical colleges, as proposed by the governing boards. The governing boards must shall obtain approval from the Council of the total compensation package both when presidents are employed initially and subsequently when any change is made in the amount of the total compensation package;
(19) 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 that is consistent with sound academic policy;
(20) Establish and implement policies and programs, jointly with the community and technical colleges, 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 associate's degree or a bachelor's degree at a state institution of higher education;
(21) Seek out and attend regional and national meetings and forums on education and workforce development-related topics, as that Council members consider critical for the performance of their duties. The Council shall keep abreast of national and regional community and technical college education trends and policies to aid members in developing the policies for this state that meet the education goals and objectives established in articles one and one- d of this chapter;
(22) Assess community and technical colleges for the payment of expenses of the Council or for the funding of statewide services, obligations or initiatives related specifically to the provision of community and technical college education;
(23) Promulgate rules allocating reimbursement of appropriations, if made available by the Legislature, to community and technical colleges for qualifying noncapital expenditures incurred in the provision of services to students with physical, learning or severe sensory disabilities;
(24) Assume the prior authority of the Commission in examining and approving tuition and fee increase proposals submitted by community and technical college governing boards as provided in section one, article ten of this chapter. Approve tuition and fee increases.
(25) Develop and submit to the Commission, a single budget appropriation request for community and technical college education that reflects recommended appropriations for community and technical colleges and that meets the following conditions:
(A) Incorporates the provisions of the financing rule mandated by this section to measure and provide performance funding to institutions which that achieve or make significant progress toward achieving established state goals, objectives and priorities;
(B) Considers the progress of each institution toward meeting the essential conditions set forth in section three, article three-c of this chapter, including independent accreditation; and
(C) Considers the progress of each institution toward meeting the goals, objectives and priorities established in article one-d of this chapter and its approved institutional compact.
(26) Administer and distribute the independently accredited community and technical college development account;
(27) Establish a plan of strategic funding to strengthen capacity for support and assure delivery of high quality community and technical college education in all regions of the state;
(28) Foster coordination among all state-level, regional and local entities providing post-secondary vocational education or workforce development and coordinate all public institutions and entities that have a community and technical college mission;
(29) Assume the principal responsibility for oversight of those community and technical colleges seeking independent accreditation and for holding governing boards accountable for meeting the essential conditions pursuant to article three-c of this chapter;
(30) Advise and consent in the appointment of the presidents of the community and technical colleges pursuant to section six, article one-b of this chapter. The role of the Council in approving a president is to assure through personal interview that the person selected understands and is committed to achieving the goals and objectives established in the institutional compact and in articles one, one-d and three-c of this chapter;
(31) Provide a single, statewide link for current and prospective employers whose needs extend beyond one locality;
(32) Provide a mechanism capable of serving two or more institutions to facilitate joint problemsolving in areas including, but not limited to, the following:
(A) Defining faculty roles and personnel policies;
(B) Delivering high-cost technical education programs across the state;
(C) Providing one-stop service for workforce training to be delivered by multiple institutions; and
(D) Providing opportunities for resource-sharing and collaborative ventures;
(33) Provide support and technical assistance to develop, coordinate and deliver effective and efficient community and technical college education programs and services in all regions of the state;
(34) Assist the community and technical colleges in establishing and promoting links with business, industry and labor in the geographic areas for which each community and technical college is responsible;
(35) Develop alliances among the community and technical colleges for resource sharing, joint development of courses and courseware, and sharing of expertise and staff development;
(36) Serve aggressively as an advocate for development of a seamless curriculum;
(37) Cooperate with all providers of education services in the state to remove barriers relating to a seamless system of public and higher education and to transfer and articulation between and among community and technical colleges, state colleges and universities and public education, preschool through grade twelve;
(38) Encourage the most efficient use of available resources;
(39) Coordinate with the Commission in informing public school students, their parents and teachers of the academic preparation that students need in order to be prepared adequately to succeed in their selected fields of study and career plans, including presentation of academic career fairs;
(40) Jointly with the Commission, approve and implement a uniform standard, as developed by the chancellors, 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 the governing boards shall communicate to the State Board of Education and the State Superintendent of Schools;
(41) Develop and implement strategies and curriculum for providing developmental education which shall be applied by any state institution of higher education providing developmental education.
(42) Develop a statewide system of community and technical college programs and services in every region of West Virginia for competency-based certification of knowledge and skills, including a statewide competency-based associate degree program;
(43) Review and approve all institutional master plans for the community and technical colleges pursuant to section four, article two-a of this chapter;
(44) Propose rules for promulgation pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code that are necessary or expedient for the effective and efficient performance of community and technical colleges in the state;
(45) In its sole discretion, transfer any rule under its jurisdiction, other than a legislative rule, to the jurisdiction of the governing boards, who which may rescind, revise, alter or amend any rule transferred pursuant to rules adopted by the Council, and provide technical assistance to the institutions under its jurisdiction to aid them in promulgating rules;
(46) Develop for inclusion in the higher education report card, as defined in section eight, article one-d of this chapter, a separate section on community and technical colleges. This section shall include, but is not limited to, evaluation of the institutions based upon the benchmarks and indicators developed in subdivision (9) of this subsection;
(47) Facilitate continuation of the Advantage Valley Community College Network under the leadership and direction of Marshall Community and Technical College;
(48) Initiate and facilitate creation of other regional networks of affiliated community and technical colleges that the Council finds to be appropriate and in the best interests of the citizens to be served;
(49) Develop with the State Board of Education plans for secondary and post-secondary vocational-technical-occupational and adult basic education, including, but not limited to, the following:
(A) Policies to strengthen vocational-technical-occupational and adult basic education; and
(B) Programs and methods to assist in the improvement, modernization and expanded delivery of vocational- technical-occupational and adult basic education programs;
(50) Distribute federal vocational education funding provided under the Carl D. Perkins Vocational and Technical Education Act of 1998, PL 105-332, with an emphasis on distributing financial assistance among secondary and post-secondary vocational- technical-occupational and adult basic education programs to help meet the public policy agenda.
In distributing funds the Council shall use the following guidelines:
(A) The State Board of Education shall continue to be the fiscal agent for federal vocational education funding;
(B) The percentage split between the State Board of Education and the Council shall be determined by rule promulgated by the Council under the provisions of article three-a, chapter twenty-nine-a of this code; The Council shall first obtain the approval of the State Board of Education before proposing a rule;
(51) Collaborate, cooperate and interact with all secondary and post-secondary vocational-technical-occupational and adult basic education programs in the state, including the programs assisted under the federal Carl D. Perkins Vocational and Technical Education Act of 1998, PL 105-332, and the Workforce Investment Act of 1998, to promote the development of seamless curriculum and the elimination of duplicative programs;
(52) Coordinate the delivery of vocational-technical occupational and adult basic education in a manner designed to make the most effective use of available public funds to increase accessibility for students;
(53) Analyze and report to the State Board of Education on the distribution of spending for vocational-technical-occupational and adult basic education in the state and on the availability of vocational-technical-occupational and adult basic education activities and services within the state;
(54) Promote the delivery of vocational-technical-occupational education, adult basic education and community and technical college education programs in the state which that emphasize the involvement of business, industry and labor organizations;
(55) Promote public participation in the provision of vocational-technical-occupational education, adult basic education and community and technical education at the local level, emphasizing programs which involve the participation of local employers and labor organizations;
(56) Promote equal access to quality vocational-technical- occupational education, adult basic education and community and technical college education programs to handicapped and disadvantaged individuals, adults in need of training and retraining, single parents, homemakers, participants in programs designed to eliminate sexual bias and stereotyping and criminal offenders serving in correctional institutions;
(57) Meet annually between the months of October and December with the Advisory Committee of Community and Technical College Presidents created pursuant to section eight of this article to discuss those matters relating to community and technical college education in which advisory committee members or the Council may have an interest;
(58) Accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article;
(59) Assume the powers set out in section nine of this article. The rules previously promulgated by the State College System Board of Directors pursuant to that section and transferred to the Commission are hereby transferred to the Council and shall continue in effect until rescinded, revised, altered or amended by the Council;
(60) Pursuant to the provisions of subsection (b) of this section and article three-a, chapter twenty-nine-a of this code, promulgate a uniform joint legislative rule with the Commission for the purpose of standardizing, as much as possible, the administration of personnel matters among the institutions of higher education;
(61) Determine when a joint rule among the governing boards of the community and technical colleges is necessary or required by law and, in those instances and in consultation with the governing boards, promulgate the joint rule;
(62) Promulgate a joint rule with the Commission establishing tuition and fee policy for all institutions of higher education. 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) Any other policies the Commission and Council consider appropriate;
(63) (62) In cooperation with the West Virginia Division of Highways, study a method for increasing the signage signifying community and technical college locations along the state interstate highways, and report to the Legislative Oversight Commission on Education Accountability regarding any recommendations and required costs; and
(64) (63) Promulgate and implement a policy rule jointly with the Commission whereby any 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.
(d) In addition to the powers and duties listed in subsections (a), (b) and (c) of this section, the Council has the following general powers and duties related to its role in developing, articulating and overseeing the implementation of the public policy agenda for community and technical colleges:
(1) Planning and policy leadership including a distinct and visible role in setting the state's policy agenda for the delivery of community and technical college education and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the community and technical college network as a whole or a geographical region thereof of the network;
(3) Development and implementation of each community and technical college mission definition including use of incentive and performance funds to influence institutional behavior in ways that are consistent with achieving established state goals, objectives and priorities;
(4) Academic program review and approval for the institutions under its jurisdiction, 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;
(5) Development of budget and allocation of resources for institutions delivering community and technical college education, including reviewing and approving institutional operating and capital budgets and distributing incentive and performance-based funding;
(6) Acting as the agent to receive and disburse public funds related to community and technical college education when a governmental entity requires designation of a statewide higher education agency for this purpose;
(7) Development, establishment and implementation of information, assessment and internal accountability systems, including maintenance of statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators for community and technical colleges;
(8) Jointly with the Commission, development, establishment and implementation of policies for licensing and oversight of both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs;
(9) Development, implementation and oversight of statewide and regionwide regional projects and initiatives related specifically to providing community and technical college education such as those using funds from federal categorical programs or those using incentive and performance-based funding from any source; and
(10) Quality assurance that intersects with all other duties of the Council particularly in the areas of planning, policy analysis, program review and approval, budgeting and information and accountability systems.
(e) The Council may withdraw specific powers of a governing board under its jurisdiction for a period not to exceed two years if the Council makes a determination that any of the following conditions exist:
(1) The governing board has failed for two consecutive years to develop an institutional compact as required in section seven, article one-d of this chapter;
(2) The Council 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 Council, severely limit the capacity of the board of governors to carry out its duties and responsibilities.
The period of withdrawal of specific powers may not exceed two years during which time the Council is authorized to may take steps necessary to reestablish the conditions for restoration of sound, stable and responsible institutional governance.
(f) In addition to the powers and duties provided for in subsections (a), (b), (c) and (d) of this section and any others assigned to it by law, the Council has those powers and duties necessary or expedient to accomplish the purposes of this article. and
(g) When the Council and Commission, each, is required to consent, cooperate, collaborate or provide input into the actions of the other the following conditions apply:
(1) The body acting first shall convey its decision in the matter to the other body with a request for concurrence in the action;
(2) The Commission or the Council, as the receiving body, shall place the proposal on its agenda and shall take final action within sixty days of the date when the request for concurrence is received; and
(3) If the receiving body fails to take final action within sixty days, the original proposal stands and is binding on both the Commission and the Council.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-6. Regulation of parking, speed flow of traffic on campus roads and driveways; civil and criminal penalties; disposition of revenue.

(a) The governing boards are hereby authorized to construct, maintain and operate automobile parking facilities or areas upon any premises owned or leased at any state institution of higher education under their jurisdiction for use by students, faculty, staff and visitors. The governing boards may charge fees for use of the parking facilities or areas under their control. All moneys collected for the use of the parking facilities or areas shall be paid to the credit of the state institution of higher education at which the fees were charged into a special fund in the State Treasury. The moneys in the fund are used first to pay the cost of maintaining and operating the parking facilities or areas.
Any excess not needed for this purpose may be used for the acquisition of property by lease or purchase and the construction thereon of additional parking facilities or areas. Any money in the fund not needed immediately for the acquisition, construction, maintenance or operation of the parking facilities or areas may be temporarily invested by the governing boards with the West Virginia Investment Management Board to the credit of the institution by which the fees were charged.
(b) (a) Notwithstanding any other motor vehicle or traffic law or regulation to the contrary, a governing board may regulate and control at any state institution under its jurisdiction the speed, flow and parking of vehicles on campus roads, driveways and parking facilities or areas.
(1) Rules for this purpose shall be promulgated by the governing boards in the manner prescribed in section six, article one of this chapter; and
(2) When so promulgated, the rules have the force and effect of law.
(3) The governing board shall post in a conspicuous location in each parking facility or area, a summary of the rules governing the use of the facility or area including, but not limited to, the availability of temporary parking permits and where these permits may be obtained and the penalties which may be imposed for violations of the rules.
(4) The governing board shall post in a conspicuous location along each campus road and driveway notice signs pertaining to the speed of vehicles, spaces available for parking, directional flow of traffic and penalties which may be imposed for violations of the rules.
(c) (b) Any person parking or operating a vehicle in violation of the rules shall be issued a citation:
(1) Describing the offense charged; and
(2) Ordering an appearance:
(A) Within ten days, excluding Saturdays, Sundays and holidays observed by the state institution, before a designated official of the institution;
(B) Before a magistrate located in the county if the person cited fails to appear within the ten days; or
(C) Before the judge of the municipal court, if the state institution is located within a municipality having such an official and the person cited fails to appear within the ten days.
(d) (c) The designated official of the state institution has exclusive jurisdiction of the offense during the ten-day period until the citations are citation is forwarded to a magistrate. 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 designated official of the institution has exclusive jurisdiction of the offense for thirty days following the violation. After thirty days the official forwards shall forward the citation to a magistrate. Any person so cited may plead no contest to the offense and, by so pleading, is subject to a civil penalty to be determined uniformly by the designated official and commensurate with the severity of the offense. For the state institutions 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 amount imposed may not exceed $20. For all other institutions the amount may not exceed $10, for each offense as partial reimbursement to the state institution of higher education for the cost of regulating traffic and parking. In the case of the state institutions under the jurisdiction of the governing board of Marshall University and in the case of the state institution of higher education known as West Virginia University only, the designated official shall determine the penalty uniformly, commensurate with the severity of the offense, and may apply academic restrictions in lieu of requiring a student to appear in court and receive penalties otherwise provided in this section. Moneys derived from civil penalties imposed herein in this subsection shall be deposited in the special fund in the state treasury created by this section and credited to the state institution to which the penalty was paid institution's auxiliary and auxiliary capital fees fund.
(e) (d) Upon expiration of the ten-day or thirty-day period, as applicable, or upon a pleading of not guilty before the designated official of the state institution within the applicable period, the magistrate or judge of the municipal court has jurisdiction of the offense. Any person cited under the provisions of this section, upon a finding of guilty by the magistrate or municipal judge, is subject to a fine for each offense by the state institutions under the jurisdiction of the governing board of Marshall University and for the state institution of higher education known as West Virginia University only, of up to $40, and at all other state institutions not less than $10 nor more than $20, the amount to be commensurate with the severity of the offense.
(f) (e) Each designated official of a state institution presiding over a case under the provisions of this section shall keep a record of every citation which alleges a violation of such the provisions, or the rules promulgated in accordance therewith with this section, and shall keep a record of every official action in reference thereto to the citation including, but not limited to, a record of every plea of no contest, conviction or acquittal, of the offense charged, and the amount of the fine or civil penalty resulting from each citation.
(g) (f) Whenever a vehicle is parked on any state institution campus road, driveway or parking facility or area in a manner which violates posted rules and substantially impedes the flow of traffic or endangers the health and safety, in addition to issuing a citation and subsequent procedures set forth in this section, the institution may in addition to the issuing of a citation and subsequent procedures set forth herein, remove the vehicle, by towing or otherwise, to an area owned by the institution or areas designated for this purpose. The vehicle, having been towed to the designated area or areas, may be rendered immovable by use of locking wheel blocks or other device not damaging to the vehicle. The state institution of higher education shall maintain any vehicle so towed in the same condition as it was immediately prior to being towed, but shall is not be liable for any damage to a vehicle towed to, or kept in, a designated area pursuant to the provisions of this section. The state institution of higher education shall pay for the cost of removing the vehicle and shall have has a right to reimbursement from the owner for this cost and for the reasonable cost of keeping the vehicle in the designated area. Until payment of these costs, the state institution of higher education may retain possession of the vehicle and the institution shall have a lien on the vehicle for the amount due. The state institution of higher education may enforce this lien in the manner provided in section fourteen, article eleven, chapter thirty-eight of this code for the enforcement of other liens. 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 provisions of this subsection also apply when a vehicle is subject to three or more unpaid citations.
(h) (g) If, at any time, Marshall Community and Technical College ceases to share a physical campus location with Marshall University, it may not be included as an institution under the jurisdiction of the governing board of Marshall University for the purposes of subsections (a),(d),(e) and (g) (c), (d) and (f) of this section.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§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 ensure that the following steps occur:
(1) Do not preclude any No person is precluded from participating and making sales thereof to the Council, Commission or governing board or to the Council or Commission except as otherwise provided in section five of this article. Provision of consultant Providing consulting services such as strategic planning services does not preclude or inhibit the governing boards, Council or Commission from considering any a qualified bid or response for delivery of a product or a commodity because the consultant services are rendered from the individual providing the services;
(2) Establish and prescribe Specifications in all proper cases shall be established and prescribed 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 shall be adopted and prescribed;
(4) Negotiate for and make Purchases and acquisitions in such quantities, at such times and under contract, shall be negotiated for and made 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 shall be advertised on all purchases exceeding $25,000, to purchase and shall be purchased by means of sealed or electronically-submitted bids and competitive bidding or to effect advantageous purchases shall be effected through other accepted governmental methods and practices;
(6) Post Notices of all for acquisitions and purchases for which competitive bids are being solicited shall be posted in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such the purchases. and The rules shall ensure that the notice is available to the public during business hours;
(7) Provide for purchasing Purchases shall be made in the open market;
(8) Provide for vendor notification Vendors shall be notified of bid solicitation and emergency purchasing;
(9) Provide that Competitive bids are not required for purchases of $25,000 or less; and
(10) Provide for not No fewer than three bids where shall be obtained when bidding is required, except if fewer than three bids are submitted, an award may be made from among those received.
(c) When a state institution of higher education submits a contract, agreement or other document to the Attorney General for approval as to form as required by this chapter the following conditions apply:
(1) "Form" means compliance with the constitution and statutes of the State of West Virginia;
(2) The Attorney General does not have the authority to reject a contract, agreement or other document based on the substantive provisions therein in the contract, agreement or document or any extrinsic matter so as long as it complies with the constitution and statutes of this state;
(3) Within fifteen days of receipt, the Attorney General shall notify the appropriate state institution of higher education in writing that the contract, agreement or other document is approved or disapproved as to form. If the contract, agreement or other document is disapproved as to form, the notice of disapproval shall identify each defect that supports the disapproval; and
(4) If the state institution elects to challenge the disapproval by filing a writ of mandamus or other action and prevails, then the Attorney General shall pay reasonable attorney fees and costs incurred.
(d) Pursuant to this subsection, the governing boards of Marshall University and West Virginia University, respectively, may carry out the following actions:
(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, and capital improvements, including equipment, if the rental of which is necessarily required by the governing board; and
(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) (u) of this section.
(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, and capital improvements, including equipment, or lease-purchase agreements.
(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.
(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 applies to the competitive bids made pursuant to this section.
(h) The governing boards, Council and Commission shall maintain a purchase file, which shall be a public record and open for public inspection.
(1) After the award of the order or contract, the governing boards, Council and Commission shall indicate upon the successful bid the following information:
(A) That it was Designation as the successful bid; and shall further indicate
(B) Why The reason any bids are were rejected; and
(C) If the mathematical low vendor is was not awarded the order or contract, the reason therefor.
(2) 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.
(3) All files, no matter the storage method, shall be open for inspection by the Legislative Auditor upon request.
(i) The Commission and Council also jointly shall adopt promulgate 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 has one of the following qualifications:
(1) Is 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.
(j) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of $50,000, 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 these buyers, a blanket surety bond may be obtained. Any such The bond shall be filed with the Secretary of State and the cost of any such the bond shall be paid from funds appropriated to the applicable governing board or the Council or Commission.
(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 that article to determine whether the amount of the purchase is within the Commission's, Council's or governing board's quarterly allotment of the Commission, Council or governing board, is in accordance with the approved expenditure schedule and otherwise conforms to the provisions of said the article.
(l) The governing boards, Council and Commission may make requisitions upon the State 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 State Auditor shall draw a warrant upon the Treasurer for such those 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.
(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 as to form by the Attorney General. The Attorney General shall make a list of those changes which he or she considers to be substantive and the list, and any changes thereto to the list, 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.
(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 to this article, the purchase or contract is void and of no effect.
(o) Any A governing board or the Council or Commission, as appropriate, may request the director of purchases purchasing 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 purchasing shall cooperate with that governing board, Council or Commission, as appropriate, in all such purchases and acquisitions upon such that request.
(p) Each governing board or the Council or Commission, as appropriate, shall may 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 A private school institution desiring to join as purchasers purchaser on such purchase contracts shall file with that governing board or the Council or Commission, as appropriate, an affidavit signed by the president or designee of the private 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 institution 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.
(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 that source, and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract that source would be the most financially advantageous manner of making the purchase.
(r) An independent performance audit of all purchasing functions and duties which are performed at any state 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.
(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.
(t) Consultant services, such as strategic planning services, do 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.
(u) The Commission or Council may enter into lease-purchase agreements for capital improvements, including equipment, on behalf of or for the benefit of state institutions of higher education, the Commission or Council. After the Commission or Council, as appropriate, has granted approval for lease-purchase agreements by the governing boards, a governing board may enter into lease-purchase agreements for capital improvements, including equipment, except the governing boards of Marshall University and West Virginia University may enter into lease-purchase agreements 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 agreement so entered shall constitute a special obligation of the State of West Virginia. The obligation under a lease-purchase agreement so entered may be from any funds legally available to the Commission, Council or the institution and must be cancelable at the option of the Commission, Council or 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 agreement as to form by the Attorney General. of West Virginia Proposals for any agreement shall 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 as to form by the Attorney General. 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.
(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 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.
(w) (u) 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 meets the following conditions:
(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) (2) 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) (3) of this subsection may use purchasing cards for the following purposes:
(A) Payment of travel expenses directly related to the job duties of the traveling employee, including, but not limited to, fuel and food; and
(B) Payment of 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 June 30, 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) (3) 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) (2) of this subsection. The Commission and Council each shall authorize expanded use of purchasing cards pursuant to said that subdivision for any such institution it determines has the capacity to comply.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-8. Collection; disposition and use of capital and auxiliary capital fees; creation of special capital and auxiliary capital improvements funds; revenue bonds.

