H. B. 4592
(By Delegates Armstead and White)
[Introduced February 19, 2010
; referred to the
Committee on Political Subdivisions then Finance.]
A BILL to amend and reenact §8-15-8a and §8-15-8b of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §8-15-8d; and to amend and
reenact §12-4-14 of said code, all relating to volunteer and
part volunteer fire companies and departments; eligibility for
allocations from the Municipal Pensions and Protection Fund or
the Fire Protection Fund; authorized expenditures of moneys
from the Municipal Pensions and Protection Fund or the Fire
Protection Fund; sworn statement of annual expenditures or
report requirements; allocation of Municipal Pensions and
Protection Fund or the Fire Protection Fund moneys upon
noncompliance or decertification; and penalties for filing a
fraudulent sworn statement of expenditures or report.
Be it enacted by the Legislature of West Virginia:
That §8-15-8a and §8-15-8b 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 §8-15-8d; and that
§12-4-14 of said code be amended and reenacted, all to read as
follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-8a. Eligibility for allocation from Municipal Pensions and
Protection Fund or the Fire Protection Fund.
In order To be eligible to receive revenues allocated from the
Municipal Pensions and Protection Fund or the Fire Protection Fund,
each volunteer or part volunteer fire company or department must
meet the requirements listed in subdivisions (a) through
(c) (d) of
this section.
Each volunteer or part volunteer fire company or department
must:
(a) Submit and maintain current submission of fire loss data
to the State Fire Marshal, including verification, by notarized
statement, if no fire loss has occurred;
(b) Complete or be in the process of receiving firefighters
training, including section one of the West Virginia University
Fire Service Extension or its equivalent. Such fire company or
department must have at least ten members certified as having
completed such training or if a volunteer fire company or department has twenty or fewer members, fifty percent of the active
volunteer members must have completed such training;
and
(c) Comply with the sworn statement of annual expenditures or
report requirements set forth in section eight-d of this article;
and
(c) (d) Comply with all
other applicable federal and state
laws.
§8-15-8b. Authorized expenditures of moneys from the Municipal
Pensions and Protection Fund or the Fire Protection
Fund; redistribution upon decertification.
(a) Revenues Moneys allocated from the Municipal Pensions and
Protection Fund or the Fire Protection Fund to volunteer and part
volunteer fire companies and departments may be expended only for
the items listed in subdivisions (1) through
(12) (13) of this
section subsection.
Funds Moneys received from the state for volunteer and part
volunteer fire companies and departments, pursuant to sections
fourteen-d and thirty-three, article three, and section
sixteen-a,
article twelve seven, article twelve-c, all of chapter thirty-three
of this code, may not be commingled with funds received from any
other source. Expenditures may be made for the following:
(1) Personal protective equipment, including protective head
gear, bunker coats, pants, boots, combination of bunker pants and
boots, coats and gloves;
(2) Equipment for compliance with the national fire protection
standard or automotive fire apparatus,
NFPA-1901;
(3) Compliance with insurance service office recommendations
relating to fire departments;
(4) Rescue equipment, communications equipment and ambulance
equipment:
Provided, That no moneys received from the
Municipal
Pensions and
Protection Fund or the
Fire Protection Fund may be
used for equipment for personal vehicles owned or operated by
volunteer fire company or department members;
(5) Capital improvements reasonably required for effective and
efficient fire protection service and maintenance of the capital
improvements;
(6) Retirement of debts;
(7) Payment of utility bills;
(8) Payment of the cost of immunizations, including any
laboratory work incident to the immunizations, for firefighters
against
hepatitis-b and other blood borne pathogens:
Provided,
That the vaccine shall be purchased through the state immunization
program or from the lowest cost vendor available:
Provided,
however, That volunteer and part volunteer fire companies and
departments shall seek to obtain no cost administration of the
vaccinations through local boards of health:
Provided further,
That in the event any volunteer or part volunteer fire company or
department is unable to obtain no cost administration of the vaccinations through a local board of health, the company or
department shall seek to obtain the lowest cost available for the
administration of the vaccinations from a licensed health care
provider;
(9) Any filing fee required to be paid to the Legislative
Auditor's Office under section fourteen, article four, chapter
twelve of this code relating to sworn statements of annual
expenditures submitted by volunteer or part volunteer fire
companies or departments that receive state funds or grants;
(10) (9) Property/casualty insurance premiums for protection
and indemnification against loss or damage or liability;
(10) Life insurance premiums to provide a death benefit not to
exceed $100,000 for firefighters killed in the line of duty;
(11) Operating expenses reasonably required in the normal
course of providing effective and efficient fire protection
service, which include, but are not limited to, gasoline, bank
fees, postage and accounting costs;
and
(12) Dues paid to national, state and county associations;
and
(13) Educational and training supplies and fire prevention
promotional materials, not to exceed $500 per year.
(b) If a volunteer or part volunteer fire company or
department purchases an item with moneys allocated from the
Municipal Pensions and Protection Fund or the Fire Protection Fund
and the item is subsequently sold, any moneys derived by the company or department from the sale of that item shall be expended
in accordance with the provisions of subsection (a) of this
section.
(c) If the State Fire Marshal issues a cease and desist order
to a volunteer or part volunteer fire company or department to stop
operations after the State Fire Commission has withdrawn
certification pursuant to article three, chapter twenty-nine of
this code, the State Fire Marshal shall, within sixty days of the
cease and desist order, transfer any unexpended, unencumbered
moneys which were allocated to the volunteer fire company or
department from the Municipal Pensions and Protection Fund or the
Fire Protection Fund to a special revenue account hereby created in
the State Treasury, designated the "Volunteer Fire Department
Decertification Account." The next following quarter the State
Treasurer shall pay the amount held in the special revenue account
to the Fire Protection Fund to be redistributed to eligible
volunteer fire companies or departments.
(d) If the State Fire Marshal issues a cease and desist order
to a volunteer or part volunteer fire company or department to stop
operations after the State Fire Commission has withdrawn
certification pursuant to the provisions of article three, chapter
twenty-nine of this code, the State Fire Marshal shall, within one
year of the cease and desist order, implement one of the following
options to sell or transfer any items purchased by the decertified volunteer fire company or department with moneys allocated from the
Municipal Pensions and Protection Fund or the Fire Protection Fund:
(1) If the item was purchased solely with moneys allocated
from the Municipal Pensions and Protection