(a) This section and any rules adopted by the Commission, Council or both, in accordance with this section and article three- a, chapter twenty-nine-a of this code, governs govern the collection, disposition and use of the capital and auxiliary capital fees authorized by section one of this article. The statutory provisions governing collection and disposition of capital funds in place prior to the enactment of this section remain in effect.
(b) Fees for full-time students. -- The governing boards shall fix capital and auxiliary capital fees for full-time students at each state institution of higher education per semester. For institutions under its jurisdiction, a governing board may fix the fees at higher rates for students who are not residents of this state.
(c) Fees for part-time students. -- For all part-time students and for all summer school students, the governing boards shall impose and collect the fees in proportion to, but not exceeding, the fees paid by full-time students. Refunds of the fees may be made in the same manner as any other fee collected at state institutions of higher education.
(d) There is continued in the State Treasury a special capital improvements fund and special auxiliary capital improvements fund for each state institution of higher education and the Commission into which shall be paid all proceeds, respectively, of the following:
(1) The capital and auxiliary capital fees collected from students at all state institutions of higher education pursuant to this section; and
(2) The fees collected from the students pursuant to section one of this article. The fees shall be expended by the Commission and governing boards for the payment of principal of or interest on any revenue bonds issued by the board of regents or the succeeding governing boards for which the fees were pledged prior to the enactment of this section.
(e) The governing boards may make expenditures from any of the special capital improvements funds or special auxiliary capital improvement funds established in this section to finance or fund on a cash basis, in whole or in part, together in combination with any federal, state or other grants or contributions, for any one or more of the following projects:
(1) The acquisition of land or any rights or interest in land;
(2) The construction or acquisition of new buildings;
(3) The renovation or construction of additions to existing buildings;
(4) The acquisition of furnishings and equipment for the buildings; and
(5) The construction or acquisition of any other capital improvements or capital education facilities at the state institutions of higher education, including any roads, utilities or other properties, real or personal, or for other purposes necessary, appurtenant or incidental to the construction, acquisition, financing and placing in operation of the buildings, capital improvements or capital education facilities, including student unions, dormitories, housing facilities, food service facilities, motor vehicle parking facilities and athletic facilities.
(f) The governing boards, in their discretion, may use the moneys in the special capital improvements funds and special auxiliary improvement funds to finance the costs of the purposes set forth in this section on a cash basis. The Commission, when singly or jointly requested by the Council or governing boards, periodically may issue revenue bonds of the state as provided in this section to finance all or part of the purposes and pledge all or any part of the moneys in such the special funds for the payment of the principal of and interest on the revenue bonds, and for reserves for the revenue bonds. Any pledge of the special funds for the revenue bonds shall be a prior and superior charge on the special funds over the use of any of the moneys in the funds to pay for the cost of any of the purposes on a cash basis. Any expenditures from the special funds, other than for the retirement of revenue bonds, may be made by the Commission or governing boards only to meet the cost of a predetermined capital improvements program for one or more of the state institutions of higher education, in the order of priority agreed upon by the governing board or boards and the Commission and for which the aggregate revenue collections projected are presented to the Governor for inclusion in the annual budget bill, and are approved by the Legislature for expenditure. Any expenditure made pursuant to subsection (e) of this section shall be part of the ten-year campus development plan approved by the institutional governing board pursuant to section three, article nineteen of this chapter.
(g) The revenue bonds periodically may be authorized and issued by the Commission or governing boards to finance, in whole or in part, the purposes provided in this section in an aggregate principal amount not exceeding the amount which the Commission determines can be paid as to both principal and interest and reasonable margins for a reserve therefor from the moneys in the special funds.
(h) The issuance of the revenue bonds shall be authorized by a resolution adopted by the governing board receiving the proceeds and the Commission, and the revenue bonds shall bear the date or dates; mature at such time or times not exceeding forty years from their respective dates; be in such form either coupon or registered, with such exchangeability and interchangeability privileges; be payable in such medium of payment and at such place or places, within or without the state; be subject to such terms of prior redemption at such prices not exceeding one hundred five per centum of the principal amount thereof; and shall have the other terms and provisions determined by the governing board receiving the proceeds and by the Commission. The revenue bonds shall be signed by the Governor and by the chancellor of the Commission or the chair of the governing boards authorizing the issuance thereof of the revenue bonds, under the Great Seal of the State, attested by the Secretary of State, and the coupons attached to the revenue bonds shall bear the facsimile signature of the chancellor of the Commission or the chair of the appropriate governing boards. The revenue bonds shall be sold in the manner the Commission or governing board determines is for in the best interests of the state.
(i) The Commission or governing boards may enter into trust agreements with banks or trust companies, within or without the state, and in the trust agreements or the resolutions authorizing the issuance of the bonds may enter into valid and legally binding covenants with the holders of the revenue bonds as to the custody, safeguarding and disposition of the proceeds of the revenue bonds, the moneys in the special funds, sinking funds, reserve funds or any other moneys or funds; as to the rank and priority, if any, of different issues of revenue bonds by the Commission or governing boards under the provisions of this section; as to the maintenance or revision of the amounts of the fees; as to the extent to which swap agreements, as defined in subsection (h), section two, article two-g, chapter thirteen of this code shall be used in connection with the revenue bonds, including such provisions as payment, term, security, default and remedy provisions as the Commission shall consider considers necessary or desirable, if any, under which the fees may be reduced; and as to any other matters or provisions which are considered necessary and advisable by the Commission or governing boards in the best interests of the state and to enhance the marketability of the revenue bonds.
(j) After the issuance of any revenue bonds, the fees at the state institutions of higher education pledged to the payment thereof of the revenue bonds may not be reduced as long as any of the revenue bonds are outstanding and unpaid except under such the terms, provisions and conditions as shall be contained in the resolution, trust agreement or other proceedings under which the revenue bonds were issued. The revenue bonds are and constitute negotiable instruments under the Uniform Commercial Code of this state; together with the interest thereon, be are exempt from all taxation by the State of West Virginia, or by any county, school district, municipality or political subdivision thereof; and the revenue bonds may not be considered to be obligations or debts of the state and the credit or taxing power of the state may not be pledged therefor, but the revenue bonds shall be payable only from the revenue pledged therefor as provided in this section.
(k) Additional revenue bonds may be issued by the Commission or governing boards pursuant to this section and financed by additional revenues or funds dedicated from other sources.
(1) There is hereby created in the State Treasury a The special revenue fund in the State Treasury, known as the Community and Technical College Capital Improvement Fund into which shall be deposited the amounts specified in subsection (j), section eighteen, article twenty-two, chapter twenty-nine of this code is continued. 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 the Commission for community and technical college capital improvements.
(2) There is hereby created in the State Treasury a special revenue fund known as the Higher Education Policy Commission Capital Improvement Fund into which shall be deposited the amounts specified in subsection (k), section eighteen, article twenty-two, chapter twenty-nine of this code. 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 the Commission for college and university capital improvements.
(l) Funding of systemwide and campus-specific revenue bonds under any other section of this code is continued and authorized pursuant to the terms of this section. Revenues of any state institution of higher education pledged to the repayment of any revenue bonds issued pursuant to this code shall remain pledged.
(m) Any revenue bonds for state institutions of higher education proposed to be issued under this section or other sections of this code first must be approved by the Commission.
(n) Revenue bonds issued pursuant to this code may be issued by the Commission or governing boards, either singly or jointly.
(o) Fees pledged for repayment of revenue bonds issued under this section or article twelve-b, chapter eighteen prior to or after the effective date of this section shall be transferred to the Commission in a manner prescribed by the Commission. The Commission may transfer funds from the accounts of institutions pledged for the repayment of revenue bonds issued prior to the effective date of this section or issued subsequently by the Commission upon the request of institutions, if an institution fails to transfer the pledged revenues to the Commission in a timely manner.
(p) Effective July 1, 2004, the capital and auxiliary capital fees authorized by this section and section one of this article are in lieu of any other fees set out in this code for capital and auxiliary capital projects to benefit public higher education institutions. Notwithstanding any other provisions of this code to the contrary, in the event any capital, tuition, registration or auxiliary fees are pledged to the payment of any revenue bonds issued pursuant to any general bond resolutions of the Commission, any of its predecessors or any institution, adopted prior to the effective date of this section, such the fees shall remain in effect in amounts not less than the amounts in effect as of that date, until the revenue bonds payable from any of the fees have been paid or the pledge of the fees is otherwise legally discharged.
ARTICLE 19. CAPITAL PROJECTS AND FACILITIES NEEDS.
§18B-19-1. Legislative findings and intent.
(a) The Legislature finds that:
(1) State institutions of higher education vary widely in the conditions of their facilities infrastructure;
(2) State institutions of higher education vary widely in their ability to incur debt for capital improvements. It is nearly impossible for community and technical colleges and some smaller baccalaureate institutions to fund significant capital improvements in the absence of state funding;
(3) A student enrolled at a community and technical college that previously was administratively linked to a baccalaureate institution pays substantially higher tuition and mandatory fees than a student enrolled at a freestanding community and technical college. This cost discrepancy is due in large part to the significantly higher capital fees charged to these students to pay debt service for capital improvements.
(4) The substantial amount of capital fees that students must pay at the institution level contributes significantly to the poor grade the state receives in the category of "Affordability" in Measuring Up: The National Report Card on Higher Education.
(5) It is beneficial for the state to provide additional ongoing capital funding to reduce the obligation of students and parents to bear the cost of higher education capital improvements and facilities maintenance;
(6) West Virginia is one of very few states that does not address higher education capital improvements and facilities maintenance needs through a statewide plan;
(7) State funding for capital improvements should align with state and system higher education goals, objectives and priorities as set forth in article one-d of this chapter;
(8) State capital funding should focus primarily on educational and general capital improvements, not auxiliary capital improvements.
(9) Renovations of existing buildings generally deserve greater consideration for state funding than new construction. However, new construction may deserve greater consideration than renovation when a state or system goal, objective or priority is implicated.
(10) As the Legislature increases funding for new educational and general capital improvements and major renovations, and supplants existing educational and general debt, institutions should target funds for maintenance and deferred maintenance needs.
(11) If community and technical colleges are to keep the cost of education affordable, they cannot be expected to fund maintenance obligations entirely from student capital fees.
(12) The Commission and Council should scrutinize all institutional requests to incur additional debt carefully to determine their effect on institution debt capacity and the impact that incurring additional debt will have on students.
(13) State institutions of higher education ultimately should target adequate state capital contributions and capital fees to address maintenance and deferred maintenance needs.
(14) Until institutions are able to generate sufficient revenue to address maintenance and deferred maintenance needs, the Legislature should provide periodic funding to assist institutions in addressing these needs. Funding priority should be given to projects that address building code requirements and critical maintenance needs.
(15) In supporting future high priority capital needs, the Legislature, Commission and Council should not reward institutions with state funding if they neglect to address facilities maintenance needs or do not prudently manage their capital resources.
(16) Once an institution's capital development plan has been approved by the governing board and the Commission or Council, as appropriate, project priorities should not change significantly from year to year;
(17) Commission and Council staff should participate to a greater extent in managing capital projects at smaller institutions than at larger institutions as smaller institutions often lack the expertise necessary to plan, design and complete projects at or under budget.
(b) The intent of the Legislature relating to this article includes, but is not limited to, the following:
(1) Dedicated state funding sources shall be designated to finance construction and renovation of educational and general facilities at state institutions of higher education from time to time;
(2) Capital project lists submitted by institutions to the Commission or Council, as appropriate, and capital project lists submitted by the Commission and Council to the state budget office, Legislative Oversight Commission on Education Accountability, and Joint Committee on Government and Finance for consideration for state funding shall be reasonable requests that align with state and system goals, objectives and priorities and reasonably could be funded if approved;
(3) As the Legislature increases its responsibility for financing new educational and general facilities and major renovations, the Commission, Council and institutions shall ensure that sufficient capital revenues are available for maintenance and that the facilities are maintained adequately;
(4) Ongoing state funding shall be dedicated to supplement capital fees available for maintenance at community and technical colleges; and
(5) Once a system capital plan is in place, institutions annually shall set aside adequate funding to ensure that ongoing facilities maintenance needs are met.
§18B-19-2. Defined terms.
As used in this article, the following terms have the meanings ascribed to them.
(a) "ADA" means the Americans with Disabilities Act, pursuant to 42 U. S. C. §12101, et seq.
(b) "Auxiliary enterprise" means an entity that exists to furnish goods or services to students, faculty, staff or others; charges a fee directly related to, although not necessarily equal to, the cost of the goods or services; and is managed as essentially self-supporting.
(c) "Auxiliary facility" means a building or structure that is used for an auxiliary enterprise including, but not limited to, residence halls, food services, parking, intercollegiate athletics, faculty and staff housing, student unions, bookstores and other service centers.
(d) "Auxiliary fees" includes, but is not limited to, the following sources:
(1) Parking fees received from any source;
(2) Revenues received from athletic events, including ticket sales, television revenues and skybox fees;
(3) Bookstore revenues;
(4) Student union vendor and user fees;
(5) Donations or grants from any external source;
(6) Facility rental fees; and
(7) Fees assessed to students to support auxiliary enterprises.
(e) "Capital planning" means a purposeful activity that focuses attention on long term physical plant objectives that should be accomplished in a logical sequence over time as opportunities arise and resources become available.
(f) "Capital project management" means planning, designing, bidding and providing construction administration and oversight of architectural, engineering and construction contracts and projects.
(g) "Deferred maintenance" means the failure to perform needed repair, maintenance and renewal as part of normal maintenance management for capital facilities and deferring such action to a future budget cycle or until funds are available.
(h) "Educational and general capital fees" means the fees collected from students to pay debt service for capital improvement bonds issued by the Commission and governing boards for educational and general facilities, for the maintenance of those facilities and to fund capital improvements in those facilities on a cash basis.
(i) "Educational and general facility" means a building or structure used for instruction and instructional support purposes, and includes classroom, laboratory, library, computer laboratory, faculty and administrative office and other academic support spaces.
(j) "Extraordinary circumstance" or "extraordinary circumstances" means, a situation involving life-safety issues, issues that would result in extensive damage to a facility if not addressed immediately, any unforeseen opportunity to use external funds and any other situation the Commission or Council determines should warrant special consideration.
(k) "Life-safety" means a condition existing on a campus that, if not corrected immediately, would jeopardize the safety and property of students, faculty, staff and the visiting public.
(l) "Maintenance" means the work necessary within a budget cycle to realize the originally anticipated life of a fixed asset, including buildings, fixed equipment and infrastructure.
(m) "Governing board", "state institution of higher education" and "institution under the jurisdiction of the Commission" means all state institutions of higher education including Marshall University and West Virginia University and their respective governing boards.
§18B-19-3. System capital development planning.
(a) By December 31, 2010, the Commission and Council, jointly or separately, shall develop a system capital development plan for approval by the Legislative Oversight Commission on Education Accountability. At a minimum the initial plan shall include the following:
(1) System goals for capital development;
(2) An explanation of how system capital development goals align with state goals, objectives and priorities established in articles one and one-d of this chapter and with system master plans;
(3) A process for prioritizing capital projects for state funding based on their ability to further state goals, objectives and priorities and system capital development goals;
(4) A building renewal formula to calculate a dollar benchmark that shall be collected annually and invested in facilities to minimize deferred maintenance and to provide the Commission and Council objective information to determine if the investments in maintenance are occurring;
(5) A process for governing boards to follow in developing and submitting campus development plans to the Commission or Council, as appropriate, for approval;
(6) A process for governing boards to follow to ensure that sufficient revenue is generated for and applied toward facilities maintenance; and
(7) A discussion addressing how capital fees dedicated to debt service for the bond issue to be paid off in 2012 will be used after the payoff date.
(b) The system capital development plan shall be developed in consultation with governing boards and appropriate institution staff. Before approving the capital development plan, the Commission and Council shall afford interested parties an opportunity to comment on the plan through a notice-and-comment period of at least thirty days.
(c) The Commission and Council shall update its system capital development plan at least once in each ten-year period.
§18B-19-4. Institutional campus development planning.
(a) Each governing board shall update its current campus development plan and submit the updated plan to the Commission or Council, as appropriate, for approval by June 30, 2012. A campus development plan shall be developed for a ten-year period and shall align with criteria specified in the following sources:
(1) The system capital development plan;
(2) The institution's approved master plan and compact; and
(3) The original campus development plan objectives.
(b) Campus development plans are intended to be aspirational; however, an institution's plan shall be appropriate to its size, mission, and enrollment and to the fiscal constraints within which the institution operates. At a minimum the campus development plan shall include the following:
(1) The governing board's development strategy;
(2) An assessment of the general condition and suitability of buildings and facilities, including deferred maintenance, life- safety and building code issues, ADA requirements and energy efficiency;
(3) An assessment of the impact of projected enrollment and demographic changes on building and facility needs;
(4) A comprehensive list of deferred maintenance projects that need to be addressed for each campus by building or facility and provide an estimated cost for each;
(5) A list of existing buildings and facilities in need of renovations, additions, demolition or any combination thereof;
(6) A list of major site improvements that are needed, including vehicular and pedestrian circulation, parking and landscaping;
(7) A list of telecommunications, utilities and other infrastructure improvements that are needed;
(8) A list of potential real property acquisitions and delineation of clear property acquisition boundaries that are reasonably appropriate for campus expansion;
(9) A list of proposed new facilities and building sites;
(10) A list of capital projects in priority order;
(11) Estimates of the timing, phasing and projected costs associated with individual projects;
(12) If an institution has multiple campuses in close proximity, a delineation of how the campuses should interact and support each other to minimize duplication of facilities, improve efficiency and be aesthetically compatible;
(13) A statement of the impact of the plan upon the local community and the input afforded local and regional governmental entities and the public with respect to its implementation; and
(14) Any other requirement established by the Commission and Council in the rules required by section seventeen of this article.
(c) Campus development plans shall incorporate all current and proposed facilities, including educational and general and auxiliary facilities.
(d) At the next regularly scheduled meeting of the Commission or Council, as applicable, following the fifth anniversary date after the Commission or Council approves the development plan of a governing board, the governing board shall report on the progress made in the first five years to implement the campus development plan for each campus under its jurisdiction. In addition, the governing board shall report on its plans to implement the remaining five-year period of its campus development plan.
(e) Each governing board shall update its campus development plan at least once in each ten-year period and any update is subject to the approval of the Commission or Council, as appropriate.
(f) A governing board may not implement a campus development plan or plan update that has not been approved by the Commission or Council, as appropriate.
§18B-19-5. Capital appropriation requests.
(a) The Commission and Council each shall submit a prioritized capital appropriation request annually to the State Budget Office as required by article two, chapter eleven-b of this code consisting of major capital projects and maintenance projects.
(b) The Commission and Council each shall develop a process for governing boards to follow in submitting a list of major educational and general capital projects so that a prioritized major capital project list, approved by the Commission or Council, as appropriate, may be submitted to the State Budget Office by the applicable deadline.
(1) The governing board's major capital project list shall include the following items:
(A) Projects identified in the governing board's approved campus development plan or plans. A project may not be included which is not contained in the approved plan, except when extraordinary circumstances otherwise warrant;
(B) A current estimate of each project's estimated cost accounting for inflation since completion of the campus development plan. The size and scope of the project may not change unless the campus development plan has been updated and approved as provided for in section four of this article; and
(C) Any additional information required to be provided by the Commission, Council or State Budget Office.
(2) The Commission and Council each shall rank the major capital projects submitted by the governing boards according to priority consistent with the criteria outlined in the system capital development plan. The Council and Commission may not submit to the State Budget Office a request for an institution which the Commission or Council determines reasonably could not secure funding through the appropriation process during the following fiscal year.
(c) The Commission and Council each shall develop a process for governing boards to follow in submitting a list of maintenance projects so that a prioritized maintenance project list, approved by the Commission or Council, as appropriate, may be submitted to the State Budget Office by the applicable deadline.
(1) No later than April 1, 2011, and annually thereafter, the Commission and Council, as appropriate, shall provide each governing board a building renewal calculation that identifies the funds that should be collected and invested in its buildings and facilities during the next fiscal year to maintain them and minimize deferred maintenance.
(2) Upon receiving the building renewal calculation, each governing board shall make realistic revenue estimates of the funds available for maintenance projects from educational and general capital fees, from auxiliary and auxiliary capital fees and from any other revenue that may be used for maintenance projects, as well as any anticipated reserves. The governing boards then shall identify and submit proposed maintenance projects, consistent with its campus development plan or plans, to be funded from these revenues.
(3) The Commission and Council each shall report to the Legislative Oversight Commission on Education Accountability on the revenue available to governing boards for educational and general and auxiliary maintenance projects, as well as any shortfalls based on building renewal formula calculation, and major maintenance projects that institutions propose to undertake during the upcoming fiscal year.
(4) The Commission shall work with institutions under its jurisdiction to ensure that adequate funds are generated to fund maintenance and build adequate reserves from educational and general and auxiliary capital fees and other revenue consistent with the building renewal formula. The Legislature recognizes that it may take several years for this to be accomplished fully.
(5) The Council shall work with the Legislature and institutions under its jurisdiction to ensure that a combination of appropriated and nonappropriated revenue is available to fund maintenance and build adequate reserves at community and technical colleges consistent with the building renewal formula.
§18B-19-6. Capital project financing.
(a) The Commission and governing boards, jointly or singly, may issue revenue bonds for capital project financing in accordance with the provisions of section eight, article ten of this chapter.
(b) A governing board may seek funding for and initiate construction or renovation work only for projects contained in an approved campus development plan.
(c) A governing board may fund capital improvements on a cash basis or through bonding or other financing method that is approved by the Commission, and by the Council if appropriate.
(1) If the cost of an improvement project for any institution, except Marshall University or West Virginia University, exceeds $1 million, the governing board first shall obtain the approval of the Commission or Council, as appropriate. If the cost of an improvement project for Marshall University or West Virginia University exceeds $5 million, the governing board first shall obtain the approval of the Commission.
(2) Prior to approving bonding or any alternative financing method, the Commission, and Council if appropriate, shall evaluate the following issues:
(A) The institution's debt capacity and ability to meet the debt service payments for the full term of the financing;
(B) Whether the revenue to be generated by the institution is sufficient to complete the project;
(C) The institution's ability to fund ongoing operations and maintenance;
(D) The impact of the financing arrangement on students; and
(E) Any other factor considered appropriate.
(d) A governing board shall notify the Joint Committee on Government and Finance at least thirty days before beginning construction or renovation work on any capital project in excess of $1 million.
(e) The Commission may pledge all or part of the fees of any or all state institutions of higher education as part of a system bond issue.
(f) Any fee or revenue source pledged prior to the effective date of this section for payment of any outstanding debt remains in effect until the debt is fully repaid or refunded.
§18B-19-7. Capital project management.
(a) The Commission, Council and governing boards shall ensure that capital funds are spent appropriately and that capital projects are managed effectively. Project management shall be conducted in all respects according to sound business practices and applicable laws, and rules.
(b) The Commission shall employ a sufficient number of competent facilities staff experienced in capital project development and management that is suitable for the number, size and complexity of the capital projects being managed. At least one employee shall be Leadership in Energy and Environmental Design (LEED) certified beginning December 31, 2010.
(c) An institution that has entered into construction contracts averaging more than $50 million over the most recent rolling five-year period is responsible for capital project management at that institution.
(1) The governing board shall employ the following personnel:
(A) A competent facilities staff experienced in capital project development and management that is suitable for the number, size and complexity of the capital projects being managed; and
(B) At least one employee who is Leadership in Energy and Environmental Design (LEED) certified beginning December 31, 2010.
(2) The governing board shall adopt a capital project management rule in accordance with the provisions of section six, article one of this chapter, that is consistent with the capital management rules of the Commission and Council, as appropriate.
(3) The capital project management rule shall include at least the following items:
(A) Delineation of the governing board's responsibilities with respect to capital project management and the responsibilities delegated to the institution's president;
(B) A requirement for the use of the state's standard contract documents for architectural, engineering, construction, construction management and design-build services as appropriate to a particular project;
(C) The governing board's requirements for the following procedures:
(i) Monitoring and approving project designs to ensure conformance with the state and system goals, objectives and priorities and the governing board's master plan, compact and campus development plan;
(ii) Approval of project budgets, including a reasonable contingency reserve for unknown or unexpected expenses and for bidding;
(iii) Approval of architectural, engineering, construction and other capital contracts exceeding an amount to be determined by the governing board;
(iv) Approval of contract modifications and construction change orders; and
(v) Project closeout and final acceptance of the project by the governing board.
(4) The institutional capital project management rule shall be filed with the Commission no later than one hundred eighty days following the effective date of the rule required of the Commission and Council in section seventeen of this article.
(5) The Commission may review or audit projects greater than $5 million periodically to ascertain that appropriate capital project management practices are being employed.
(d) For institutions that have entered into construction contracts averaging at least $20 million, but not more than $50 million, over the most recent rolling five-year period:
(1) The governing board, with assistance as requested from the Commission, shall manage all capital projects if the governing board meets the following conditions:
(A) Employs at least one individual experienced in capital project development and management; and
(B) Adopts a capital project management rule that is approved by the Commission. The capital project management rule may be amended at the discretion of the governing board, but amendments shall be submitted to the Commission for review and approval before becoming effective.
(2) The institutional capital project management rule shall include at least the following items:
(A) Delineation of the governing board's responsibilities with respect to capital project management and the responsibilities delegated to the institution's president;
(B) A requirement for the use of the state's standard contract documents for architectural, engineering, construction, construction management and design-build services as appropriate to a particular project; and
(C) The governing board's requirements for the following procedures:
(i) Monitoring and approving project designs to ensure conformance with the state and system goals, objectives and priorities and the governing board's master plan, compact and campus development plan;
(ii) Approval of project budgets, including a reasonable contingency reserve for unknown or unexpected expenses and for bidding;
(iii) Approval of architectural, engineering, construction and other capital contracts exceeding an amount to be determined by the governing board;
(iv) Approval of contract modifications and construction change orders; and
(v) Project closeout and final acceptance of the project by the governing board.
(3) If an institution does not meet the provisions of this subsection, the Commission shall manage all capital projects exceeding $1 million.
(4) The Commission staff shall review and audit periodically all projects greater than $1 million to ascertain that appropriate project management practices are being employed. If serious deficiencies are identified and not addressed sufficiently within ninety days, Commission staff may assume management of all projects.
(e) For institutions that have entered into construction contracts averaging less than $20 million over the most recent rolling five-year period and for all community and technical colleges, the Commission and Council shall manage capital projects exceeding $1 million. In the rule required by section seventeen of this article, the Commission and Council, as appropriate, shall adopt procedures to afford participation by the governing boards and staff in the planning, development and execution of capital projects.
§18B-19-8. Maintenance.
(a) Each governing board shall ensure that facilities under its jurisdiction are maintained and that a listing of any major deferred maintenance projects is provided annually to the Commission or Council, as appropriate.
(b) Each governing board shall move toward annually investing an amount for maintenance that is consistent with the building renewal formula developed and approved by the Commission and Council and to generate a reserve sufficient to address unexpected maintenance needs.
(c) The Commission and Council shall evaluate whether sufficient resources are being devoted by a governing board for maintenance based on the following criteria:
(1) Maintenance expenditures in comparison to building renewal formula estimates of appropriate expenditures; and
(2) Periodic evaluations of the conditions of facilities at the institution and its performance and effectiveness in maintaining its facilities.
§18B-19-9. Higher education facilities information system.
(a) The Commission and Council jointly shall develop and maintain a higher education facilities information system. The higher education facilities information system shall serve as a vehicle for carrying out the following functions:
(1) Acquisition of statewide data;
(2) Statewide standardization of space use and classification based on nationally recognized standards and measurements to facilitate comparisons among post-secondary education institutions within the state, as well as regionally and nationally; and
(3) Other purposes as determined by the Commission and Council.
(b) At a minimum the higher education facilities information system shall:
(1) Provide a statewide inventory of higher education facilities, including those acquired by long-term lease, lease- purchase or other arrangement whereby the institution has long-term beneficial use. The inventory shall include, but is not limited to, the institution and campus location of the facility, the construction date, the original cost, square footage, floor plans, type of construction, ownership status, the purposes for which it is used, the current replacement cost and any other data the Commission and Council consider appropriate;
(2) Provide an inventory of all rooms within each facility, which includes, but is not limited to, the room number, the square footage, room usage, number of student stations and any other data the Commission and Council consider appropriate;
(3) Provide a vehicle for institutions to submit capital appropriation requests to the Commission and Council;
(4) Provide a vehicle to track the status and cost of institution capital projects from inception to completion, including major maintenance and deferred maintenance projects; and
(5) Provide the facility information needed to calculate the building renewal formula.
(c) The Commission and Council shall establish benchmarks for classroom and class laboratory use. An analysis of utilization shall be performed for the fall and spring semesters of each academic year. The efficient use of classrooms and class laboratories is a factor in determining whether an institution needs additional classroom and laboratory facilities.
(d) Each governing board and any institution under its jurisdiction shall participate and cooperate with the Commission and Council in all respects in the development and maintenance of the higher education facilities information system.
(e) The higher education facilities information system may be used for other purposes set forth by the Commission and Council in the rules required by section seventeen of this article.
§18B-19-10. Authorization to sell property; use of proceeds.
(a) Notwithstanding any other provision of law or this code to the contrary, the Commission, Council and governing boards each may sell, lease, convey or otherwise dispose of all or part of any real property that it owns, either by contract or at public auction, and retain the proceeds of the transaction. The Commission, Council and governing boards may not sell, lease, convey or otherwise dispose of any real property without first performing the following steps:
(1) Having the property appraised by two independent licensed appraisers and may not sell the property for less than the average of the two appraisals;
(2) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
(3) Holding a public hearing on the issue in the county in which the real property is located; and
(4) In the case of the Commission, notifying the Joint Committee on Government and Finance.
(b) The Commission, Council or a governing board shall deposit the net proceeds from the sale, lease, conveyance or other disposal of real property into a special revenue account in the State Treasury to be appropriated by the Legislature in the annual budget bill for the purchase of additional real property, equipment or technology, or for capital improvements or maintenance at the institution that sold the surplus real property.
§18B-19-11. Authorization to lease-purchase.
(a) The Commission or Council may enter into lease-purchase agreements for capital improvements, including equipment, on behalf of, or for the benefit of, a state institution of higher education, the Commission or Council.
(b) After the Commission or Council, as appropriate, has granted approval for a lease-purchase agreement by a governing board, the board may enter into a lease-purchase agreement for capital improvements, including equipment.
(c) The governing boards of Marshall University and West Virginia University may enter into lease-purchase agreements for the state institutions of higher education known as Marshall University and West Virginia University without seeking the approval of the Commission.
(d) A lease-purchase agreement constitutes a special obligation of the State of West Virginia. The obligation may be met from any funds legally available to the Commission, Council or the institution and shall be cancelable at the option of the Commission, Council, governing board or institution at the end of any fiscal year. The obligation, or any assignment or securitization of the obligation, 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 of the state. The facts shall be plainly stated in any lease-purchase agreement.
(e) A lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the agreement as to form by the Attorney General. Proposals for any agreement shall be requested in accordance with the requirements of this section and rules of the Commission and Council. In addition, any lease-purchase agreement that exceeds $100,000 total shall be approved as to form by the Attorney General.
(f) 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.
§18B-19-12. Authorization to lease.
(a) Notwithstanding any other provision of this code to the contrary, the Commission, Council and governing boards may, in the name of the state, lease, or offer to lease, as lessee, any grounds, buildings, office or other space.
(b) 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 institutions.
(c) Before executing any rental contract or lease, the Commission, Council or a governing board shall determine the fair market 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 market value.
(d) The Commission, Council and governing boards may enter into long-term agreements for buildings land and space for periods longer than one fiscal year but not to exceed forty years.
(e) Any lease shall contain, in substance, all the following provisions:
(1) 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;
(2) 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 for the lease or otherwise acts to impair the lease or cause it to be canceled; and
(3) 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.
(f) The Commission, Council or institution that 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 that cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
(g) 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, or designee, of the Commission, Council or institution.
(h) Any lease or instrument exceeding $100,000 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.
§18B-19-13. Real property contracts and agreements.
(a) Except as provided elsewhere in this article, 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, shall be approved by the Commission or Council, as appropriate, and provided to the Joint Committee on Government and Finance for prior review, if the transaction exceeds $1 million.
(b) The Commission, Council and each governing board shall provide the following to the Joint Committee on Government and Finance:
(1) A copy of any contract or agreement for real property exceeding $1 million to which it is a party; and
(2) A report setting forth a detailed summary of the terms of such contract or agreement, including the name of the property owner and the agent involved in the sale.
(c) The copy and report required by subsection (b) of this section shall be provided at least thirty days before any sale, exchange, transfer, purchase, lease-purchase, lease or rental of real property, refundings of lease-purchases, leases or rental agreements, construction of new buildings, and any other acquisition or lease of buildings, office space or grounds.
(d) A contract or agreement that is for the lease purchase, lease or rental of real property, where the costs of real property acquisition and improvements are to be financed, in whole or in part, with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.
(e) For renewals of contracts or agreements required by this section to be reported, the Commission, Council or governing board shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the property owner.
(f) The Joint Committee on Government and Finance shall meet and review any contract, agreement or report within thirty days of receipt.
(g) Each governing board shall provide to the Commission or Council, as appropriate, a copy of any contract or agreement submitted to the Joint Committee on Government and Finance pursuant to this section.
§18B-19-14. Authorization for sale lease-back.
(a) Notwithstanding any other provision of this code to the contrary and upon approval of the Commission or Council, as appropriate, before incurring any obligation, a governing board may sell any building that is on unencumbered real property to which the board holds title and lease back the same building. The board may deposit the net proceeds of the transaction into a special revenue account in the State Treasury to be appropriated by the Legislature for the use of the institution at which the real property is located. Prior to such action, the board shall take the following steps:
(1) Have the property appraised by two licensed appraisers and may not sell the property for less than the average of the two appraisals; and
(2) Retain independent financial and legal services to examine fully all aspects of the transaction.
(b) The sale may be made only to a special purpose entity that exists primarily for the purpose of supporting the institution at which the building is located.
§18B-19-15. Construction and operation of auxiliary facilities; fees for auxiliary enterprises.

(a) A governing board may provide, construct, erect, improve, equip, maintain and operate auxiliary facilities, as defined in section two of this article, for students, employees and visitors on land it owns or leases.
(b) The cost of construction, erection, improvement or equipment may be payable with the proceeds of revenue bonds authorized by this code or by any other financing method provided in this article.
(c) A governing board may engage engineering, architectural, construction and other experts as it considers necessary, and may specify the payment and contract terms, which are included in the cost of the project.
(d) A governing board may establish rules and charge fees for use of its facilities. The fees charged shall be structured so as to generate funds sufficient for the following purposes:
(1) To maintain payment of the principal of and interest on any revenue bonds, and for reserves for the revenue bonds;
(2) To operate the auxiliary enterprise;
(3) To satisfy annual building renewal formula requirements; and
(4) To build a reserve for major renovation or replacement.
(e) All moneys collected for the use of auxiliary facilities shall be paid to the credit of and expended by that institution in accordance with the provisions of section thirteen, article ten of this chapter.
§18B-19-16. Condemnation generally.
(a) The Commission, Council and governing boards each may acquire by condemnation land or buildings for the use and benefit of any state institution under its jurisdiction. Any condemnation proceeding conducted pursuant to this section is governed by chapter fifty-four of this code.
(b) The Commission, Council and governing boards each may condemn any interest, right or privilege, land or improvement, which in its opinion is necessary, in the manner provided by law for the acquisition by this state of property for public purposes. The state is under no obligation to accept and pay for any property condemned and, in any event, may pay for the property only from the funds provided for that purpose.
(c) In any proceeding to condemn, the order shall be made by the court having jurisdiction of the suit, action or proceedings. A bond or other security may be required by the court securing the property owner against any loss or damage to be sustained by reason of the state's failure to accept and pay for the property. The bond or security may not impose liability or debt on or of the state as contemplated by the provisions of the Constitution of the state in relation to state debt.
§18B-19-17. Legislative rule.
The Commission and Council jointly shall propose a rule or rules for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, to implement the provisions of this article.
§18B-19-18. Reporting.
(a) Beginning July 1, 2012, and annually thereafter, the Commission and Council shall provide a general status report to the Legislative Oversight Commission on Education Accountability on the progress being made in implementing the state-wide capital development plan and on the progress of the governing boards in implementing the objectives of institutions' campus development plans.
(b) The process required by the Commission and Council for reporting by the governing boards shall be included in the rules required by section seventeen of this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22. STATE LOTTERY ACT.
§29-22-18. State Lottery Fund; appropriations and deposits; not part of general revenue; no transfer of state funds after initial appropriation; use and repayment of initial appropriation; allocation of fund for prizes, net profit and expenses; surplus; State Lottery Education Fund; State Lottery Senior Citizens Fund; allocation and appropriation of net profits.

(a) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the State Lottery Fund is continued. 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 from the sale of lottery tickets, materials and games shall be deposited with the State Treasurer and placed into the State Lottery Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall may not be treated by the State Auditor and State Treasurer as part of the general revenue of the state.
(b) No An appropriation, loan or other transfer of state funds may not be made to the Commission or Lottery Fund after the initial appropriation.
(c) A minimum annual average of forty-five percent of the gross amount received from each lottery shall be allocated and disbursed as prizes.
(d) Not more than fifteen percent of the gross amount received from each lottery may be allocated to and may be disbursed as necessary for fund operation and administration expenses: Provided, That for the period beginning the first day of the month following the first passage of a referendum election held pursuant to section seven, article twenty-two-c of this chapter and for eighteen months thereafter, not more than seventeen percent of the gross amount received from each lottery shall be allocated to and may be disbursed as necessary for fund operation and administration expenses.
(e) The excess of the aggregate of the gross amount received from all lotteries over the sum of the amounts allocated by subsections (c) and (d) of this section shall be allocated as net profit. In the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate to an amount not to exceed $250,000. On a monthly basis, the director shall report to the Joint Committee on Government and Finance of the Legislature any surplus in excess of $250,000, and remit to the State Treasurer the entire amount of those surplus funds in excess of $250,000, which shall be allocated as net profit.
(f) After first satisfying the requirements for funds dedicated to the School Building Debt Service Fund in subsection (h) of this section to retire the bonds authorized to be issued pursuant to section eight, article nine-d, chapter eighteen of this code, then satisfying the requirements for funds dedicated to the Education, Arts, Sciences and Tourism Debt Service Fund in subsection (i) of this section to retire the bonds authorized to be issued pursuant to section eleven-a, article six, chapter five of this code, and then satisfying the requirements for funds dedicated to the Community and Technical College Capital Improvement Fund in subsection (j) of this section to retire the bonds for community and technical college capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, and then satisfying the requirements for funds dedicated to the Higher Education Policy Commission Capital Improvement Fund in subsection (k) of this section to retire the bonds for college and university capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, any and all remaining funds in the State Lottery Fund shall be made available to pay debt service in connection with any revenue bonds issued pursuant to section eighteen-a of this article, if and to the extent needed for such that purpose from time to time. The Legislature annually shall annually appropriate all of the remaining amounts allocated as net profits in subsection (e) of this section, in such the proportions as it considers beneficial to the citizens of this state, to: (1) The Lottery Education Fund created in subsection (g) of this section; (2) the School Construction Fund created in section six, article nine-d, chapter eighteen of this code; (3) the Lottery Senior Citizens Fund created in subsection (k) (l) of this section; and (4) the Division of Natural Resources created in section three, article one, chapter twenty of this code and the West Virginia Development Office as created in section one, article two, chapter five-b of this code, in accordance with subsection (l) (m) of this section. No A transfer to any account other than the School Building Debt Service Fund, the Education, Arts, Sciences and Tourism Debt Service Fund, the Community and Technical College Capital Improvement Fund, the Higher Education Policy Commission Capital Improvement Fund, the Economic Development Project Fund created under section eighteen-a, article twenty-two, chapter twenty-nine of this code, or any fund from which debt service is paid under subsection (c), section eighteen-a of this article may not be made in any period of time in which a default exists in respect to debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission, the Economic Development Authority or which are otherwise secured by lottery proceeds. No An additional transfer may not be made to any account other than the School Building Debt Service Account, and the Education, Arts, Sciences and Tourism Debt Service Fund, and the Community and Technical College Capital Improvement Fund and the Higher Education Policy Commission Capital Improvement Fund when net profits for the preceding twelve months are not at least equal to one hundred fifty percent of debt service on bonds issued by the School Building Authority, the State Building Commission and the Higher Education Policy Commission which are secured by net profits.
(g) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the Lottery Education Fund is continued. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which shall be deposited into the Lottery Education Fund by the State Treasurer. The Lottery Education Fund also shall also consist of all interest earned from investment of the Lottery Education Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Education Fund from any source. The revenues received or earned by the Lottery Education Fund shall be disbursed in the manner provided below in this section and may not be treated by the State Auditor and State Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Education Fund to the state system of public and higher education for these educational programs it considers beneficial to the citizens of this state.
(h) On or before the twenty-eighth day of each month, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the School Building Debt Service Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code, as a first priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1994, as certified to the lottery director in accordance with the provisions of section six, article nine-d, chapter eighteen of this code. In no any event, shall the monthly amount allocated may not exceed $1.8 million, nor may the total allocation of the net profits to be paid into the School Building Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $18 million. In the event there are insufficient funds available in any month to transfer the amount required to be transferred pursuant to this subsection to the School Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $27 million annually, may be granted by the School Building Authority in favor of the bonds it issues which are secured by the net lottery profits. When the school improvement bonds, secured by profits from the lottery and deposited in the School Debt Service Fund, mature, the profits shall become available for debt service on additional school improvement bonds as a first priority from the net profits of the lottery or may at the discretion of the authority be placed into the School Construction Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code.
(i) Beginning on or before July 28, 1996, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Education, Arts, Sciences and Tourism Debt Service Fund created pursuant to the provisions of section eleven-a, article six, chapter five of this code, as a second priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1996, as certified to the lottery director in accordance with the provisions of that section. In no any event may the monthly amount allocated may not exceed $1 million, nor may the total allocation paid into the Education, Arts, Sciences and Tourism Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Education, Arts, Sciences and Tourism Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A second-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $15 million annually, may be granted by the State Building Commission in favor of the bonds it issues which are secured by the net lottery profits.
(j) Beginning on or before July 28, 2008, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Community and Technical College Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after April 1, 2008, as certified by the lottery director in accordance with the provisions of that section. In no any event may the monthly amount allocated may not exceed $500,000, nor may the total allocation paid to the Community and Technical Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $5 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Community and Technical College Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.
(1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $7.5 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues which are secured by the net lottery profits. When the bonds secured by the profits from the lottery and deposited in the Education, Arts, Sciences and Tourism Debt Service Fund as provided in subsection (i) of this section mature or are paid in full, the bonds issued by the Higher Education Policy Commission for which lottery profits are pledged as provided in this subsection shall be considered to have a second-in-priority lien on the net profits deposited in the State Lottery Fund.
(2) When the community and technical college capital improvement bonds secured by profits from the lottery and deposited in the Community and Technical College Capital Improvement Fund mature, the profits shall become available for debt service on additional community and technical college capital improvement bonds, if approved by resolution of the Legislature, as a second priority from the net profits of the lottery.
(3) The Council for Community and Technical College Education shall approve all community and technical college capital improvement plans prior to the distribution of bond proceeds.
(k) Beginning on the twenty-eighth day of the month after the bonds secured by the profits from the lottery and deposited in the Education, Arts, Sciences and Tourism Debt Service Fund as provided in subsection (i) of this section mature or are paid in full and on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Higher Education Policy Commission Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after May 1, 2009, as certified by the lottery director in accordance with the provisions of that section. In any event, the monthly amount allocated may not exceed $1 million, nor may the total allocation paid to the Higher Education Policy Commission Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Higher Education Policy Commission Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.
(1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $15 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues under this subsection and which are secured by the net lottery profits.
(2) When the college and university capital improvement bonds secured by profits from the lottery and deposited in the Higher Education Policy Commission Capital Improvement Fund mature, the profits shall become available for debt service on additional college and university capital improvement bonds, if approved by resolution of the Legislature, as a third priority from the net profits of the lottery.
(3) The Higher Education Policy Commission shall allocate at least thirty percent of funds generated from the sale of bonds pursuant to this subsection equally between the state's two doctoral degree-granting universities to further the objective of developing greater research capacity set forth in subdivision (8), subsection (b), section three, article one-d of this chapter.
(k) (l) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the Lottery Senior Citizens Fund is continued. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which amounts shall be deposited into the Lottery Senior Citizens Fund by the State Treasurer. The Lottery Senior Citizens Fund also shall also consist of all interest earned from investment of the Lottery Senior Citizens Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Senior Citizens Fund from any source. The revenues received or earned by the Lottery Senior Citizens Fund shall be distributed in the manner provided below in this subsection and may not be treated by the State Auditor or State Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Senior Citizens Fund to any senior citizens medical care and other programs it considers beneficial to the citizens of this state.
(l) (m) The Division of Natural Resources and the West Virginia Development Office, as appropriated by the Legislature, may use the amounts allocated to them pursuant to subsection (f) of this section for one or more of the following purposes:
(1) The payment of any or all of the costs incurred in the development, construction, reconstruction, maintenance or repair of any project or recreational facility, as these terms are defined in section four, article five, chapter twenty of this code, pursuant to the authority granted to it under said article;
(2) The payment, funding or refunding of the principal of, interest on or redemption premiums on any bonds, security interests or notes issued by the parks and recreation section of the Division of Natural Resources under article five, chapter twenty of this code; or
(3) The payment of any advertising and marketing expenses for the promotion and development of tourism or any tourist facility or attraction in this state.
The bill (Eng. Com. Sub. for H. B. No. 2961), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2976, Requiring the State Fire Commission to promulgate rules pertaining to the State Building Code.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page three, section five-b, by striking out all of subsection (c) and inserting in lieu thereof the following:
(c) The State Fire Commission shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to include the following building energy codes in the State Building Code:
(1) The 2009 edition of the International Energy Conservation Code for residential buildings or other building energy code or codes for residential buildings that meets or exceeds equivalent energy savings; and
(2) The ANSI/ASHRAE/IESNA Standard 90.1-2007 building energy code for commercial buildings or other building energy code or codes for commercial buildings that meets or exceeds equivalent energy savings.

The bill (Eng. Com. Sub. for H. B. No. 2976), as amended, was then ordered to third reading.
Eng. House Bill No. 3047, Clarifying that the Director of the Public Employees Insurance Agency is authorized to enter into capitated provider arrangements for provision of primary health care services.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3074, Allowing the Secretary of State to notify people with delinquent taxes by certified mail.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 3170, Clarifying the filing and review of the periodic accountings of conservators of incapacitated protected persons.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13, §44A-2-13a, §44A-2-14 and §44A-2-15 of said code be amended and reenacted; that §44A-3-11 of said code be amended and reenacted; and that §44A-4-1 and §44A-4-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-7. Transfer of venue following appointment.
(a) Following the appointment of a full or limited guardian or conservator or committee, the court with jurisdiction over the proceeding may upon petition, order the transfer of jurisdiction to another circuit court in this state or to an appropriate tribunal in another state if it appears to the court that the interests of the protected person will be best served by such transfer. Transfer of jurisdiction to another state shall be in accordance with the provisions of chapter forty-four-c of this code.
(b) Upon the transfer, the court shall appoint a new previously appointed guardian or conservator in shall report to the county of transfer that is assuming jurisdiction and shall discharge the original appointee. Any changes to the appointments shall be made by the court assuming jurisdiction.
§44A-1-9. Posting of bonds; actions on bond.
(a) The court has the discretion to determine whether the posting of a bond by a guardian, once appointed, is necessary. No bond is required of any sheriff or representative of the Department of Health and Human Resources appointed as conservator or guardian, respectively.
(b) The court shall require order the posting of a bond by a conservator upon prior to appointment except where the conservator is excused from posting bond under the provisions of section eighteen, article four, chapter thirty-one-a of this code. In determining the amount or type of a conservator's bond, the court or mental hygiene commissioner shall consider:
(1) The value of the personal estate and annual gross income and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the requirement that accountings be filed and presented or permitting accountings to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable directly to a facility responsible for or which has assumed responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a nomination which requested that bond be waived.
(c) Any required bond shall may be with a surety and in an amount and form as the court may order and the court may order additional bond or reduce the bond whenever the court finds that a modification is in the best interests of the protected person or of the estate. The court may allow a property bond in lieu of a cash bond. Proof of bonding must be submitted to the court within thirty days of appointment entry of the order regarding bond.
(d) In case of a breach of any condition placed on the bond of any guardian or conservator, an action may be instituted by any interested person for the use and benefit of the protected person, for the estate of the protected person or for the beneficiaries of the estate.
(e) The following requirements and provisions apply to any bond which the court may require under this section:
(1) Sureties are jointly and severally liable with the guardian or conservator and with each other;
(2) By executing an approved bond of a guardian or conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party respondent. Notice of any proceeding must be delivered to the surety or mailed by registered or certified mail to the address of the surety listed with the court in which the bond is filed. If the party initiating a proceeding possesses information regarding the address of a surety which would appear to be more current than the address listed with the court, notice shall also be mailed by registered or certified mail to the last address of the surety known to the party initiating the proceeding;
(3) On petition of a successor guardian or conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the preceding guardian or conservator; and
(4) The bond of the guardian or conservator is not void after any recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the guardian or conservator is barred by adjudication or limitation.
§44A-1-10. Mandatory education; written material; and forms.
(a) Any individual appointed to serve as a guardian or conservator must receive educational material or complete mandated educational training, unless the court enters an order stating that the individual does not require the mandated educational training because he or she has completed the mandated educational training within the last three years.
(b) Upon a determination that the individual who is the subject of proceedings under this chapter is a protected person, as defined in section four of this article, the required educational training must be completed within thirty days of the court's determination. Upon completion, the appointed guardian or conservator shall provide an affidavit to the court, certifying that the educational training has been completed, and the court shall forthwith issue the order of appointment in accordance with the provisions of section thirteen, article two of this chapter.
(c) The secretary of health and human resources shall develop and implement an educational program for guardians and conservators. The secretary The West Virginia Supreme Court of Appeals shall coordinate the education program for guardians and conservators, shall update the program materials and requisite forms at least every two years and shall also propose legislative rules for promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, regarding mandatory educational training for guardians and conservators. The educational training may include the following:
(1) Written materials;
(2) Recorded information, whether audio, visual or both; or
(3) A combination of the above.
§44A-1-14. Temporary protective orders.
The court or mental hygiene commissioner may, at the request of a petitioner or upon its own motion, issue a temporary protective order orders freezing bank or investment accounts, ordering the production of records and otherwise prohibiting or limiting the expenditure, sale or other legal transfer of any assets of the alleged protected person until the appointment proceeding has been held a final order is entered revoking the protective orders.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees; special revenue account established; duties of Auditor.

(a) A petition for the appointment of a guardian or conservator shall be filed with the clerk of the circuit court in the county in which the alleged protected person resides or, if an alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located. A petition for the appointment of a conservator for a missing person shall be filed with the clerk of the circuit court in the county in which the missing person last resided. The circuit clerk is not required to accept for filing a petition that is not administratively complete.
(b) The circuit court in which the proceeding is first commenced shall have exclusive jurisdiction unless that court determines that a transfer of venue would be in the best interests of the person alleged to need protection.
(c) The fee for filing a petition shall be ninety $110 payable upon filing to the circuit clerk, $75 of which shall be retained by the circuit clerk and fifteen $35 of which shall be remitted by the circuit clerk to the special revenue account in the State Treasury created in subsection (d) (e) of this section.
(d) The person bringing the petition shall be responsible for fees for filings of filing the petition and other papers, for service of process, and for copies of court documents and transcripts. In the event that a guardian, conservator, or both, is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's estate, if funds are available. Any person who is pecuniarily unable to pay such the fees and costs as set forth in article one, chapter fifty-nine of this code and article two, chapter fifty-one of this code will not be required to pay said the fees and costs.
(d) (e) There is hereby created in the State Treasury a special revenue account, which shall be an interest-bearing account, to be known as the Enforcement of Guardianship and Conservatorship Act Fund.
(e) (f) The accounts established The reports of guardians and inventory and accountings of conservators required by pursuant to the provisions of this chapter shall be examined annually semi- annually by the state auditor in accordance with the provisions of section seven, article nine, chapter six of this code, and the state auditor shall authorize payments from the fund created in this subsection (d) of this section for expenses incurred in performing such examinations. fiduciary commissioner or other person appointed by the court in accordance with section eleven, article three of this chapter.
(g) The special revenue account known as the Enforcement of Guardianship and Conservatorship Act Fund, previously administered by the State Auditor, shall, on and after the amendment and reenactment of this section, be administered by the West Virginia Supreme Court of Appeals. All moneys previously collected for deposit into the fund pursuant to this chapter and not expended in accordance with this chapter shall be transferred to the West Virginia Supreme Court of Appeals. All collections shall be deposited and used for payment of fiduciary commissioner or other person appointed by the court for review of the reports required by section eleven, article three of this chapter and the education program required by section ten, article one of this chapter.
§44A-2-5. Confidentiality.
Upon filing of a petition requesting appointment of a guardian or conservator, all pleadings, exhibits and other documents contained in the court file shall be considered confidential and not open for public inspection, either during the pendency of the case or after the case is closed. However, the contents of the court file shall be open to inspection and copying by the parties, their designees, and their attorneys The protected person, and his or her attorney, may inspect or copy the file. Another party may file a petition stating the reasons for inspecting or copying the file and, upon good cause shown, the court or mental hygiene commissioner may authorize the party, or his or her attorney, to inspect and copy the file.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour and location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served with the notice, a copy of the petition and the evaluation report not less than fourteen days before the hearing. The person may not waive notice and a failure to properly notify the person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the petition, shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to all individuals seven years of age or older and to all entities whose names and post office addresses appear in the petition. In the case of a missing person, a copy of the petition for the appointment of a conservator shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to the last known address of the missing person. A copy of certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of hearing. It is the responsibility of the petitioner to obtain proper service and file the appropriate documentation with the circuit clerk before the hearing.
(d) The notice shall include a brief statement in large print of the purpose of the proceedings and shall inform the alleged protected person of the right to appear at the hearing, the right to an attorney and the right to object to the proposed appointment. Additionally, the notice shall include the following statement in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING

THAT YOU ARE INCAPACITATED

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
(e) No person may be appointed a guardian or conservator without first receiving proper notice and having the opportunity for to be present at a hearing.
§44A-2-7. Appointment of counsel.
(a) The court shall appoint legal counsel for the alleged protected person to make recommendations to the court that are in the best interests of the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person, or an alleged protected person may hire and pay for an attorney of his or her choice.
(b) Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian or conservator is needed; (2) limitation of the role of the guardian or conservator to the protected person's specific needs -- e. g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity with the greatest interest in that will act in the best interest of the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client's needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal, including obtaining medical and financial records; (7) file appropriate motions, including temporary protective orders; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is introduced; (12) review all medical reports; (13) apprise the decision maker of the individual's desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony; and otherwise zealously represent the interests and desires of the client; (16) raise appropriate questions to all nominations for guardian and conservator and the adequacy of the bond; (17) take all steps to limit the scope of guardianship and conservatorship to the individual's actual needs, and make all arguments to limit the amount of the intervention; (18) ensure that the court considers all issues as to the propriety of the individual's current or intended housing or placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; and (20) file a motion for modification of an order or a petition for a writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination upon counsel being reappointed by the court; and (21) otherwise zealously represent the interests and desires of the client while also reporting to the court what actions are in the best interests of the client.
(d) The protected person shall have the right to an independent expert of his or her choice to perform an evaluation and present evidence.
(e) A person appointed by the court as counsel for a nonindigent alleged protected person shall inform the court or the mental hygiene commissioner of his or her hourly rate at the onset of the case and seek approval of his or her fee for the case by submitting it to the court or the mental hygiene commissioner for approval using forms provided by the West Virginia Supreme Court of Appeals. The hourly rate and fee for the case must be reasonable in light of the going rate for legal services, the complexity of the matter and the amount of legal work involved. The court may set the fee at the time of appointment.
§44A-2-12. Limited conservatorships.
(a) A limited conservator may be appointed for an individual deemed to be a protected person in need of a conservator within the meaning of section four, article one of this chapter, but whose property or financial affairs are so limited that there is only one or more designated contexts for which a limitation of the individual's legal rights is warranted.
(b) No conservator shall be appointed for a person whose only source or major source of income and property is from the Social Security Administration and who has a representative payee functioning in the best interest of the individual, or for such other person whose opportunity for regular expenditure of resources is so limited that the only practical effect of the appointment of a conservator would be to deprive the individual of the right of daily decisions involving minor personal matters.
§44A-2-13. Order of appointment; notice; notice of appointment.
(a) An order appointing a guardian or conservator may only be issued by the court upon the following:
(1) The guardian or conservator has subscribed to and filed an oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under the provisions of section ten, article one of this chapter, unless the court enters an order stating that an individual does not require educational training because he or she has completed the mandatory education within the last three years.
(b) In addition to the findings of fact and conclusions of law required in section nine of this article, the order shall include the specific areas of protection or assistance granted in the case of a guardian and the specific areas of management and assistance granted in the case of a conservator and address other areas of concern pursuant to the circumstances of the case.
(c) Within fourteen days following the entry of an order of appointment, the guardian or conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the protected person and to all individuals and entities given notice of the petition.
(d) Within ten days following the entry of an order of appointment, the circuit clerk shall mail a notice of appointment for recordation in the office of the clerk of the county commission to be recorded with the records of deeds and records of powers of attorneys, and listed in the appropriate indexes under the name of the protected person stating the case name and number, the name of the protected person, and the names of the guardian and conservator so that persons are put on notice of the existence of a guardianship or conservatorship.
§44A-2-13a. Time of entry of orders.
The mental hygiene commissioner or the court shall prepare an order within fourteen days of the hearing directing the appointees to complete the mandatory education and post any required bond within thirty days of the hearing. After the mandatory education is completed and the bond posted, then the court shall enter a final order on the petition within fourteen days.
§44A-2-14. Temporary guardians and conservators.
(a) The court may appoint a temporary guardian or temporary conservator, or both, under this section upon a finding that an immediate need exists, that adherence to the procedures otherwise set forth in this chapter for the appointment of a guardian or conservator may result in significant harm to a person or the estate, and that no other individual or entity appears to have authority to act on behalf of the person, or that the individual or entity with authority to act is unwilling, or has ineffectively or improperly exercised the authority.
(b) A temporary guardian or temporary conservator shall have only those powers and duties which that are specifically set forth in the order of appointment. The appointment of a temporary guardian or temporary conservator shall expire within forty-five days six months unless it is terminated or extended for up to six months by the court for an additional forty-five days for good cause shown.
or mental hygiene commissioner for good cause shown following a hearing.
(c) An appointment of a temporary guardian or temporary conservator shall be made upon timely and adequate notice to the protected person after appointment or notice of appearance of counsel and after all other protections have been afforded, in accordance with due process of law, including any other conditions as the court may order. The protected person may petition the court for a substitution of a temporary guardian or temporary conservator at any time.
(d) Within five days following the entry of an order of appointment, a temporary guardian or temporary conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the person for whom the appointment was made and to all individuals and entities that would be entitled to notice of hearing on a petition for appointment as set forth in section six of this article.
§44A-2-15. Notice of hearing on petitions subsequent to the appointment of a guardian or conservator.

(a) Except as otherwise provided herein or as ordered by the court for good cause shown, notice of hearing on a petition for an order subsequent to the appointment of a guardian or conservator shall be personally served upon the protected person and mailed to all attorneys of record an appointed counsel or attorney of record, to those individuals who would be entitled to notice of the filing of an original petition to appoint, to any facility that is responsible for the care or and custody of the protected person, to the guardian or conservator, if the guardian or conservator is not the petitioner, and to such other individuals or entities as the court may order.
(b) Unless otherwise ordered by the court, the notice shall be personally served upon the protected person or and mailed by the petitioner by certified mail return receipt requested to other parties entitled to notice at least fourteen days prior to the hearing and shall be accompanied by a copy of the petition and other relevant documents. A copy of the certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of the hearing. If deceased, notice to a protected person shall be sent to his or her last known address or to his or her successors in interest, if known.
(c) The court or mental hygiene commissioner may conduct hearings on subsequent petitions filed pursuant to this chapter.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings; misdemeanor for failure to file; reporting elder abuse.

(a) Reports of guardians and accountings of conservators, as described in this article shall be filed with the circuit clerk of the county in which appointed on a semi-annual basis during the first twelve months of the guardian's or conservator's appointment and:
and also with the fiduciary commissioner of the county or other person if the court has made a referral in its order:
(1) Within six months of being appointed;
(1) (2) On the first day of February By December 31 of each year thereafter;
(2) (3) When the court orders additional reports or accountings to be filed;
(3) (4) When the guardian or conservator resigns or is removed; and
(4) (5) When the appointment of the guardian or conservator is terminated, except that in the case of a guardian, the court may determine that there is no need for a report upon the termination; and in the case of a conservator, no accounting is required if all persons entitled to any proceeds of the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic report or accounting on a calendar-year basis; however, in no event may such a report or accounting cover a period of more than one year. A calendar-year report or accounting shall be filed with the circuit clerk no later than the fifteenth day of April of the succeeding year. The circuit clerk shall notify the court if the required reports are not filed or are administratively incomplete. The fiduciary commissioner, or other person appointed by the court or mental hygiene commissioner, shall review the reports and accountings semiannually, and may request additional information from the guardian or conservator. If the reports or accountings are not filed, or if there are any questions or discrepancies in the reports or accountings, the person reviewing the report shall notify the court or mental hygiene commissioner for further investigation or action of the court, including but not limited to, a court order requesting copies of bank or investment records, appointing counsel to investigate the matter or setting a hearing on the matter.
(c) If the court has in its order made a referral to the fiduciary commissioner of the county:
(1) The accounting shall be governed by and the fiduciary commissioner shall handle the same under the provisions of sections ten, eleven, twelve, thirteen and fourteen, article four, chapter forty-four of this code, except that all compensation and expenses of the conservator shall be allowed and approved only by the circuit court in accordance with the provisions of section thirteen, article one of this chapter.
(2) The fiduciary commissioner may not publish any notice concerning the filing of a proposed accounting, but shall serve a copy of the proposed accounting of the conservator together with the notice by United States mail on the protected person, all individuals and entities given notice of the petition and any other person or entity found to be interested in the affairs of the protected person, all of whom have standing to file exceptions to or falsify the accounting before the fiduciary commissioner.
(3) In the settlement of the accounting of a conservator, the fiduciary commissioner is entitled to fees as are allowed for fiduciary commissioners in the handling of accountings of a decedent's estate, or as otherwise set by order of the circuit court.
(4) If the court or mental hygiene commissioner appoints a person other than the fiduciary commissioner to review the reports, such person shall report to the court as required by this article. The court shall establish a fee for reviewing a report which shall be paid by the Supreme Court of Appeals from the Enforcement of Guardianship and Conservatorship Act Fund.
(5) Any party feeling aggrieved of a settlement or decision by the fiduciary commissioner concerning the accounting may on motion filed within four months of the settlement or decision appeal the same to the circuit court.

(c) (d) Any person guardian or conservator who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty- five $100 nor more than one hundred dollars $500.
(e) The parties, attorneys or mental hygiene commissioner shall report violations of this section, or any other alleged elder abuse violations, including criminal elder abuse pursuant to section twenty-nine, article two, chapter sixty-one of this code, to the Department of Health and Human Resources or county prosecutor for further investigation and action.
(d) (f) The state auditor West Virginia Supreme Court of Appeals shall prescribe forms for reports, accountings and inventories required to be filed pursuant to the provisions of this article.
ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF APPOINTMENTS.

§44A-4-1. Termination of appointment of guardian or conservator.
(a) The appointment of a guardian or conservator shall terminate upon the death, resignation or removal of the guardian or conservator. or upon the termination of the guardianship or conservatorship.
(b) The appointment further terminates upon the death of the protected person. The guardian or conservator shall file the certified death certificate of the protected person with the circuit clerk with a final report or accounting.
(c) A guardianship or conservatorship shall terminate whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person.
(d) In the case of a missing person, a conservatorship shall terminate when the missing person is located or when the person's death is established by the production of a certified death certificate, or the person is presumed dead pursuant to the provisions of article nine, chapter forty-four of this code.
(e) The court or the mental hygiene commissioner shall prepare a termination order dismissing the guardianship or conservatorship case and discharging any bond posted by the guardian or conservator.
(f) A termination of an appointment does not affect the liability of a guardian or conservator for prior acts or the responsibility of a conservator to account for the estate of the protected person.
§44A-4-5. Duty of guardian or conservator subsequent to death of protected person.

A guardianship or conservatorship of a protected person shall terminate upon the death of the protected person: Provided, That in In the absence of an advanced directive, such as a will, living will or power of attorney, or preneed burial or cremation contract, after the death of the protected person, a guardian or a conservator, if there is no guardian, shall continue to have authority to make decisions regarding the body of the deceased protected person for the purposes of authorizing an autopsy and making funeral arrangements. The guardian's or conservator's authority shall continue until an executor or executrix or an administrator or administratrix has been appointed. A guardianship or conservatorship shall terminate whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person. In the case of a missing person, a conservatorship shall terminate when the person's death is established by the production of a certified death certificate, the person is presumed dead pursuant to the provisions of article nine, chapter forty-four of this code or the missing person is located.
The bill (Eng. H. B. No. 3170), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3278, Relating to the life and health insurance guaranty association.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Banking and Insurance, were reported by the Clerk, considered simultaneously, and adopted:
On page twenty, section five, line sixteen, by striking out the word "article" and inserting in lieu thereof the word "articles";
On page twenty, section five, line seventeen, after the word "twenty-four" by inserting the words "and twenty-five";
And,
On page forty-five, section eight, line two hundred fifty- six, by striking out the words "or otherwise" and inserting in lieu thereof the words "of the insurer's policyholders, payees or beneficiaries".
The bill (Eng. Com. Sub. for H. B. No. 3278), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed handgun licensing.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
O
n page six, section four, line seventy-six, by striking out the words "which shall" and inserting in lieu thereof a comma and the words "including a nationwide criminal background check, in order to";
On page six, section four, line seventy-eight, by striking out the word "are" and inserting in lieu thereof the word "is";
On page fourteen, section six-a, lines six and seven, by striking out all of subdivision (1);
And,
By renumbering the remaining subdivisions.
The bill (Eng. Com. Sub. for H. B. No. 3314), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3336, Continuing early intervention services to families with developmentally delayed infants and toddlers but eliminating the cost-free provision.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Eng. House Bill No. 2981, Relating to primary elections and nominating procedures of third-party candidates.
On third reading, coming up in deferred order, with an unreported Judiciary committee amendment pending, and with the right having been granted on Wednesday, April 8, 2009, for further amendments to be received on third reading, was again reported by the Clerk.
At the request of Senator Kessler, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, with the right to amend on third reading remaining in effect and with the unreported Judiciary committee pending.
Action as to Engrossed House Bill No. 2981 having been concluded, the Senate returned to the consideration of
Eng. House Bill No. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
On third reading, coming up in deferred order, was again reported by the Clerk.
At the request of Senator Stollings, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Stollings, the following amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-3-7 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 §55-7-26, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-7. Powers and duties of West Virginia Board of Medicine.

(a) The board is autonomous and, in accordance with the provisions of this article, shall administer and supervise examinations and determine qualifications of applicants for licenses to practice medicine and surgery, and to practice podiatry and to practice as a physician assistant for a physician licensed under this article, and shall issue licenses to qualified applicants and shall regulate the professional conduct and discipline of such individuals. In carrying out its functions, the board may:
(1) Adopt such regulations rules as are necessary to carry out the purposes of this article;
(2) Hold hearings and conduct investigations, subpoena witnesses and documents and administer oaths;
(3) Institute proceedings in the courts of this state to enforce its subpoenas for the production of witnesses and documents and its orders and to restrain and enjoin violations of this article and of any regulations rules promulgated under it;
(4) Employ investigators, attorneys, hearing examiners, consultants and such other employees as may be necessary, who shall be exempt from the classified service of the Division of Personnel and who shall serve at the will and pleasure of the board. In addition, all personnel employed through the Department of Health and Human Resources on June 30, 2009, to provide services for the board are hereby transferred to the board effective July 1, 2009. However, the employment, salary, benefits or position classification of any person transferred under this section may not be reduced or diminished by reason of this section. All persons transferred shall retain their coverage under the classified service of the Division of Personnel and all matters relating to job classification, job tenure and conditions of employment shall remain in force and effect from and after the date of this section, to the same extent as if this section had not been reenacted. Also, nothing herein shall prohibit the disciplining or dismissal of any employee for cause.
(5) Enter into contracts and receive and disburse funds according to law;
(6) Establish and certify standards for the supervision and certification of physician assistants;
(7) Authorize medical and podiatry corporations in accordance with the provisions and subject to the limitations of section fifteen of this article to practice medicine and surgery or podiatry through duly licensed physicians or podiatrists; and
(8) Establish a fee, not to exceed $50, for a reciprocal endorsement; and
(9) (8) Perform such other duties as are set forth in this article or otherwise provided for in this code.
(b) The board shall submit an annual report of its activities to the Legislature. The report shall include a statistical analysis of complaints received, charges investigated, charges dismissed after investigation, the grounds for each such dismissal and disciplinary proceedings and disposition.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-26. Limiting liability of physicians who render services to youth camps and programs.

(a) Any person licensed to practice medicine and surgery pursuant to the provisions of article three, chapter thirty of this code, or any person licensed to practice medicine and surgery as an osteopathic physician and surgeon pursuant to the provisions of article fourteen, chapter thirty of this code or any medical student, graduate medical student or nurse pursuant to the provisions of article seven, chapter thirty of this code and article seven-a of said chapter performing medical services under the direction of a medical or osteopathic physician licensed to practice in this state: (1) Who is acting in the capacity of a volunteer health care provider at any youth camp or program; and (2) who gratuitously and in good faith prior to the commencement of the youth camp or program agrees to render emergency care or treatment to a participant during the youth camp or program, without objection of the camp or program participant, shall not be held liable for any civil damages as a result of the care or treatment, or as a result of any act or failure to act in providing or arranging further medical treatment.
(b) The limitation of liability established by this section does not apply to acts or omissions constituting gross negligence or willful and wanton conduct.
(c) For purposes of this section, the provision of lodging, meals and articles of clothing by a youth camp or program may not be considered as financial remuneration.
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill, (Eng. H. B. No. 2801) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2801) passed.
On motion of Senator Stollings, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2801--A Bill to amend and reenact §30-3-7 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §55-7-26, all relating to
updating language and making technical changes clarifying that the Board of Medicine is an autonomous board which may hire its employees at the board's will and pleasure, and providing for continuation of employment and coverage under the classified service of the Division of Personnel for current employees ; and relating to the liability of physicians, osteopathic physicians, nurses, medical students and graduate medical students who render services as volunteer health care providers at youth camps and programs; limiting liability; and providing exceptions.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2801) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed handgun licensing
.
Having been read a second time, amended and ordered to third reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3314) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3314) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3314--A Bill to amend and reenact §61-7-4 and §61-7-6a of the Code of West Virginia, 1931, as amended, all relating to concealed handgun licensing generally; clarifying scope of license; clarifying that the investigation necessary for licensure shall include a nationwide criminal background check; requiring reissue application to be ruled on within forty-five days; eliminating social security number from issued license; related to the honoring of concealed handgun licenses issued by another state; eliminating requirement that a person holding a concealed handgun license from a reciprocating state be a resident of that state and requiring that a potential reciprocating state's licensure standards be similar to or greater than those of this state.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed until 5:30 p.m. today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Chafin, the Senate recessed for five minutes for the purpose of holding a meeting of the Committee on Rules at the rostrum.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fifth order of business.
Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 5:56 p.m. today:
Eng. Senate Bill No. 445, Removing conservation supervisors' election certification requirements.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 243, Relating to issuing general obligation bonds.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section four, line fourteen, by striking out the word "shall" and inserting in lieu thereof the word "may";
On page three, section four, line eighteen, by striking out the words "or magisterial district";
On page three, section four, line twenty, after the word "education," by inserting the words "as the case may be, shall,";
On page five, section four, line fifty-three, after the word "that" by inserting the word "the";
On page five, section four, line fifty-eight, after the word "that" by inserting the word "the";
On page five, section four, line sixty-two, by striking out the word "each" and inserting in lieu thereof the word "that";
On page six, section fourteen, line six, after the word "of" by inserting the word "the";
On page seven, section fourteen, line twenty-five, by striking out the word "are" and inserting in lieu thereof the words "will be";
On page eight, section fifteen-a, line one, by striking out the word "are" and inserting in lieu thereof the words "may be";
On page nine, section sixteen, line seven, after the word "when" by inserting the word "the";
On page twelve, section nineteen, line seven, by striking out the words "district or independent school district" and inserting in lieu thereof the words "county board of education";
On page twelve, section twenty-one, line two, after the word "bonds" by inserting the words "pursuant to this article";
And,
On page thirteen, section twenty-one, line ten, after the word "for" by inserting the word "the".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 243, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 243) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 256, Providing additional requirements for certain property annexation.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section four-a, lines one through seven, by striking out subsection (a) in its entirety and inserting in lieu thereof a new subsection (a), to read as follows:
(a) This section applies to the application of the provisions of section four of this article for municipalities in any county that has adopted local impact fees and a countywide zoning ordinance with designated urban growth boundaries before December 1, 2008.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 256) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 767, Relating to certain Medicaid program contracts.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §9-2-9 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 §9-2-9a; and that §9-4-3 of said code be amended and reenacted, all to read as follows:
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-9. Secretary to develop Medicaid monitoring and case management.

(a) The Secretary of the Department of Health and Human Resources shall:
(1) Develop a managed care system to monitor the services provided by the Medicaid program to individual clients;
(2) Develop an independent referral service, including the review of individual cases for abuses of the program; and
(3) Develop a schedule for implementation of the managed care and independent referral system. The managed care system shall focus on, but not be limited to, the behavioral health and mental health services.
(b) In addition thereto, and in accordance with applicable federal Medicaid laws, the secretary shall prepare recommendations, to be submitted to the Joint Committee on Government and Finance. In developing recommendations the secretary shall consider as options the following:
(1) Review of Medicaid services which are optional under federal Medicaid law and identification of services to be retained, reduced or eliminated;
(2) The elimination, reduction or phase-out of: (i) Services which are not generally available to West Virginia citizens not covered under the state's Medicaid program; or (ii) services which are not generally covered under group policies of insurance made available to employees of employers within the state;
(3) The elimination or reduction of services, or reduction of provider reimbursement rates, for identified services of marginal utility;
(4) Higher reimbursement rates for primary and preventive care;
(5) Changes in fee structure, which may include a system of prospective payments, and may include establishment of global fees for identified services or diagnoses including maternity care;
(6) Utilization caps for certain health care procedures;
(7) Restriction of coverage for cosmetic procedures;
(8) Identification of excessive use of certain health care procedures by individuals and a policy to restrict excessive use;
(9) Identification of services which reduce the need for more costly options for necessary care and retention or expansion of those programs;
(10) Identification of services for which preauthorization is a requirement for Medicaid reimbursement;
(11) Recommendations relating to the development of a demonstration project on long-term care, which demonstration project may be limited to patients with Alzheimer's Disease;
(12) A policy concerning the department's procedures for compliance, monitoring and inspection; and
(13) Such other options as may be developed.
(c) The secretary shall utilize in-state health care facilities for inpatient treatment when such facilities are available. Prior authorization, consistent with applicable federal law, shall be required for out-of-state inpatient treatment.
(d) The secretary shall report to the Joint Committee on Government and Finance on the development and implementation of Medicaid programs that provide incentives to working persons. The secretary shall consider: Subsidies for low income working persons; individual or small employer buy-ins to the State Medicaid Fund; prospective payment systems for primary care physicians in underserved areas; and a system to improve monitoring of collections, expenditures, service delivery and utilization.
(e) The secretary shall report quarterly to the Joint Committee on Government and Finance regarding provider and facility compliance with federal and state Medicaid laws, including, but not limited to, the following: The number of inspections conducted during the previous quarter; description of programs, services and facilities reviewed; findings; and recommendations for corrections.
(f) The secretary shall, upon federal certification of the claims management system, ensure that the claims management system processing Medicaid claims provides:
(1) Detailed quarterly financial reports to the Legislative Oversight Commission on Health and Human Resources Accountability;
(2) A management reporting system no later than July 1, 2006; and
(3) Specific utilization data by provider, member eligibility groups and service no later than October 1, 2006.
(g) The secretary shall provide public notice of any proposed amendment to the state plan for Medicaid or proposed changes to the reimbursement schedule for Medicaid. The notice shall be filed with the Secretary of State, for publication in the State Register, including the text of the proposed amendment and a fiscal note. The notice shall fix a date, time and place for the receipt of public comment in the form of written statements and any relevant documents. The proposed amendment may not be filed for federal approval until after the close of a thirty-day public comment period. If the Secretary of the Department of Health and Human Resources determines a submission or amendment of a proposed amendment to the state plan for Medicaid or proposed changes to the reimbursement schedule for Medicaid will have a substantial impact on services, on benefits, or on payments to providers he or she may, solely at his or her discretion, convene a public hearing. When rules are necessary to conform to changes in state or federal law where no agency discretion as to the substance of the rule is involved, then the provisions of this subsection shall not apply. However, if the Department of Health and Human Resources finds an emergency exists requiring that emergency rules be promulgated earlier than this subsection would permit, then such emergency rules together with a statement of the circumstances constituting the emergency shall be filed with the Secretary of State and a notice of such filing shall be published in the State Register. Such emergency rules shall become effective upon the approval of the Secretary of State in accordance with section fifteen-a, article three, chapter twenty-nine-a of this code, but promulgation of such emergency rules shall not otherwise waive the department's obligation to comply with this subsection.
§9-2-9a. Contract procedure for the Medicaid program.
(a) The secretary is authorized to execute a contract to implement professional health care, managed care, actuarial and health care-related monitoring, quality review/utilization, claims processing and independent professional consultant contracts for the Medicaid program.
(b) The provisions of article three, chapter five-a of this code do not apply to contracts set out in subsection (a) of this section: Provided, That the secretary shall comply with the requirements set forth in this section.
(c) The secretary shall develop procedures and requirements for competitive bidding and the awarding of contracts set out in subsection (a) of this section, which procedures and requirements shall include, but are not limited to, the following:
(1) Submitting public notice bids;
(2) The general terms and conditions for the contract;
(3) Awarding contracts; and
(4) The description of the commodities and services required for the contract, stated with sufficient clarity to assure that there is a comprehensive understanding of the contact's scope and requirements; and
(5) Contract management procedures which will ensure the assessment of contractor performance and compliance with contract requirements on a regular basis as appropriate for the specific contract, and no less frequently than on an annual basis for any contract awarded pursuant to the provisions of this section.
(d) The awarding of the contract may be based on:
(1) Best value;
(2) Low bid;
(3) Sole source; or
(4) Any other basis the secretary chooses to award or reject the bid: Provided, That the secretary shall document the basis of any decision made pursuant to the provisions of this subsection.
(e) The secretary may employ the services of independent professional consultants to assist in preparing solicitations or for the evaluation of any responses to such solicitations: Provided, That the independent professional consultant, or member of his or her immediate family, or business with which he or she is associated, may not have any interest in the profits or benefits of the contract for which he or she may participate in the preparation of the solicitation or in the evaluation of the response.
(f) The secretary may terminate any contract with thirty days' prior written notice.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY COUNCIL; GENERAL RELIEF FUND.

§9-4-3. Advisory council.
The advisory council, created by chapter one hundred forty-three, Acts of the Legislature, regular session, 1953, as an advisory body to the State Medicaid Agency with respect to the medical services fund and disbursements therefrom and to advise about health and medical services, is continued so long as the medical services fund remains in existence, and thereafter so long as the State Medicaid Agency considers the advisory council to be necessary or desirable, and it is organized as provided by this section and applicable federal law and has those advisory powers and duties as are granted and imposed by this section and elsewhere by law: Provided, That the continuation of the advisory council is subject to a preliminary performance review pursuant to the provisions of article ten, chapter four of this code, evaluating the effectiveness and efficiency of the advisory council, to be conducted during the interim of the Legislature in the year 2006 by the Joint Committee on Government Operations.
The term of office of those members serving on the advisory council, on the effective date of the amendments made to this section by the Legislature during its regular session in the year 1998, shall continue until they are reappointed or replaced in accordance with the provisions of this section.
The advisory council shall consist of not less than nine members, nor more than thirteen fifteen members, all but two four of whom shall be appointed by the State Medicaid Agency and serve until replaced or reappointed on a rotating basis. The heads of the Public Health and Public Welfare Agencies Bureau of Public Health and Bureau for Medical Services are members ex officio. The cochairs of the Legislative Oversight Commission on Health and Human Resources Accountability, or their designees, are nonvoting ex officio members. The remaining members comprising the council consist of a person of recognized ability in the field of medicine and surgery with respect to whose appointment the State Medical Association shall be afforded the opportunity of making nomination of three qualified persons, one member shall be a person of recognized ability in the field of dentistry with respect to whose appointment the State Dental Association shall be afforded the opportunity of nominating three qualified persons, and the remaining members shall be chosen from persons of recognized ability in the fields of hospital administration, nursing and allied professions and from consumers groups, including Medicaid recipients, members of the West Virginia Directors of Senior and Community Services, Labor Unions, Cooperatives and Consumer-sponsored Prepaid Group Practices Plans.
The council shall meet on call of the state Medicaid Agency.
Each member of the advisory council shall receive reimbursement for reasonable and necessary travel expenses for each day actually served in attendance at meetings of the council in accordance with the state's travel regulations. Requisitions for the expenses shall be accompanied by an itemized statement, which shall be filed with the Auditor and preserved as a public record.
The advisory council shall assist the State Medicaid Agency in the establishment of rules, standards and bylaws necessary to carry out the provisions of this section and shall serve as consultants to the State Medicaid Agency in carrying out the provisions of this section.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 767--A Bill to amend and reenact §9-2-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §9-2-9a; and to amend and reenact §9-4-3 of said code, all relating to the state Medicaid program; requiring public notice and comment of state plan amendments prior to submission for federal approval; providing for public comment; allowing emergency approval of certain rules; exempting certain contracts for the Medicaid program from the Division of Purchasing's competitive bid requirements; specifying contract management requirements; establishing procedures and requirements for awarding contracts; clarifying conflicts of interest provisions; and expanding membership of the Medicaid Advisory Board.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. S. B. No. 767) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2836, School Innovation Zones Act.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Wells, Browning and Barnes.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Snyder, Minard and Hall.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3017, Exempting from the consumers sales and service tax and use tax any sales of donated clothing or clothing accessories.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the request of the House of Delegates and receded from its amendments to the bill.
Engrossed Committee Substitute for House Bill No. 3017, as amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3017) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had returned to the Senate second reading calendar, Engrossed Committee Substitute for House Bill No. 2401.
The Senate again proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2401, Providing for the expiration of the alternative minimum tax.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2832, Relating to critical skills evaluations for students in grades three and eight.
Having been read a second time, amended and ordered to third reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2832) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2832) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2832--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2E-10, relating to critical skills instructional support programs for students in grades three and eight; setting forth legislative findings; providing for state board rules to effectuate section; establishing minimum provisions of rules; providing condition for promotion for certain students under certain circumstances; requiring suitable facilities by county boards; preserving teacher's judgment on student retention decisions; preserving individualized education plans from effect of section; providing for county board preparation; requiring an accurate determination of cost; requiring a determination of the amount of funds available from other sources; and encouraging establishment of the programs during summer of 2010.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2832) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Plymale, and by unanimous consent, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2961, Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
Having been read a second time, amended and ordered to third reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: Barnes and Sypolt--2.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2961) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2961) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2961--A Bill to repeal §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended; to repeal §18B-14-1, §18B- 14-2, §18B-14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code; to amend and reenact §5-6-4a of said code; to amend and reenact §18B-1B-4 of said code; to amend said code by adding thereto a new section, designated §18B-1D-9; to amend and reenact §18B-2A-1 and §18B-2A-4 of said code; to amend and reenact §18B-2B-6 of said code; to amend and reenact §18B-4-6 of said code; to amend and reenact §18B-5-4 of said code; to amend and reenact §18B-10-8 of said code; to amend said code by adding thereto a new article, designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B- 19-16, §18B-19-17 and §18B-19-18; and to amend and reenact §29-22- 18 of said code, all relating to the administration of institutions of higher education in West Virginia generally; requiring training and development opportunities for members of the Higher Education Policy Commission, the Council for Community and Technical College Education and the institutional governing boards; revising criteria for membership of certain institutional governing boards; requiring the governor to consider certain factors and seek a certain balance when appointing members; higher education capital facilities generally; higher education purchasing generally; capital project planning, financing, management and maintenance; acquisition, sale, transfer, exchange, lease, conveyance and condemnation of real property; construction and operation of capital facilities; collection and use of certain capital fees; establishing in the State Treasury a special revenue fund known as the Higher Education Policy Commission Capital Improvement Fund; directing the use of certain lottery proceeds; establishing in the State Treasury a capital maintenance fund for each state institution of higher education; legislative intent; defining terms; systemwide facilities planning; institution facilities planning; and making technical changes.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2961) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Kessler, unanimous consent being granted, the Senate returned to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2737, Authorizing the Administrative Director of the Supreme Court of Appeals to hire regional or specialized probation officers.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote as to the passage of the bill.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2737) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
On motion of Senator Chafin, the Senate recessed for five minutes.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order, which agenda includes the making of main motions.
On motion of Senator Bowman, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2767, Changing the membership of the PEIA Financial Board.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate.
On motion of Senator Bowman, the Senate reconsidered the vote as to the effective date and passage.
The vote thereon having being reconsidered,
On motion of Senator Bowman, the bill (Eng. Com. Sub. for H. B. No. 2767) was recommitted to the Committee on Government Organization.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 26, Requesting Joint Committee on Government and Finance study coal industry tax burden.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Walt Helmick,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 73 (originating in the Committee on Agriculture)--Requesting the Joint Committee on Government and Finance study the apiculture industry in West Virginia.
Whereas, Honeybees are essential to the survival of agriculture by providing for the pollenation of fruit trees, vegetables and flowers; and
Whereas, Apiarists and apiaries provide for the management and maintenance of honeybees; and
Whereas, West Virginia's bee-keeping industry has been affected by price competition from imports and complications from the spread of parasitic mites and colony collapse disorder; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the apiculture industry in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
C. Randy White,
Chair.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 74 (originating in the Committee on Agriculture)--Requesting the Joint Committee on Government and Finance study the farmers markets of West Virginia.
Whereas, The farmers markets of this state encourage microbusiness by marketing direct from farmer to consumer and increasing the local agricultural economy; and
Whereas, The structure of funding support through the West Virginia Department of Agriculture, the West Virginia University Extension Service and West Virginia's county commissions has established markets, roadside stands and agritourism market opportunities; and
Whereas, Future support and promotion of these markets should
be creative and enhance and increase the production of locally grown agriculture products; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the farmers markets of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
C. Randy White,
Chair.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Senate Concurrent Resolution No. 75 (originating in the Committee on Health and Human Resources)--Requesting the Joint Committee of Government and Finance study drug diversion and unintentional pharmaceutical drug overdoses.
Whereas, There has been a marked increase nationwide in the use and abuse of prescription narcotic drugs since 1990. The effect of this pharmacoepidemic is most prominent in rural areas; and
Whereas, West Virginia has, in fact, experienced the largest increase in drug overdose mortality rates in the nation between the years 1999 and 2004; and
Whereas, The majority of overdose deaths in West Virginia in 2006 were associated with nonmedical use and diversion of prescription drugs, primarily prescription narcotic pharmaceuticals; and
Whereas, Prescription drug diversion drains health insurers nationally of up to $72.5 billion a year. These costs include costs for insurance schemes and costs for treatment for abuse. There are also considerable costs to the state; and
Whereas, There is a need for a process to study the causes of the use of fraudulent prescriptions and unintentional pharmaceutical drug overdose fatalities that have occurred in West Virginia; and
Whereas, It is the intent of the Legislature to obtain input from government agencies, medical organizations and other entities that it is determined would be beneficial to the discussions to the study of fraudulent prescriptions and unintentional pharmaceutical drug overdoses; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study drug diversion and unintentional pharmaceutical drug overdoses; and, be it
Further Resolved, That in exploring solutions, the Joint Committee on Government and Finance should consider the feasibility of an official prescription program that could implement tamper prescription pads, which are already required for use by Medicaid, and the feasability of an Unintentional Pharmaceutical Drug Overdose Fatality Review Team to review deaths caused by prescription drugs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And,
Senate Concurrent Resolution No. 76 (originating in the Committee on Health and Human Resources)--Requesting the Joint Committee on Government and Finance study the effectiveness of the myriad of legislative initiatives available to the citizens of this state to assist them in obtaining health care services either through health insurance options or low-cost health care programs.
Whereas, The Governor and the Legislature have crafted a number of programs in recent years that are designed to improve access to health care to the citizens of West Virginia; and
Whereas, The initiatives have included prepaid preventive care programs, expanding eligibility criteria for the Children's Health Insurance Program, creating low-cost health insurance options and creating, expanding and funding health care programs for targeted segments of the population; and
Whereas, Access to health care in West Virginia, the quality of health care received and the costs of the care continue to be issues facing the citizens of the state, the Legislature and the Governor; and
Whereas, In addition to efforts recently made by the Legislature to reform the delivery of health care in the state, a study of current available options and how they interact with one another in terms of their keys to success has never been undertaken and may provide insight into potential expansion and greater funding to greater insure access to health care; and
Whereas, The lesson of these programs may hold clues to the success of future ventures and give the Legislature and the Governor purpose in developing strategies to addressing the health care delivery system in West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the effectiveness of the myriad of legislative initiatives available to the citizens of this state to assist them in obtaining health care services either through health insurance options or low-cost health care programs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that they each be adopted; but with the further recommendation that they first be referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
On motion of Senator Prezioso, the resolutions (S. C. R. Nos. 75 and 76) contained in the preceding report from the Committee on Health and Human Resources were referred to the Committee on Rules.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Concurrent Resolution No. 77 (originating in the Committee on Banking and Insurance)--Requesting the Joint Committee on Government and Finance study existing West Virginia law relating to the current mortgage crisis and its impact on the citizens of West Virginia and our financial institutions.
Whereas, The current mortgage crisis has caused a significant increase in mortgage delinquencies and a growth in the number of real estate foreclosures in the United States; and
Whereas, This crisis not only threatens major adverse consequences for homeowners as well as banks and other lending institutions, but further threatens damage to broader financial markets in this country and around the world; and
Whereas, This financial crisis became apparent in 2007 and has exposed a number of pervasive weaknesses in the control, governance and regulation of the banking and financial industry in this country and in the world financial system; and
Whereas, A significant percentage of mortgages issued in the United States in recent years to borrowers have been "subprime" or other types of adjustable-rate mortgages; and
Whereas, The values of housing in the United States have declined dramatically in some parts of the country since 2006-2007 and are continuing to fall, while a refinancing of debt by homeowners with adjustable-rate mortgages has become either difficult or impossible; and
Whereas, The interest rates applied to adjustable-rate mortgages have been reset and have climbed to increasingly higher levels, causing the number of mortgage delinquencies to rise; and
Whereas, Securities backed with subprime or other adjustable-rate mortgages, widely held by financial firms, have continued to lose value; and
Whereas, The end result of these conditions has been a decline in the value of real property, a devaluation of capital and a loss of access to available credit in this country and around the world therefore; be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study existing West Virginia law relating to the current mortgage crisis and its impact on the citizens of West Virginia and our financial institutions; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to study the impact and effects of the current mortgage crisis specific to West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the financial health of lending institutions in the state; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the availability of consumer credit in the state; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 78 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance study school personnel employment and retention, professional and skills development, pay for performance models and incentive programs generally, teacher evaluations and how each affects student performance.
Whereas, The quality of school personnel, especially professional educators, is more important than any other controllable factor in the academic performance of students; and
Whereas, The quality of school personnel also is an important factor in providing for the health and safety of students; and
Whereas, The state should continuously strive to enhance the quality of school personnel as a means to achieve the ultimate goals of improving the academic performance of students and providing for the health and safety of students; and
Whereas, School personnel employment and retention, professional and skills development, pay for performance models and incentive programs generally and teacher evaluations are important issues to consider when determining how to best enhance the quality of school personnel; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study school personnel employment and retention, professional and skills development, pay for performance models and incentive programs generally, teacher evaluations and how each affects student performance; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
On motion of Senator Plymale, the resolution (S. C. R. No. 78) contained in the preceding report from the Committee on Education was referred to the Committee on Rules.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 79 (originating in the Committee on Transportation and Infrastructure)--Requesting the Joint Committee on Government and Finance study the issues related to the timing of the cessation of the West Virginia turnpike tolls, the related prohibitions or restrictions on the issuance of additional revenue bonds for the West Virginia Turnpike and the payment provisions for the same.
Whereas, The continued collection of tolls for transit over the West Virginia Turnpike has for many years caused a significant adverse economic impact on many motorists, especially those who reside in the economically disadvantaged areas in the southern part of this state; and
Whereas, The need for the continued collection of these Turnpike tolls until the currently scheduled cessation date in the year 2019 is not definitely clear, especially considering that the various revenue bonds issued by the West Virginia Parkways, Economic Development and Tourism Authority and dedicated to the West Virginia Turnpike may be fully paid prior to that year; and
Whereas, The mountainous terrain that the West Virginia Turnpike traverses makes it quite expensive to conduct the vital improvement and repair and maintenance projects on that important highway serving both interstate and intrastate motorists; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study issues related to the timing of the cessation of the West Virginia turnpike tolls, the related prohibitions or restrictions on the issuance of additional revenue bonds for the West Virginia Turnpike and the payment provisions for the same; and, be it
Further Resolved, That the Joint Committee on Government and Finance may obtain relevant information from any experts or from other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
Senate Concurrent Resolution No. 80 (originating in the Committee on Transportation and Infrastructure)--Requesting the Joint Committee on Government and Finance study the issues related to greater access to wireless towers by competing wireless telephone carriers.
Whereas, Current state law promotes the construction of wireless towers in remote areas of this state to provide enhanced access to emergency services by the use of wireless telephones; and
Whereas, Each of the private wireless telephone carriers tends to be very reluctant to provide access to wireless towers, in remote areas of the state especially, to competing wireless telephone carriers even though public funds have subsidized the construction cost of those towers; and
Whereas, For wireless towers built and maintained with some public funds, the Legislature, the West Virginia Public Service Commission and other appropriate public bodies are entitled to have access to the fee arrangements and other relevant written agreements between the county commissions and the private wireless telephone carriers for the use by the carriers of those towers; and
Whereas, Even for wireless towers not subsidized by public funds, the public in certain circumstances has a reasonable interest in greater cooperation among private wireless telephone carriers with respect to providing access to wireless towers to competing carriers, for example if exclusive access results in very poor customer service or clearly exorbitant rates; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the issues related to greater access to wireless towers by competing wireless telephone carriers; and, be it
Further Resolved, That the Joint Committee on Government and Finance may obtain relevant information from any experts or from other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And,
Senate Concurrent Resolution No. 81 (originating in the Committee on Transportation and Infrastructure)--Requesting the Joint Committee on Government and Finance study the issues related to the quality and durability of materials or supplies furnished for state road or bridge purposes.
Whereas, Current state law, such as section twenty-three, article four, chapter seventeen of the Code of West Virginia, 1931, as amended, requires a person who sells paint, metal or metal culverts, fence or any other materials or supplies to the West Virginia Division of Highways for state road or bridge purposes to certify, if requested, the purity, chemical constituents and the percentage of impurities contained in the materials or supplies; and
Whereas, Current state law, such as section twenty-four, article four, chapter seventeen of the Code of West Virginia, 1931, as amended, requires the Commissioner of the West Virginia Division of Highways to test, standardize and approve in writing all materials or supplies that are used in the construction, reconstruction, improvement, repair or maintenance of state roads; and
Whereas, The overall quality or durability of paint or other materials or supplies used for state road or bridge purposes appears, from time to time, to have deteriorated; and
Whereas, The amount of moneys available for public highway and bridge materials and supplies clearly affects the quality and durability of those items; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the issues related to the quality and durability of materials or supplies furnished for state road or bridge purposes; and, be it
Further Resolved, That the Joint Committee on Government and Finance should also study the principal causes of and solutions for the problem, including any need for additional funds for these materials and supplies; and, be it
Further Resolved, That the Joint Committee on Government and Finance may obtain relevant information from any experts or from other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that they each be adopted; but with the further recommendation that they first be referred to the Committee on Rules.
Respectfully submitted,
John R. Unger II,
Chair.
On motion of Senator Unger, the resolutions (S. C. R. Nos. 79, 80 and 81) contained in the preceding report from the Committee on Transportation and Infrastructure were referred to the Committee on Rules.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit for certain solar energy systems.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2535) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2885, Establishing a uniform credentialing form and creating a single credentialing verification organization (CVO).
With amendments from the Committee on Banking and Insurance pending;
And reports the same back with the recommendation that it do pass as amended by the Committee on Banking and Insurance to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2885) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3195, Establishing a funding mechanism for state aid for local health departments.
Now on second reading, having been read a first time and referred to the Committee on Finance on April 8, 2009;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3197, Authorizing municipalities to permit nonpolice officers to issue citations for littering.
With amendments from the Committee on Government Organization pending;
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 8, 2009;
And reports the same back with the recommendation that it do pass as amended by the Committee on Government Organization to which the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 10, The "T-5 Leon Whitlock and PFC Forrest Wilson Memorial Bridge" and the "SFC Stanley Williams Memorial Bridge".
House Concurrent Resolution No. 12, The "Sebert S. Duty Memorial Bridge".
House Concurrent Resolution No. 14, The "Corporal William Dely Memorial Bridge".
House Concurrent Resolution No. 16, The "Willis W. Elkins Memorial Bridge".
House Concurrent Resolution No. 17, The "War Veterans of Mercer County Memorial Bridge".
House Concurrent Resolution No. 18, The "Chief Master Sergeant George Wallace Hedrick, Jr, Bridge".
House Concurrent Resolution No. 19, Requesting the Division of Highways to rename Guy Gillenwater Hollow to "Heritage Road".
House Concurrent Resolution No. 20, Requesting the Division of Highways add to the signage on bridge number O6-O2-0.10, in Cabell County, adding "Green Beret" above "Sgt. Jackie L. Waymire Memorial Bridge" and "Recipient of DSC KIA Vietnam 1967" below.
House Concurrent Resolution No. 21, The "Staff Sgt. Jeremy Alexander Brown Memorial Bridge".
House Concurrent Resolution No. 22, The "Buffalo Creek Memorial Highway".
House Concurrent Resolution No. 25, Requesting that the Division of Highways relocate the marker known as the Washington Lands Marker in Moundsville.
House Concurrent Resolution No. 28, The "Sgt. Daniel Pesimer Memorial Bridge Killed in Vietnam, 1968".
House Concurrent Resolution No. 29, The "Arden Cogar, Sr. Bridge".
House Concurrent Resolution No. 31, The "Airman First Class Christopher Burns Lester Memorial Bridge".
House Concurrent Resolution No. 39, The "Clair Bee: Basketball Coach and Author Memorial Bridge".
House Concurrent Resolution No. 44, The "SFC Jaime Scott Nicholas Memorial Highway".
House Concurrent Resolution No. 45, The "Bob Basil Memorial Bridge".
House Concurrent Resolution No. 47, The "PFC Ronald 'Ronnie' Dean, USMC, Memorial Bridge".
And,
House Concurrent Resolution No. 75, The "Pearl Harbor: PFC Carey K. Stockwell Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 575, Relating to gaming operations at historic resort hotel.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
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 §29-22-29; that §29-25- 1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29- 25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-18, §29- 25-19, §29-25-20, §29-25-21, §29-25-22, §29-25-23, §29-25-24, §29-25-25 and §29-25-26 of said code be amended and reenacted; and that said code be amended by adding thereto twelve new sections, designated §29-25-22a, §29-25-28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29-25-34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all to read as follows:
ARTICLE 22. STATE LOTTERY ACT.
§29-22-29. Moneys transferred or allocated to nongovernmental entities are state moneys and have been so in the past; right to audit state moneys transferred to nongovernmental entities.

(a) Moneys transferred by the commission under provisions of this article and articles twenty-two-a, twenty-two-b, twenty-two-c and twenty-five of this chapter to nongovernmental recipients, are state moneys and have been state moneys in prior fiscal periods.
(b) All nongovernmental entities that have received state moneys as described in subsection (a) of this section are subject to audit by the commission. An audit provided for by this section may be conducted by employees or agents of the commission. An audit provided for by this section may also be conducted by the Legislative Auditor.
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings; intent.

(a) Operation of authorized games of chance West Virginia Lottery table games. -- Notwithstanding any provision of law to the contrary, the operation of West Virginia lottery games permitted by this article and the related operation of a gaming facility and ancillary activities is not unlawful when conducted under the terms specified in this article and article twenty-two-c of this chapter.
(b) Legislative findings. -- The Legislature finds and declares that the tourism industry plays a critical role in the economy of this state and that a substantial state interest exists in protecting that industry. It further finds and declares that the authorization of the operation of a gaming facility at no more than one well-established historic resort hotel in this state as provided in this article will serve to protect and enhance the tourism industry, and indirectly other segments of the economy of this state, by providing a resort hotel amenity which is becoming increasingly important to many actual and potential resort hotel patrons.
The Legislature finds and declares that video lottery operations pursuant to subsection (c), section three twenty-eight of this article and the operation of the other authorized West Virginia Lottery table games permitted by this article constitute the operation of lotteries within the purview of section thirty- six, article VI of the Constitution of West Virginia.
(c) Legislative intent. -- It is the intent of the Legislature in the enactment of this article to promote tourism and year-round employment in this state. It is expressly not the intent of the Legislature to promote gaming. As a consequence, it is the intent of the Legislature to allow limited gaming as authorized by this article and article twenty-two-c of this chapter with all moneys gained from the operation of the gaming facility, other than those necessary to reimburse reasonable costs of operation, to inure to the benefit of the state. Further, it is the intent of the Legislature that amendments made to this article during the 2009 regular session will establish appropriate conformity between the operations of video lottery and West Virginia Lottery table games at the licensed gaming facility under this article and the operations of video lottery and table games at the pari-mutuel racetracks licensed under articles twenty-two-a and twenty-two-c of this chapter.
§29-25-2. Definitions.
As used in this article, unless the context otherwise requires, the following words and phrases have meanings indicated:
(a) "Applicant" means any person or entity applying for a license.
(b) "Adjusted gross receipts" means the gross receipts of a gaming facility from authorized games of chance West Virginia Lottery table games less winnings paid to wagerers in the such games.
(c) "Authorized game of chance" includes means baccarat, twenty-one or blackjack, poker, craps, roulette, wheel of fortune, video lottery games and any other Monte Carlo style table game expressly authorized by rule of the commission, but expressly excludes punchboard, faro, keno, numbers ticket, push card, jar ticket, pull tab or similar games.
(c) "Annual average gross receipts of the pari-mutuel racetracks with table games licenses" means the amount obtained by adding the adjusted gross receipts of all West Virginia pari-mutuel racetracks with table games licenses and then dividing that calculation by the number of West Virginia pari-mutuel racetracks with table games licenses.
(d) "Background investigation" means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal or a license pursuant to this article or a licensee who holds a current license.
(d) (e) "Controlling interest" means:
(1) For a partnership, an interest as a general or limited partner holding more than fifty five percent interest in the entity;
(2) For a corporation, an interest of more than fifty five percent of the stock in the corporation; and
(3) For any other entity, an ownership interest of more than fifty five percent in the entity.
(e) (f) "Controlling person" means, with respect to another person, any person directly or indirectly owning or holding a controlling interest in that other person.
(f) (g) "Commission" means the State Lottery Commission created in section four, article twenty-two of this chapter.
(h) "Designated gaming area" means one or more specific floor areas of a licensed gaming facility within which the commission has authorized operation of video lottery terminals or West Virginia Lottery table games, or the operation of both video lottery terminals and West Virginia Lottery table games.
(g) (i) "Director" means the Director of the State Lottery Commission.
(j) "Erasable programmable read-only memory chips" or "EPROM" means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and can also be in the form of CD ROM, flash ROM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be property of the State of West Virginia.
(k) "Fringe benefits" means sickness and accident benefits and benefits relating to medical and pension coverage.
(h) (l) "Gaming devices and supplies" mean gaming tables for all authorized games of chance West Virginia Lottery table games, roulette wheels, wheels of fortune, video lottery terminals, cards, dice, chips, tokens, markers or any other mechanical, electronic or other device, mechanism or equipment or related supplies utilized in the operation of an authorized game of chance a West Virginia Lottery table game.
(i) (m) "Gaming facility" means a designated area on the premises of an existing historic resort hotel in which authorized games of chance West Virginia Lottery table games are conducted by a gaming licensee.
(j) (n) "Gaming licensee" means the licensed operator of a gaming facility.
(k) (o) "Gross receipts" means the total amount of money exchanged for the purchase of chips, tokens or electronic cards by patrons of a gaming facility reduced by gross terminal income to the extend extent gross terminal income is included in the amount of money exchanged.
(l) (p) "Gross terminal income," has the same meaning ascribed to the term as set forth in article twenty-two-a of this chapter as used in this article and as used in article twenty-two-a of this chapter, means the total amount of cash, vouchers or tokens inserted into the video lottery terminals operated by a licensee, minus promotional credits played, and minus the total value of coins and tokens won by a player and game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets.
(m) (q) "Historic resort hotel" means a resort hotel registered with the United States Department of the Interior as a national historic landmark in its National Registry of Historic Places having not fewer than five hundred guest rooms under common ownership and having substantial recreational guest amenities in addition to the gaming facility.
(s) "State gaming (r) "Historic Resort Hotel Fund" means the special fund in the State Treasury created in section twenty-two of this article.
(s) "Human Resource Benefit Fund" means the special fund in the State Treasury created in section twenty-two-a of this article.
(t) "Human Resource Benefit Advisory Board" or "board" means the advisory board created in section twenty-two-a of this article.
(n) (u) "License" means a license issued by the commission, including:
(1) A license to operate a gaming facility;
(2) A license to supply gaming devices and supplies to a gaming facility; or
(3) A license to be employed in connection with the operation of a gaming facility; or
(4) A license to provide management services under a contract to a gaming facility under this article.
(o) (v) "Licensed gaming facility employee" means any individual licensed to be employed by a gaming licensee in connection with the operation of a gaming facility.
(p) (w) "Licensed gaming facility supplier" means a person who is licensed by the commission to engage in the business of supplying gaming devices and gaming supplies to a gaming facility.
(q) (x) "Licensee" means a gaming licensee, a licensed gaming facility supplier or a licensed gaming facility employee.
(y) "Manufacturer" means any person holding a license granted by the commission to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which it is housed, and whose product is intended for sale, lease or other assignment to a licensed gaming facility in West Virginia and who contracts directly with the licensee for the sale, lease or other assignment to a licensed gaming facility in West Virginia.
(z) "Net terminal income" means gross terminal income minus an amount deducted by the commission to reimburse the commission for its actual cost of administering video lottery at the licensed gaming facility. No deduction for any or all costs and expenses of a licensee related to the operation of video lottery games shall be deducted from gross terminal income.
(r) (aa) "Person" means any natural person, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.
(bb)"Premises of an existing historic resort hotel" means the historic resort hotel, attachments of the historic resort hotel and the traditional, immediate grounds of the historic resort hotel.
(cc) "Promotional credits" means credits given by the licensed gaming facility or licensed racetrack to players allowing limited free play of video lottery terminals in total amounts and under conditions approved in advance by the commission.
(t) (dd) "Video lottery games game," and video lottery terminals" shall have the same meaning ascribed the terms in article twenty-two-a of this chapter as used in this article and as used in article twenty-two-a of this chapter, means a commission- approved, -owned and -controlled electronically simulated game of chance which is displayed on a video lottery terminal and which:
(1) Is connected to the commission's central control computer by an online or dial-up communication system;
(2) Is initiated by a player's insertion of cash, vouchers or tokens into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credits entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;
(3) Allows the player to win additional game play credits, coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free play credits, coins or tokens to be awarded for each winning combination of symbols or numbers or both;
(4) Is based upon a computer-generated random selection of winning combinations based totally or predominantly on chance;
(5) In the case of a video lottery game which allows the player an option to select replacement symbols or numbers or additional symbols or numbers after the game is initiated and in the course of play, either:
(A) Signals the player, prior to any optional selection by the player of randomly generated replacement symbols or numbers, as to which symbols or numbers should be retained by the player to present the best chance, based upon probabilities, that the player may select a winning combination;
(B) Signals the player, prior to any optional selection by the player of randomly generated additional symbols or numbers, as to whether such additional selection presents the best chance, based upon probabilities, that the player may select a winning combination; or
(C) Randomly generates additional or replacement symbols and numbers for the player after automatically selecting the symbols and numbers which should be retained to present the best chance, based upon probabilities, for a winning combination, so that in any event, the player is not permitted to benefit from any personal skill, based upon a knowledge of probabilities, before deciding which optional numbers or symbols to choose in the course of video lottery game play;
(6) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and
(7) Does not use the following game themes commonly associated with casino gambling: Roulette, dice or baccarat card games:
Provided, That games having a display with symbols which appear to roll on drums to simulate a classic casino slot machine, game themes of other card games and keno may be used.
(ee) "Wager" means a sum of money or thing of value risked on an uncertain occurrence.
(ff) "West Virginia Lottery table game" means any game played with cards, dice or any mechanical, electromechanical or electronic device or machine for money, credit or any representative of value, including, but not limited to, baccarat, blackjack, poker, craps, roulette, wheel of fortune or any variation of these games similar in design or operation and expressly authorized by rule of the commission, including multiplayer electronic table games, machines and devices, but excluding video lottery, punchboards, faro, numbers tickets, push cards, jar tickets, pull tabs or similar games.
§29-25-3. Commission duties and powers.
(a) Duties. -- In addition to the duties set forth elsewhere in this article, the commission shall:
(1) Establish minimum standards for gaming devices and supplies, including electronic or mechanical gaming devices;
(2) Approve, modify or reject game rules of play for all authorized games of chance West Virginia Lottery table games proposed to be operated by a gaming licensee;
(3) Establish standards governing gaming facilities generally, Approve, modify or reject minimum internal control standards proposed by the licensee gaming facility for a West Virginia Lottery table game, including the maintenance of financial books and records;
(4) Provide staff to supervise, inspect and monitor the operation of any gaming facility, including inspection of gaming devices and supplies used in the operation to assure continuous compliance with all rules of the commission and provisions of this article;
(5) Establish minimum levels of insurance to be maintained with respect to a gaming facility;
(6) Investigate applicants to determine eligibility for any license and, where appropriate, select among competing applicants;
(7) Designate appropriate classifications of personnel to be employed in the operation of a gaming facility and establish appropriate licensing standards within the classifications;
(8) Issue all licenses;
(9) Charge and collect the taxes and fees authorized, required or specified in this article: and receive, accept and pay taxes and fees collected under this article into the state gaming fund
(i) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Historic Resort Hotel Fund; and
(ii) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Human Resource Benefit Fund;

(10) Maintain a record of all licenses issued;
(11) Keep a public record of all commission actions and proceedings; and
(12) File a written annual report to the Governor, the President of the Senate and the Speaker of the House of Delegates on or before January 30 of each year and any additional reports as the Governor or Legislature may request.
(b) Powers. -- In addition to the powers set forth elsewhere in this article, the commission has the following powers:
(1) To sue to enforce any provision of this article by injunction;
(2) To hold hearings, administer oaths and issue subpoenas for the attendance of a witness to testify and to produce evidence;
(3) To enter a gaming facility at any time and without notice to ensure strict compliance with the rules of the commission;
(4) To bar, for cause, any person from entering or participating in any capacity in the operation of a gaming facility; and
(5) To exercise such other powers as may be necessary to effectuate the provisions of this article.
(c) Video lottery games. -- The commission is authorized to implement and operate video lottery games at the gaming facility licensed pursuant to this article consistent with the gaming licensee's operation of the gaming facility. With respect to video lottery games the provisions of article twenty-two-a of this chapter apply to this article, except in the event of a conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two-a of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this chapter. In carrying out its authority hereunder, the commission may: (1) Specify by rule additional licensure and fee requirements consistent with the provisions of article twenty-two-a respecting video lottery manufacturers, service technicians and validation managers; and (2) adopt and specify any reasonable procedure, protocol or requirement to enable video lottery terminals to effectively and efficiently communicates with the commission's central computer system used in administering article twenty-two-a of this chapter.
§29-25-5. Rules.
The commission shall propose for promulgation legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of the provisions of this article. Any legislative rules proposed by the commission before September one thousand nine hundred ninety-nine 1, 2009, may be by emergency rule.
§29-25-6. Law enforcement.
(a) Generally. -- Notwithstanding any provision of this code to the contrary, the director may commission shall, by contract or cooperative agreements, with state, county or municipal law enforcement agencies operating in the county in which the gaming facility is located arrange for such law enforcement services as agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to gaming as such occurs at the gaming facility that are necessary to enforce the provisions of this article.
(b) Costs. -- The actual cost of services provided by the State Police or municipal law enforcement agencies in connection with enforcement of the provisions of this article West Virginia State Police pursuant to a contract or cooperative agreement entered into pursuant to the provisions of subsection (a) of this section, including, but not limited to, necessary training costs, shall be paid from the state gaming fund, which cost shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional required personnel by the commission as an administrative expense.
The costs of services related to a gaming facility provided by law-enforcement officers of the county in which such gaming facility is located shall be paid from that portion of the state gaming fund allocated to such county. The costs shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional personnel.
(c) Notwithstanding any provision of this code to the contrary, the West Virginia State Police shall have exclusive jurisdiction over felony offenses committed on the grounds of the gaming facility.
§29-25-8. Licenses required.
(a) No person may engage in any activity in connection with a gaming facility in this state for which a license is required by subsection (b) of this section unless that person has been licensed by the commission in accordance with this article.
(b) Licenses are required for the following purposes:
(1) For any person engaging in the business of operating a gaming facility in the state;
(2) For any person engaging in the business of supplying a gaming facility with gaming devices, gaming supplies or gaming services; if the gaming facility expends more than fifty thousand dollars annually with such person; and
(3) For any individual employed by a gaming licensee in connection with the operation of a gaming facility in the state; and
(4) For any person providing management services under a contract to a gaming facility.
(c) Any license required under this article is in addition to all other licenses or permits otherwise required by law.
§29-25-9. License to operate a gaming facility.
(a) Single license. -- The commission may issue only one license to operate a gaming facility. If the one license limitation in the preceding sentence is found to be unconstitutional in a final, nonappealable order by a court of competent jurisdiction, the commission shall have no authority to issue any license under this article and, in such event, the provisions of this article shall not be severable and any license issued under the provisions of this article prior thereto shall be void. The Legislature intends that no more than one license to operate one gaming facility in this state shall be authorized in any event.
(b) Applicant qualifications. -- An The applicant for a license to operate a gaming facility shall be the owner or be wholly owned by the owner of an existing actual operator of the gaming facility to be located on the premises of an existing historic resort hotel in which the gaming facility is to be located, and the The applicant may be the owner of the existing historic resort hotel or a person that leases well-defined spaces on the premises of the historic resort hotel in order to operate a gaming facility as defined by this article. The resort hotel shall be located within the jurisdiction of a county approving the operation of a gaming facility in accordance with section seven of this article. An The applicant shall meet the qualifications and requirements set forth in this article and rules adopted by the commission. In determining whether to grant a license to operate a gaming facility to an applicant, the commission shall consider:
(1) The character, reputation, experience and financial integrity of the applicant and any controlling person of the applicant;
(2) Whether the applicant has adequate capital to construct and maintain the proposed gaming facility for the duration of a license;
(3) The extent to which the applicant meets standards contained in rules adopted by the commission relating to public safety or other standards; and
(4) The plan submitted by the applicant regarding employment levels and the extent to which the submitted plan demonstrates an ability on the part of the applicant to create at least one hundred full-time equivalent jobs with a salary and benefit package commensurate with existing employees at the historic resort hotel.
(c) Conditions attached to license. -- A license to operate a gaming facility may only be granted to an applicant upon the express condition that: Floor plan submission requirement. -- Prior to commencing the operation of any West Virginia Lottery table game in a designated gaming area, the gaming facility licensee shall submit to the commission for its approval a detailed floor plan depicting the location of the designated gaming area in which West Virginia Lottery table game gaming equipment will be located and its proposed arrangement of the West Virginia Lottery table game gaming equipment. If the floor plans for the designated gaming area preserve the historic integrity of the historic resort hotel where the licensed gaming facility is located, then any floor plan submission that satisfies the requirements of the rules promulgated by the commission shall be considered approved by the commission unless a gaming facility is notified in writing to the contrary within one month of filing a detailed floor plan.
(1) The licensee may not enter into any management service contract, understanding or arrangement of any kind which would act to permit any person other than the licensee to operate a licensed gaming facility unless the management service contract, understanding or arrangement is in writing and has been approved by the commission, which approval shall be conditioned upon successful completion of a thorough background investigation at the expense of the licensee;
(2) The licensee may not in any manner permit a person other than the licensee to have a share, percentage or proportion of any profits generated from the operation of a gaming facility;
(3) The licensee may not in any manner permit a person other than the licensee to have a share, percentage or proportion of any profits generated from the operation of the gaming facility without the prior written approval of the director of the Lottery Commission; and,
(4) The licensee shall permit authorized games of chance to be played only during those hours established and approved by the commission.
(d) Management service contracts. --
(1)
Approval. -- A gaming facility may not enter into any management service contract that would permit any person other than the licensee to act as the commission's agent in operating West Virginia Lottery table game unless the management service contract: (A) Is with a person licensed under this article to provide management services; (B) is in writing; and (C) the contract has been approved by the commission.
(2)
Material change. -- A licensed gaming facility shall submit any material change in a management service contract previously approved by the commission to the commission for its approval or rejection before the material change may take effect.
(3)
Prohibition on assignment or transfer. -- A management services contract may not be assigned or transferred to a third party.
(4)
Other commission approvals and licenses. -- The duties and responsibility of a management services provider under a management services contract may not be assigned, delegated, subcontracted or transferred to a third party to perform without the prior approval of the commission. Third parties shall be licensed under this article before providing service. The commission shall license and require the display of West Virginia Lottery game logos on appropriate game surfaces and other gaming items and locations as the commission considers appropriate.
(d) (e) License application requirements. -- An applicant for a license to operate a gaming facility shall:
(1) Submit an application to the commission on a form prescribed by the commission, which form shall include:
(A) Information concerning the applicant and of any controlling person of the applicant sufficient to serve as a basis for a thorough background check;
(B) Subject to the provisions of subsection (e) (g) of this section with respect to publicly-traded corporations, the identity of all stockholders or other persons having a financial interest in either the applicant or any controlling person of the applicant and the identity of each director or executive officer of the applicant and of any controlling person of the applicant;
(C) The identity of the historic resort hotel at which the gaming facility is to be located, including identification of the county in which the historic resort hotel is located; and
(D) Any other information designated by the commission as appropriate to assist it in determining whether a license should be issued;
(2) Pay to the commission a nonrefundable application fee for deposit into the state gaming Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter in the amount of $25,000 $65,000.
(3) Pay to the commission an investigative fee for deposit in the state gaming fund in the amount of twenty thousand dollars.
(f) Privately held corporations. -- In the event that an applicant or any controlling person of an applicant is a privately held corporation, then the commission may not grant a license until the commission determines that each person who has control of the applicant also meets all of the qualifications the applicant must meet to hold the license for which application is made. The following persons are considered to have control of an applicant:
(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation;
(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant; and
(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.
(e) (g) Publicly traded corporations. -- In the event that an applicant or any controlling person of an applicant is a publicly- traded corporation, then information otherwise required to be furnished by an applicant with respect to stockholders, directors and executive officers of the publicly traded corporation shall be limited to information concerning only those executive officers of the publicly-traced publicly traded corporation whose ongoing and regular responsibilities relate or are expected to relate directly to the operation or oversight of the gaming facility. "Publicly traded corporation" as used herein means any corporation or other legal entity, except a natural person, which has one or more classes of securities registered pursuant to section twelve of the Securities Exchange Act of 1934, as amended (15 U. S. C. §78), or is an issuer subject to section fifteen-d of that said act.
(f) (h) Gaming facility qualifications. -- An applicant for a license to operate a gaming facility shall demonstrate that the gaming facility will: (1) Be accessible to disabled individuals; (2) not be located at the main entrance to the historic resort hotel; (3) be licensed in accordance with all other applicable federal, state and local laws; and (4) meet any other qualifications specified by rules adopted by the commission.
(g) Investigative fee. -- The investigative fee paid by an applicant at the time of submitting an application shall be applied to the cost of any investigation relating to the applicant required under this article.
(1) If the cost of the investigation is greater than twenty thousand dollars, the investigative agency shall show cause for the additional cost. The applicant shall pay the additional costs to the extent approved by the commission, but not to exceed a total investigative fee of forty thousand dollars;
(2) If the cost of the investigation is less than the aggregate investigative fee paid by an applicant, the commission shall refund the difference.
(h) (i) Surety bond requirement. -- The licensed operator of a gaming facility shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes the all payments keeps books and records, makes reports and conducts gaming in the licensee's gaming facility in accordance with the provisions of this article and rules promulgated by the commission. The surety bond shall be:
(1) In the an amount of five million dollars determined by the commission to be adequate to protect the state against nonpayment by the licensee of amounts due the state under this article;
(2) In a form approved by the commission; and
(3) With a surety approved by the commission The bond shall remain in effect during the term of the license, and may not be canceled by a surety on less than thirty days notice in writing to the commission. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond. who is licensed to write surety insurance in this state. The bond shall remain in effect during the term of the license and may not be canceled by a surety on less than thirty days' notice in writing to the commission. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond.
(i) (j) Authorization of license. -- A license to operate a gaming facility authorizes the licensee to engage in the business of operating a gaming facility while the license is effective. A license to operate a gaming facility is not transferable or assignable and cannot be sold or pledged as collateral.
(j) (k) Audits. -- A licensed gaming facility operator shall submit to the commission an annual audit, by a certified public accountant who is, or whose firm is, licensed in the State of West Virginia, or by a nationally recognized accounting firm, of the financial transactions and condition of the licensee's total operations. The audit shall be in accordance with generally accepted auditing principles.
(k) (l) Annual license maintenance renewal fee. -- For the second year that it is licensed, the licensed gaming facility operator shall pay to the commission an annual a license maintenance renewal fee of five thousand dollars $250,000. For the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee of $500,000. For every year after the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee that is calculated by determining the annual average gross receipts of the West Virginia pari-mutuel racetracks with table games licenses for the last full fiscal year of adjusted gross receipts available, and dividing that number into the licensed gaming facility operator's adjusted gross receipts for the same full fiscal year of adjusted gross receipts to obtain a percentage, and by multiplying the resulting percentage by $2,500,000: Provided, That the amount required to be paid by the licensed gaming facility shall be not less than $500,000, nor more than $2,500,000.
(l) (m) The licensed gaming facility operator shall provide to the commission, at no cost to the commission, suitable office space at the gaming facility to perform the duties required of it by the provisions of this article.
§29-25-11. License to supply gaming facility.
(a) Licenses. -- The commission may issue a license to each applicant for a license to supply a gaming facility with gaming devices, gaming supplies or services who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license, an applicant shall meet the requirements of this section. Each applicant who is an individual who is a controlling person of an applicant that is not an individual shall be of good moral character and reputation and shall have the necessary experience and financial ability to successfully carry out the functions of a gaming facility supplier. The commission may adopt rules establishing additional requirements for a gaming facility supplier.
(c) Supplier specification. -- An applicant for a license to supply gaming devices, equipment and supplies to a gaming facility shall demonstrate that the gaming devices, equipment and supplies that the applicant plans to sell or lease to the licensed operator of the gaming facility, conform or will conform to standards established by rules of the commission and applicable state law.
(d) License application requirements. -- An applicant for a license shall:
(1) Submit an application to the commission on the form that the commission requires including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable application fee for deposit into the state gaming fund in the amount of $5,000 $100 to be retained by the commission as reimbursement for the licensing process.
(3) Pay to the commission an investigative fee for deposit into the state gaming fund in the amount of ten thousand dollars, or a lesser amount as the commission upon application may conditionally approve in a particular case.
(e) Investigative fee. -- the investigative fee paid by an applicant for a license to supply a gaming facility shall be applied to the cost of any investigation of the applicant required under this article.
(1) If the costs of the investigation of an applicant are greater than ten thousand dollars, or the lesser investigative fee as may have been conditionally approved by the commission, the investigative agency must show cause for the additional cost. If the commission approves, the applicant shall pay the additional costs as required by the commission, but not to exceed a total investigative fee of fifty thousand dollars.
(2) If the costs of the investigation of an application are less than the aggregate investigative fee paid to the commission, the commission shall refund the difference.
(f) (e) Authorization of licensee. -- A license to supply a gaming facility authorizes the licensee to engage in the business of selling gaming devices and supplies to a gaming facility while the license is effective.
(g) (f) Inventory. -- A licensed gaming facility supplier shall submit to the commission a list of all equipment, gaming devices and supplies sold or delivered to a gaming facility in this state when required by the commission.
(h) (g) Annual license maintenance renewal fee.-- A licensed gaming facility supplier shall pay to the commission an annual license maintenance renewal fee of $5,000 $100.
§29-25-12. License to be employed by operator of gaming facility.
(a) Licenses. -- The commission shall issue a license to each applicant for a license to be employed in the operation of a gaming facility who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license to be employed in a gaming facility, the applicant shall be an individual of good moral character and reputation and have been offered employment by the gaming facility contingent upon licensure pursuant to the provisions of this section. The commission, by rule, may specify additional requirements to be met by applicants based on the specific job classification in which the applicant is to be employed.
(c) License application requirements. -- An applicant for a license to be employed in the operation of a gaming facility shall:
(1) Submit an application to the commission on the form that the commission requires, including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable investigative application fee for deposit into the state gaming fund in the amount of three hundred dollars $100 to be retained by the commission as reimbursement for the licensing process. This which fee may be paid on behalf of the applicant by the employer.
(3) Pay to the commission a nonrefundable investigative fee for deposit into the state gaming fund in an amount to be fixed by the commission by rule, which fee may be paid on behalf of the applicant by the employer.
(d) Authorization of licensee. -- A license to be employed by a gaming facility authorizes the licensee to be so employed in the capacity designated by the commission with respect to the license while the license is effective.
(e) Annual license maintenance renewal fee. -- Each licensed employee shall pay to the commission an annual license maintenance renewal fee set by the commission, the maintenance which renewal fee may vary based on the capacity designated with respect to the licensee but in no event to exceed three hundred dollars $100. The fee may be paid on behalf of the licensed employee by the employer.
§29-25-13. False statements on applications; other license requirements and prohibitions.

(a) Any person who knowingly makes a false statement on an application is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than $500 or $1,000 and confined in the county or regional jail for not less more than six months, or both fined and confined except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.
(b) The commission may not grant a license pursuant to the provisions of this article if there is substantial evidence that the applicant:
(1) Has knowingly made a false statement of a material fact to the commission;
(2) Has been suspended from operating a gambling game, gaming device or gambling operation in another jurisdiction by a board or other governmental authority of that jurisdiction having responsibility for the regulation of gambling or gaming activities;
(3) Has been convicted of a felony, an offense of moral turpitude, a gambling offense, a theft or fraud offense or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order;
(4) Has failed to meet any monetary obligation in connection with a gaming facility or any other form of gaming; or
(5) In the case of an applicant for a license to operate a gaming facility or to supply a gaming facility:
(A) Has not demonstrated financial responsibility sufficient to meet adequately the requirements of the enterprise proposed;
(B) Is not the true owner of the enterprise or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in such enterprise; or
(C) Is a corporation and five percent or more of the stock of the corporation is subject to a contract or option to purchase at any time during the period for which the license is issued unless the contract or option was disclosed to and approved by the commission.
(c) In addition to any other grounds specified in this article, and subject to the hearing provisions of section seventeen of this article, in the case of a license to operate a gaming facility the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee or any controlling person of the applicant or licensee knowingly employs an individual in a senior management position who has been convicted of a felony under the laws of this state, another state, a territory of the United States or the United States or employs any individual in a senior management position who has had a license relating to the operation of a gaming facility revoked by this state or any other state.
(d) Character references may be required of persons licensed, but the character reference may not be obtained from persons in the same or similar occupations or professions in other states.
§29-25-16. License denial, revocation and reprimand.
(a) The commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee, or any controlling person of the applicant or license:
(1) Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;
(2) Fraudulently or deceptively uses a license; or
(3) Is convicted of a felony under the laws of this state, another state, a territory of the United States or the United States;
(4) Is convicted of a misdemeanor under the laws of this state, another state, the United States or a territory of the United States for gambling or a gambling related activity; or
(5) Is not complying with this act, the rules or the minimum internal control standards promulgated by the commission or the gaming facility.
(b) Instead of or in addition to reprimanding a licensee or suspending or revoking a license, the commission may impose a civil penalty under section twenty-seven of this article.
§29-25-17. Hearing procedures.
(a) Right to a hearing. -- Except as otherwise provided by law, before the commission takes any action involving a licensee under the provisions of this article, it shall give the persons against whom the action is contemplated an opportunity for a hearing before the commission.
(b) Notice of hearing and right to counsel. -- The commission shall give notice and hold the hearing in accordance with state law, article five, chapter twenty-nine-a of this code. The notice shall be given to the person by certified mail to the last known address of the person at least thirty days before the hearing. The person may be represented at the hearing by counsel.
(c) Failure to comply with subpoena. -- If a person fails to comply with a subpoena issued under this section, on petition of the commission, the circuit court may compel obedience to the subpoena. If after due notice the person against whom the action is contemplated fails or refuses to appear, the commission may hear and determine the matter.
(d) Appeal. -- Any person aggrieved by a final decision of the commission in a contested case may file a as defined in petition for appeal in the circuit court of Kanawha County within thirty days after the person received notice of the final order or decision, as provided in section four, article five, chapter twenty-nine-a of this code. may appeal as provided for in that chapter
§29-25-18. Inspection and seizure.
As a condition of licensure and notwithstanding the separate licensure of the facility as a private club pursuant to , to inspect or investigate for criminal violations of this article seven, chapter sixty of this code, any licensee shall consent to any search without a warrant by agents of the commission or of the State Police designated by the commission of the licensee's person, personal property and effects, and premises which are located in the gaming facility or adjacent facilities under the control of the licensee, to inspect or investigate for criminal violations of this article or violations of rules adopted by the commission. or violations of the rule promulgated by the commission, the commission and the West Virginia State Police may each, without notice and without warrant:
(1) Inspect and examine all premises of the gaming facility with West Virginia Lottery table games, gaming devices, the premises where gaming equipment is manufactured, sold, distributed or serviced or any premises in which any records of the activities are prepared or maintained;
(2) Inspect any gaming equipment in, about, upon or around the premises of a gaming facility with West Virginia Lottery table games;
(3) Seize summarily and remove from the premises and impound any gaming equipment for the purposes of examination, inspection or testing;
(4) Inspect, examine and audit all books, records and documents pertaining to a gaming facility licensee's operation;
(5) Summarily seize, impound or assume physical control of any book, record, ledger, West Virginia Lottery table game, gaming equipment or device, cash box and its contents, counting room or its equipment or West Virginia Lottery table game operations; and
(6) Inspect the person, and the person's personal effects present on the grounds of a licensed gaming facility with West Virginia Lottery table games, of any holder of a license issued pursuant to this article while that person is present on the grounds of a licensed gaming facility having West Virginia Lottery table games.
§29-25-19. Consent to presence of law-enforcement officers; wagering limits; operations and services; posting of betting limits.

(a) Consent to presence of law-enforcement officers. -- Any individual entering a the gaming facility shall be advised by the posting of a notice or other suitable means of the possible presence of state, county or municipal law-enforcement officers and by entering the gaming facility impliedly consents to the presence of the law-enforcement officers.
(b) Setting of wagering limits Commission discretion in gaming operations. -- The operator of a gaming facility may set minimum wagers for any authorized game of chance, except for video lottery. Video lottery terminals operated at the gaming facility may not allow more than two $5 to be wagered on a single game.
(1) Subject to the approval of the commission, the gaming facility licensee shall, with respect West Virginia Lottery table games, establish the following:
(A) Maximum and minimum wagers;
(B) Advertising and promotional activities;
(C) Hours of operation; and
(D) The days during which games may be played; and
(2) The commission may consider multiple factors, including, but not limited to, industry standards, outside competition and any other factors as determined by the commission to be relevant in its decision to approve the gaming facility's determination of those items listed in subdivision (1) of this subsection.
(c)
Setting of operations. -- Notwithstanding anything to the contrary contained elsewhere in this chapter, the commission may establish the following parameters for commission regulated lottery games of any kind which is played at a licensed gaming facility:
(1) Minimum and maximum payout percentages;
(2) Any probability limits of obtaining the maximum payout for a particular play; and
(3) Limitations on the types and amounts of financial transactions, including extension of credit to a patron, which a gaming facility can enter into with its patrons.
(d)
Posting of betting limits. -- A gaming facility shall conspicuously post a sign at each West Virginia Lottery table game indicating the permissible minimum and maximum wagers pertaining at that table. A gaming facility licensee may not require any wager to be greater than the stated minimum or less than the stated maximum. However, any wager actually made by a patron and not rejected by a gaming facility licensee prior to the commencement of play shall be treated as a valid wager.
§29-25-20. Accounting and reporting of gross terminal income; distribution.

The licensed gaming facility shall submit fifty-three thirty-six percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Historic Resort Hotel Fund created in section twenty-two of this article. The licensed gaming facility shall also submit seventeen percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Human Resource Benefit Fund created in section twenty-two-a of this article. Each of these submissions shall be made to the commission weekly. The gaming licensee shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. The gaming licensee shall provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds.
§29-25-21. Taxes on games other than video lottery games.
(a) Imposition and rate of limited gaming profits tax. -- There is hereby levied and shall be collected a privilege tax against a gaming licensee license in an amount to be determined by the application of the rate against adjusted gross receipts of the licensed gaming facility. The rate of tax is thirty-seven thirty- five percent. Of that thirty-five percent, thirty percent shall be directly deposited by the commission into the Historic Resort Hotel Fund created in section twenty-two of this article and the remaining five percent shall be directly deposited by the commission into the Human Resource Benefit Fund created in section twenty-two-a of this article. For purposes of calculating the amount of tax due under this section, the licensee shall use the accrual method of accounting. This tax is in addition to all other taxes and fees imposed: Provided, That the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code may not apply to the proceeds from any wagering with respect to an authorized game of chance a West Virginia Lottery table game pursuant to this article.
(b) Computation and payment of tax. --The taxes levied under the provisions of this section are due and payable to the commission in monthly weekly installments on or before the twenty- first day Wednesday of the month following the month in which the tax is accrued each week. The taxpayer shall, on or before the twenty-first day Wednesday of each month week, make out and mail submit by electronic communication to the commission a return for the preceding month week, in the form prescribed by the commission, showing: (1) The total gross receipts from the gaming facility for that month and the adjusted gross receipts; (2) the amount of tax for which the taxpayer is liable; and (3) any further information necessary in the computation and collection of the tax which the Tax Commissioner or the commission may require. Payment of the amount of tax due shall accompany the return. All payments made pursuant to this section shall be deposited in the state gaming fund accordance with sections twenty-two and twenty-two-a of this article. Payments due to the commission under this section and payments due to the commission under section twenty of this article shall be sent simultaneously.
(c) Negative adjusted gross receipts. -- When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the gaming facility's West Virginia Lottery table games exceeds the gaming facility's gross receipts from the purchase of table game tokens, chips or electronic media by patrons, the commission shall allow the licensee to, pursuant to rules of the commission, carry over the negative amount of adjusted gross receipts to returns filed for subsequent weeks. The negative amount of adjusted gross receipts may not be carried back to an earlier week and the commission is not required to refund any tax received by the commission, except when the licensee surrenders its license to act as agent of the commission in operating West Virginia Lottery table game under this article and the licensee's last return filed under this section shows negative adjusted gross receipts. In that case, the commission shall multiply the amount of negative adjusted gross receipts by the applicable rate of tax and pay the amount to the licensee, in accordance with rules of the commission.
(c) (d) Prohibition on credits. -- Notwithstanding any other provision of this code to the contrary, no credits may be allowed against any tax imposed on any taxpayer by this code for an investment in gaming devices and supplies, for an investment in real property which would be directly utilized for the operation of a gaming facility or for any jobs created at a gaming facility. Notwithstanding any other provision of this code to the contrary, the tax imposed by this section may not be added to federal taxable income in determining West Virginia taxable income of a taxpayer for purposes of article twenty-four, chapter eleven of this code.
(e) Tax imposed by this section is in lieu of other taxes. --
(1) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all other state taxes and fees imposed on the operation of, or the proceeds from operation of West Virginia Lottery table games, except as otherwise provided in this section. The consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code shall not apply to the licensee's gross receipts from any wagering on a West Virginia Lottery table game pursuant to this article or to the licensee's purchasing of gaming equipment, supplies or services directly used in operation of a West Virginia Lottery table games authorized by this article. These purchases are also exempt from the use tax imposed by article fifteen-a, chapter eleven of this code.
(2) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all local taxes and fees levied on or imposed with respect to the privilege of offering a West Virginia Lottery table game to the public, including, but not limited to, the municipal business and occupation taxes and amusement taxes authorized by article thirteen, chapter eight of this code and the municipal sales and service tax and use tax authorized by article thirteen-c of said chapter.
§29-25-22. Historic Resort Hotel Fund; allocation of adjusted gross receipts; disposition of license fees.

(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the state gaming Historic Resort Hotel Fund. All revenues received from licenses and applicants under this article, all Thirty-six percent of the gross terminal income received by the commission under section twenty of this article and all tax revenues from the tax imposed thirty percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the state gaming Historic Resort Hotel Fund. The fund shall be an interest bearing account with interest to be credited to and deposited in the state gaming Historic Resort Hotel Fund.
(b) All expenses of the commission shall be paid from the state gaming Historic Resort Hotel Fund, including reimbursement of the State Police for activities performed at the request of the commission in connection with background investigations or enforcement activities pursuant to this article. At no time may the commission's expenses under this article exceed fifteen percent of the total of the annual revenue received from the licensee under this article, including all license fees, taxes or other amounts required to be deposited in the state gaming Historic Resort Hotel Fund.
(c) The balance of the state gaming Historic Resort Hotel Fund shall become net income and shall be divided as follows:
(1) Eighty-nine Sixty-four percent of the state gaming Historic Resort Hotel Fund net income shall be paid into the General Revenue Fund to be appropriated by the Legislature;
(2) Nineteen percent of the Historic Resort Hotel Fund net income shall be paid into the State Debt Reduction Fund established in section twenty-seven, article twenty-two-c of this chapter to be appropriated by the Legislature;
(2) (3) The Tourism Promotion Fund established in section nine twelve, article one two, chapter five-b of this code shall receive three percent of the state gaming Historic Resort Hotel Fund net income;
(3) (4) The county where the gaming facility is located shall receive four percent of the state gaming Historic Resort Hotel Fund net income;
(4) (5) The municipality where the gaming facility is located or the municipality closest to the gaming facility by paved road access as of the effective date of the reenactment of this section by the 2009 regular session of the Legislature shall receive two and one-half percent of the state gaming Historic Resort Hotel Fund net income; and
(5) (6) The municipalities within the county where the gaming facility is located, except for the municipality receiving funds under subdivision (4) (5) of this subsection, shall receive equal shares of two and one-half percent of the state gaming Historic Resort Hotel Fund net income;
(7) Each county commission in the state that is not eligible to receive a distribution under subdivision (4) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income: Provided, That funds transferred to the county commission under this subdivision shall be used only to pay regional jail expenses and the costs of infrastructure improvements and other capital improvements; and
(8) The governing body of each municipality in the state that is not eligible to receive a distribution under subdivisions (5) and (6) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income:
Provided, That funds transferred to municipalities under this subdivision shall be used only to pay for debt reduction in municipal police and fire pension funds and the costs of infrastructure improvements and other capital improvements.
(d) Notwithstanding any provision of this article to the contrary, all limited gaming facility license fees and license renewal fees received by the commission pursuant to section nine of this article shall be deposited into the Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter.
(e) With the exception of the license fees and license renewal fees received by the commission pursuant to section nine of this article, all revenues received from licensees and license applicants under this article shall be retained by the commission as reimbursement for the licensing process.
§29-25-22a. Human Resource Benefit Fund.
(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the Human Resource Benefit Fund. Seventeen percent of the gross terminal income received by the commission under section twenty of this article and five percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the Human Resource Benefit Fund. The fund shall be an interest-bearing account with interest to be credited to and deposited in the Human Resource Benefit Fund.
(b) For each dollar expended by the historic resort hotel for fringe benefits for the employees of the historic resort hotel, the commission shall transfer to the historic resort hotel one dollar of recoupment from the Human Resource Benefit Fund: Provided, That the historic resort hotel is not entitled to recoupment for money spent on fringe benefits beyond the amount of money available to be expended from the Human Resource Benefit Fund at the time the request for recoupment is made by the historic resort hotel.
(c) The commission shall have full rights and powers to audit the spending of money from the Human Resource Benefit Fund to ensure that the money is being used in the manner prescribed under this section. The commission shall have the power and authority to audit as frequently as it sees fit, so long as it conducts at least two audits each fiscal year.
(d) There is hereby created the Human Resource Benefit Advisory Board, which shall meet every six months to verify the commission's audit.
(1) The board shall consist of five members, all residents and citizens of the State of West Virginia:
(A) One member shall be a representative of the collective bargaining unit that represents a majority of the employees of the historic resort hotel;
(B) One member shall be a representative of the historic resort hotel; and
(C) Three members shall be employees of the commission.
(2) The members shall be appointed or elected by the entity or persons that they represent. Establishment of terms for members shall be determined by the entity or persons that they represent, if the entity or persons choose to set terms.
(3) A majority of members constitutes a quorum for the transaction of business.
(4) The board shall meet every six months at the headquarters of the commission. Upon its own motion or upon the request of the commission, it may hold meetings in addition to the required meetings. The commission shall pay the travel expenses of members of the board who are not employed by the commission.
(5) All meetings of the board shall be open to the public.
(6) The board shall operate in an advisory capacity. Its functions shall include, but are not limited to, reviewing and verifying financial audits of the Human Resource Benefit Fund conducted by the commission and its employees and reviewing source documents associated with disbursements from the Human Resource Benefit Fund.
(7) Within thirty days of any board meeting, the board shall report to the commission its findings and any recommendations it may have. The report to the commission shall be made at a commission meeting that is open to the public.
(e) In the event that an audit conducted by the commission, or suggested changes to the audit submitted by the board and adopted by the commission, reveals that the historic resort hotel has acted improperly or negligently in its claim for money from the Human Resource Benefit Fund, the commission may impose a civil penalty against the historic resort hotel of up to one hundred percent of the improperly claimed amount. Any civil penalty imposed on the historic resort hotel by the commission under this subsection shall be deposited by the commission into the Historic Resort Hotel Fund.
§29-25-23. Prohibition on unauthorized wagering; complimentary service, gift, cash or other item.

(a) A gaming licensee may not permit any form of wagering except as authorized under this article or article twenty-two, twenty-two-a or twenty-two-c of this chapter.
(b) A gaming licensee may receive wagers only from an individual present in a licensed gaming facility.
(c) All gaming facility operations shall utilize a cashless wagering system whereby all players' money is converted to tokens, paper vouchers, electronic cards or chips at the request of the wagerer which can only be used for wagering in a licensed gaming facility and wagering may not be conducted with money or other negotiable currency:
(1) Wagering on West Virginia Lottery table games may not be conducted with money or other negotiable currency or with tokens, electronic cards or other electronic media or chips not issued by the gaming facility where the West Virginia Lottery table game will be played.
(2) At the request of the player, the licensee shall convert a player's tokens, electronic cards or other electronic media or chips back to money.
(3) The licensee may not charge a fee for converting a player's money to an acceptable media for playing a West Virginia Lottery table game or charge a fee for converting the acceptable media for wagering a West Virginia Lottery table game back to money.

(d) The gaming licensee is prohibited from offering any property or service, other than incidental food and beverages, to any person as an inducement to participate in a game of chance. This prohibition includes the offering of complimentary or discounted rooms in exchange for a guest participating in any game of chance at the gaming facility. complimentary service, gift, cash or other item of value to any person unless:
(1) The complimentary consists of room, food, beverage or entertainment expenses provided directly to the patron and his or her guests by the gaming facility licensee or indirectly to the patron and his or her guests on behalf of the licensee by a third party;
(2) The complimentary consists of documented transportation expenses provided directly to the patron and his or her guests on behalf of a gaming facility licensee by a third party:
Provided, That the licensee complies with the rules promulgated by the commission to ensure that a patron's and his or her guests' documented transportation expenses are paid for or reimbursed only once; or
(3) The complimentary consists of coins, tokens, cash or other complimentary items or services provided through any complimentary distribution program, the terms of which shall be filed with the commission upon implementation of the program or maintained pursuant to commission rule. Any change in the terms of a complimentary program shall be filed with the commission upon implementation of the change.
(e) Notwithstanding any provision of subsection (d) of this section to the contrary, a gaming facility licensee may offer and provide complimentary cash or noncash gifts that are not otherwise included in that subsection to any person:
Provided, That any complimentary cash or noncash gifts in excess of an amount per trip to be set by interpretive rule of the commission are supported by documentation regarding the reason the gift was provided to the patron and his or her guests, including, where applicable, a patron's player rating. The documentation shall be maintained by a gaming facility licensee in accordance with commission rules. For purposes of this subsection, all gifts presented to a patron and a patron's guests directly by the gaming facility licensee or indirectly on behalf of the licensee by a third party within any five-day period shall be considered to have been made during a single trip.
§29-25-24. Individual gaming restrictions.
(a) An individual may not enter a designated gaming facility area or remain in a designated gaming facility to participate in authorized games of chance area only if the individual:
(1) Is not a either;
(A) A registered overnight guest at the historic resort hotel on whose premises the gaming facility is located;
(B) A person who is a not a registered overnight guest, but is a registered participant at a convention or event being held at the historic resort hotel:
Provided, That this paragraph does not apply on any calendar day when less than four hundred guest rooms are occupied at the historic resort hotel; or
(C) A member of a home-owner or facility association that entitles members to substantial privileges at the historic resort hotel on whose premises the gaming facility is located or an overnight guest of such a member:
Provided, That the association was in existence as of April 1, 2009;
(2) Is under the age of at least twenty-one years of age;
(3) Is not visibly intoxicated;
(4) Is Has not been determined by the gaming facility operator or the commission to be unruly, disruptive or otherwise interfering with operation of the gaming facility; or to be likely to commit, or to attempt to commit, a violation of this article; and
(5) Has not been barred by the commission from entering a gaming facility.
(b) Notwithstanding any provisions of this code to the contrary, no employee of the commission or employee of the historic resort hotel or any member of his or her immediate household may wager at the gaming facility.
§29-25-25. Offenses and penalties.
(a) A gaming licensee is guilty of unlawful operation of a game of chance West Virginia Lottery table game when:
(1) The licensee operates a game of chance West Virginia Lottery table game or places a video lottery game or video lottery terminal in any location other than a gaming facility that is not a designated gaming area approved by the commission;
(2) The licensee acts or employs another person to act a shill or decoy as if he or she is not an agent or employee of the licensee in order to encourage participation in a game of chance West Virginia Lottery table game in a gaming facility;
(3) The licensee knowingly permits an individual under the age of twenty-one years of age to enter or remain in a gaming facility for the purpose of making a wager designated gaming area or to play video lottery terminals or West Virginia Lottery table game at a licensed gaming facility; or
(4) The licensee exchanges tokens, chips or other forms of credit to be used for wagering in a gaming facility for anything of value except in exchange for money or credits to a player's account;
(5) The licensee operates a West Virginia Lottery table game or places a video lottery game or video lottery terminal into play without authority of the commission to do so;
(6) The licensee knowingly conducts, carries on, operates or exposes for play or allows to be conducted, carried on, operated or exposed for play any West Virginia Lottery table game, video lottery game, video lottery terminal or other device, equipment or material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed to deceive the public; or
(7) The licensee employs an individual in a position or to perform duties, for which a license is required by this article or rules of the commission and the employee does not have a license issued under the provisions of this article or the licensee continues to employ the individual in a position or to perform duties, for which a license is required by this article or rules of the commission, after the employee's license expired, was revoked by the commission or not renewed by the commission.
(b) A person is guilty of a misdemeanor when:
(1) The person operates, carries on or exposes for play an West Virginia Lottery table game prior to obtaining a license or after the person's license has expired and prior to actual renewal of the license or before the West Virginia Lottery table game and the licensee's rules for play for the game are approved or modified and approved by the commission;
(2) The person works or is employed in a position requiring a license under the provisions of this article without having the license required by this article;
(3) A licensee who possesses any video lottery terminal or other device, equipment or material which the person knows has been manufactured, distributed, sold, tampered with or serviced in violation of the provisions of this article; or
(4) A licensee who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play any video lottery game, video lottery terminal, or other device, equipment or material which has in any manner been tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal random selection of characteristics or the normal chance of the video lottery game.
(b) (c) A person is guilty of felonious wager a felony when:
(1) The person offers, promises or gives anything of value or benefit to a person who is connected has an ownership or financial interest in, is employed by or has a service contract with a gaming facility or to that person's spouse or any dependent child or dependent parent, pursuant to an agreement or arrangement, in fact or implied from the circumstances, or with intent that the promise or thing of value or benefit will influence the actions of the person to whom the offer, promise, or gift was made in order to affect or attempt to affect the outcome of an authorized game of chance a West Virginia Lottery table game or to influence official action of the commission. For the purposes of this subdivision and subdivision (2) of this subsection, the term "person who is connected with a gaming facility" includes, but is not limited to, a person licensed under this article as well as an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a promise of anything of value or benefit while the person is connected with a gaming facility, pursuant to an understanding or arrangement or with the intent that the promise or thing of value or benefit will influence the actions of the person to affect or attempt to affect the outcome of an authorized game of chance a West Virginia Lottery table game, or to influence official action of the commission;
(3) The person uses or possesses on property owned by the licensed gaming facility or on property contiguous to the gaming facility, with the intent to use, an electronic, electrical or mechanical a device that is designed, constructed or programmed to assist the user or another person:
(A) In projecting the outcome of an authorized game of chance a West Virginia Lottery table game;
(B) In keeping track of cards played dealt or in play;
(C) In analyzing the probability of the occurrence of an event relating to an authorized game of chance a West Virginia Lottery table game; or
(D) In analyzing the strategy for playing or betting to be used in an authorized game of chance a West Virginia Lottery table game, except as permitted in writing by the commission; or
(E) In obtaining an advantage at playing any West Virginia Lottery table game at a licensed gaming facility authorized under this article to operate a West Virginia Lottery table game;
(4) The person cheats at an authorized game of chance a West Virginia Lottery table game in a gaming facility;
(5) The person manufacturers, sells, or distributed any cards, chips, dice, game or device which is intended to be used to violate any provision of this article or the table gaming laws of any other state;
(6) The person instructs a person in cheating or in the use of a device for that purpose with the knowledge or intent that the information or use conveyed may be employed to violate any provision of the article;
(7) The person places a bet after acquiring knowledge, not available to all players, of the outcome of the game of chance West Virginia Lottery table game which is the subject of the bet or aids a person in acquiring the knowledge for the purpose of placing a bet contingent on that outcome;
(8) The person claims, collects, takes or attempts to claim, collect or take money or anything of value into or from a gaming facility, with intent to defraud, without having made a wager contingent on winning a game of chance West Virginia Lottery table game, or claims, collects or takes an amount of money or thing of value or greater value than the amount won;
(9) The person knowingly uses chips, electronic media or tokens that are counterfeit chips or tokens to place a wager in a gaming facility;
(10) The person knowingly uses any medium other than chips, tokens or other methods of credit approved by the commission to place a wager in a gaming facility;
(11) The person, not a gaming licensee or employee or agent of a gaming licensee facility licensed under this article acting in furtherance of the gaming licensee's interests, has in his or her possession on grounds owned by the gaming facility licensed under this article or on grounds contiguous to the gaming facility, any device, by whatever name called, intended to be used to violate a provision of this article or a rule of the commission implementing or explaining a provision of this article; or
(12) The person, not a gaming licensee or agent of a gaming licensee acting in furtherance of the gaming licensee's interests, has in his or her possession any key or device designed for the purpose of opening, entering or affecting the operation of an authorized game of chance a West Virginia Lottery table game, drop box or an electronic or mechanical device connected with or used in connection with an authorized game of chance a West Virginia Lottery table game in a gaming facility or for removing coins, tokens, chips or other contents therefrom.
(c) (d) Any person who violates the provisions of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in a county or regional jail for not more than and confined in jail for not more than six months, except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.
(d) (e) Any person who violates the provisions of subsection (b) (c) of this section is guilty or a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 and committed to the department of corrections of a definite a state correctional facility for a term of imprisonment of not less than one year nor more than five years.
(f) With regard to subdivision (3), subsection (c) of this section, the gaming facility licensee shall post notice of this prohibition and the penalties of this section in a manner determined by the commission.
§29-25-26. Forfeiture of property.
(a) Anything of value, including all traceable proceeds including, but not limited to, real and personal property, moneys, negotiable instruments, securities and conveyances, is subject to forfeiture to the State of West Virginia if the item was used for any of the following:
(1) As a bribe intended to affect the outcome of an authorized game of chance a West Virginia Lottery table game in a gaming facility; or
(2) In exchange for or to facilitate a violation of this article.
(b) The Legislature finds and declares that the seizure and sale of items under the provisions of this section is not contemplated to be a forfeiture as that term is used in Section five, Article XII of the Constitution of West Virginia and, to the extent that a seizure and sale may be found to be a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article are not part of net proceeds as it is contemplated by Section five, Article XII of the Constitution of West Virginia.
(b) (c) Subsection (a) of this section does not apply if the act or omission which would give rise to the forfeiture was committed or omitted without knowledge or consent of the owner of the property to be forfeited.
§29-25-28. Specific provision for video lottery games.
The commission is authorized to implement and operate video lottery games at one gaming facility in this state in accordance with the provisions of this article and the applicable provisions of article twenty-two-a of this chapter. The provisions of said article apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two-a of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this chapter.
§29-25-29. Video lottery terminal requirements; application for approval of video lottery terminals; testing of video lottery terminals; report of test results; modifications to previously approved models; conformity to prototype; seizure and destruction of terminals.

(a) Video lottery terminals registered with and approved by the commission for use at the gaming facility may offer video lottery games regulated, controlled, owned and operated by the commission in accordance with the provisions of this section and utilizing specific game rules.
(b) A manufacturer may not sell or lease a video lottery terminal for placement at the gaming facility unless the terminal has been approved by the commission. Only manufacturers with licenses may apply for approval of a video lottery terminal or associated equipment. The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.
(c) The commission may require that two working models of a video lottery terminal be transported to the location designated by the commission for testing, examination and analysis.
(1) The manufacturer shall pay all costs of testing, examination, analysis and transportation of such video lottery terminal models. The testing, examination and analysis of any video lottery terminal model may require dismantling of the terminal and some tests may result in damage or destruction to one or more electronic components of such terminal model. The commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal.
(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the acceptance test conducted by the commission, the manufacturer shall make all modifications required by the commission.
(d) After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article. Prior to approving a particular terminal model, the commission may require a trial period not to exceed sixty days for a licensed gaming facility to test the terminal. During the trial period, the manufacturer may not make any modifications to the terminal model unless modifications are approved by the commission.
(e) The video lottery terminal manufacturer and licensed gaming facility are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment. The manufacturer and licensed gaming facility shall not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved by the commission. The request shall contain a detailed description of the type of change, the reasons for the change and technical documentation of the change.
(f) Each video lottery terminal approved for placement at the gaming facility shall conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission. If any video lottery terminal or any video lottery terminal modification, which has not been approved by the commission, is supplied by a manufacturer and operated by the gaming facility, the commission shall seize and destroy all of that licensed gaming facility's and manufacturer's noncomplying video lottery terminals and shall suspend the license and permit of the licensed gaming facility and manufacturer.
§29-25-30. Video lottery terminal hardware and software requirements; hardware specifications; software requirements for randomness testing; software requirements for percentage payout; software requirements for continuation of video lottery game after malfunction; software requirements for play transaction records.

(a) The commission may approve video lottery terminals and in doing so shall take into account advancements in computer technology, competition from nearby states and the preservation of jobs at the historic resort hotel. In approving video lottery terminals licensed for placement in this state the commission shall insure that the terminals meet the following hardware specifications:
(1) Electrical and mechanical parts and design principles may not subject a player to physical hazards or injury.
(2) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of one hundred eighty days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.
(3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.
(4) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.
(5) A bill or voucher acceptor or other means accurately and efficiently to establish credits shall be installed on each video lottery terminal. All acceptors shall be approved by the commission prior to use on any video lottery terminal in this state.
(6) Access to the interior of video lottery terminal shall be controlled through a series of locks and seals.
(7) The main logic boards and all erasable programmable read- only memory chips ("EPROMS") are considered to be owned by the commission and shall be located in a separate locked and sealed area within the video lottery terminal.
(8) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.
(9) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may be approved by the commission.
(10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and capturing and retaining an electronic copy of the ticket data as approved by the commission: Provided, That the printing mechanism is optional on any video lottery terminal which is designed and equipped exclusively for coin or token payouts. The following information shall be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:
(i) The number of credits accrued;
(ii) Value of the credits in dollars and cents displayed in both numeric and written form;
(iii) Time of day and date;
(iv) Validation number; and
(v) Any other information required by the commission.
(11) A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:
(i) Manufacturer of the video lottery terminal;
(ii) Serial number of the terminal; and
(iii) Model number of the terminal.
(12) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play which are incomplete, confusing, misleading or inconsistent with game rules approved by the commission. For each video lottery game, there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols. All information required by this subdivision shall be displayed under glass or another transparent substance. No stickers or other removable devices may be placed on the video lottery terminal screen or face without the prior approval of the commission.
(13) Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the commission's central computer system by use of a communications protocol provided by the commission to each permitted manufacturer, which protocol shall include information retrieval and terminal activation and disable programs, and the commission may require each licensed racetrack to pay the cost of a central site computer as a part of the licensing requirement.
(14) All video lottery terminals shall have a security system which temporarily disables the gaming function of the terminal while opened.
(b) Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:
(1) Chi-square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence limit using the standard chi- square statistical analysis of the difference between the expected result and the observed result.
(2) Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the "runs test" for the existence of recurring patterns within a set of data.
(3) Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play.
(4) Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.
(c) Each video lottery terminal shall pay out no less than eighty percent and no more than ninety-nine percent of the amount wagered. The theoretical payout percentage will be determined using standard methods of probability theory.
(d) Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction shall be returned to the player.
(e) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:
(1) Number of coins inserted by players or the coin equivalent if a bill acceptor is being used or tokens or vouchers are used;
(2) Number of credits wagered;
(3) Number of total credits, coins and tokens won;
(4) Number of credits paid out by a printed ticket;
(5) Number of coins or tokens won, if applicable;
(6) Number of times the logic area was accessed;
(7) Number of times the cash door was accessed;
(8) Number of credits wagered in the current game;
(9) Number of credits won in the last complete video lottery game; and
(10) Number of cumulative credits representing money inserted by a player and credits for video lottery games won, but not collected.
(f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, all meter readings shall be recorded in the presence of a commission employee.
(g) The primary responsibility for the control and regulation of any video lottery games and video lottery terminals operated pursuant to this article rests with the commission.
(h) The commission shall directly or through a contract with a third party vendor other than the video lottery licensee, maintain a central site system of monitoring the lottery terminals, utilizing an online or dial-up inquiry. The central site system shall be capable of monitoring the operation of each video lottery game or video lottery terminal operating pursuant to this article and, at the direction of the director, immediately disable and cause not to operate any video lottery game and video lottery terminal. As provided in this section, the commission may require the licensed racetrack to pay the cost of a central site computer as part of the licensing requirement.
§29-25-31. The specific video lottery duties required of the gaming facility.

The gaming facility licensee shall:
(a) Acquire video lottery terminals by purchase, lease or other assignment and provide a secure location for the placement, operation and play of the video lottery terminals;
(b) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or online communication between each video lottery terminal and the commission's central control computer;
(c) Permit no person to tamper with or interfere with the operation of any video lottery terminal;
(d) Ensure that any telephone lines from the commission's central control computer to the video lottery terminals located at the licensed gaming facility are at all times connected and prevent any person from tampering or interfering with the operation of the telephone lines;
(e) Ensure that video lottery terminals are within the sight and control of designated employees of the license gaming facility;
(f) Ensure that video lottery terminals are placed and remain placed in the specific locations within the gaming facility that have been approved by the commission. No video lottery terminal or terminals at the gaming facility shall be relocated without the prior approval of the commission;
(g) Monitor video lottery terminals to prevent access to or play by persons who are under the age of twenty-one years or who are visibly intoxicated;
(h) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;
(i) Provide no access by a player to an automated teller machine (ATM) in the area of the gaming facility where video lottery games are played;
(j) Pay for all credits won upon presentment of a valid winning video lottery ticket;
(k) Report promptly to the manufacturer and the commission all video lottery terminal malfunctions and notify the commission of the failure of a manufacturer or service technician to provide prompt service and repair of such terminals and associated equipment;
(l) Install, post and display prominently at locations within or about the licensed gaming facility signs, redemption information and other promotional material as required by the commission; and
(m) Promptly notify the commission in writing of any breaks or tears to any logic unit seals.
§29-25-32. Surcharge; Capital Reinvestment Fund.
(a) For all fiscal years beginning on or after July 1, 2009, there shall be imposed a surcharge of ten percent against the share of gross terminal income retained by the gaming facility as provided by section twenty of this article.
(b) The Capital Reinvestment Fund is hereby created within the Lottery Fund. The surcharge amount attributable to the historic resort hotel shall be retained by the commission and deposited into a separate capital reinvestment account for the historic resort hotel. For each dollar expended by the historic resort hotel for capital improvements at the historic resort hotel, of any amenity associated with the historic resort hotel's destination resort facility operations, or at adjacent facilities owned by the historic resort hotel having a useful life of seven or more years and placed in service after April 1, 2009, the licensed gaming facility shall receive one dollar in recoupment from its Capital Reinvestment Fund account: If a historic resort hotel's unrecouped capital improvements exceed its Capital Reinvestment Fund account at the end of any fiscal year, the excess improvements may be carried forward to seven subsequent fiscal years.
(c) Any moneys remaining in the historic resort hotel's Capital Reinvestment Fund account at the end of any fiscal year shall be deposited in the Historic Resort Hotel Fund.
§29-25-33. License to be a provider of management services.
(a) License. -- The commission may issue a license to a person providing management services under a management services contract to a gaming facility when the commission determines that the person meets the requirements of this section and any applicable rules of the commission.
(b) License qualifications. -- Each applicant who is an individual and each individual who controls an applicant, as provided in subsection (f), section two of this article, shall be of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry out the functions of a management services provider. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, specifically determined by the commission to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.
(c) Management service provider specifications. -- An applicant for a license to provide management services to a gaming facility licensee shall demonstrate that the management services that the applicant plans to offer to the gaming facility licensee conform or will conform to standards established by rules of the commission and applicable state law.
(d) License application requirements. -- An applicant for a license to provide management services to a gaming facility licensee shall:
(1) Submit an application to the commission in the form required by the commission including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application fee for deposit into the Historic Resort Hotel Fund in the amount of $100.
(e) Authorization. -- A license to provide management services to a gaming facility licensee authorizes the licensee to provide management service to a gaming facility while the license is active. The commission may by rule establish the conditions which constitute an emergency under which the commission may issue provisional licenses pending completion of final action on an application.
(f) Fees, expiration date and renewal. -- A licensed provider of management services shall pay to the commission an annual license fee of $100 for an initial term beginning prior to the date of the provider's first contract with a gaming facility licensee and continuing through the end of the twelfth month thereafter whenever the licensee has paid the renewal fee and has continued to comply with all applicable statutory and rule requirements. The commission shall renew a license to provide management services to a gaming facility annually thereafter. A gaming facility licensee may continue to use the management services provided by the management services provider while that provider was licensed, notwithstanding the expiration of the provider's license, unless the commission finds the services provided are not conforming to standards established by rule of the commission and applicable state law.
§29-25-34. State ownership of West Virginia Lottery table games.
All West Virginia Lottery table games authorized by this article shall be West Virginia lottery games owned by the State of West Virginia. A gaming facility license granted to a historic resort hotel by the commission pursuant to this article shall include the transfer by the commission to the historic resort hotel limited license rights in and to the commission's intellectual property ownership of the West Virginia lottery games which includes granting licensees limited lawful authority relating to the conduct of lottery table games for consideration, within the terms and conditions established pursuant to this article and any rules promulgated under this article.
§29-25-35. Preemption.
No local law or rule providing any penalty, disability, restriction, regulation or prohibition for operating a historic resort hotel with West Virginia Lottery table games or supplying a licensed gaming facility may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this article.
§29-25-36. Exemption from federal law.
Pursuant to Section 2 of chapter 1194, 64 Stat. 1134, 15 U. S. C. §1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from chapter 1194, 64 Stat. 1134, 15 U. S. C. §1171 to §1178.
§29-25-37. Game rules of play; disputes.
(a) As an agent of the commission authorized to operate West Virginia Lottery table games, the gaming facility licensee shall have written rules of play for each West Virginia Lottery table game it operates that are approved by the commission before the West Virginia Lottery table game is offered to the public. Rules of play proposed by the gaming facility may be approved, amended or rejected by the commission.
(b) All West Virginia Lottery table games shall be conducted according to the specific rules of play approved by the commission. All wagers and pay-offs of winning wagers shall be made according to those rules of play, which shall establish any limitations necessary to assure the vitality of West Virginia Lottery table game operations.
(c) The gaming facility licensee shall make available in printed form to any patron, upon request of the patron, the complete texts of the rules of play of any West Virginia Lottery table games in operation at the gaming facility, pay-offs of winning wagers and any other advice to the player required by the commission.
(d) Patrons are considered to have agreed that the determination of whether the patron is a valid winner is subject to the game of play rules and, in the case of any dispute, will be determined by the commission. The determination by the commission shall be final and binding upon all patrons and shall not be subject to further review or appeal.
§29-25-38. Shipment of gambling devices.
All shipments of gambling devices, including video lottery machines, to the licensed gaming facility in this state, the registering, recording and labeling of which have been completed by the manufacturer or dealer thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U. S. C. §1171 to §1178, are legal shipments of gambling devices into the State of West Virginia.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 575--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22-29; to amend and reenact §29-25-1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25- 18, §29-25-19, §29-25-20, §29-25-21, §29-25-22, §29-25-23, §29-25- 24, §29-25-25 and §29-25-26 of said code; and to amend said code by adding thereto twelve new sections, designated §29-25-22a, §29-25- 28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29-25- 34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all relating to gaming at a historic resort hotel and pari-mutuel racetracks generally; designating certain moneys as state moneys and establishing audit provisions; updating and conforming provisions for consistency purposes between hotel and racetracks; legislative findings and intent; authorizing certain West Virginia lottery games; modifying licensure requirements and fees therefor; renaming State Gaming Fund the Historic Resort Hotel Fund; providing for distribution of the Historic Resort Hotel Fund; creating formula for renewal fee assessments; expanding licensees' authority to set wagers with commission approval; altering maximum bets for video lottery machines; redefining gross terminal income to allow and account for promotional play at hotel and racetracks; authorizing hotel to contract for management services with commission approval; authorizing the hotel to lease certain services; creating the Human Resource Benefit Fund; permissible expenditures; establishing Human Resource Benefit Advisory Board and setting criteria for its membership; powers and duties; authorizing certain complimentary services; restricting who may enter the designated gaming area of the hotel to overnight guests, certain participants at hotel-based events and residents; clarifying and specifying forfeiture of property provisions; authorizing commission to operate slot machines and video lottery games; establishing requirements for video lottery terminals; establishing specific duties required of the gaming facility; creating Capital Reinvestment Fund; imposing surcharge against share of gross terminal income to be paid into the Capital Reinvestment Fund; declaring all authorized games to be owned by the state; preempting inconsistent county and municipal ordinances or rules; limiting taxing authority; declaring exemption from federal law to facilitate authorization of legal gaming; establishing rules of play and dispute resolution; authorizing shipment of gambling devices into state; modifying distribution of revenue; license suspension and revocation; revising civil penalties; authorizing emergency rulemaking; and establishing and modifying criminal offenses and penalties.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 575, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: Boley--1.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 575) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: Boley--1.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 575) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, April 11, 2009, at 11 a.m.
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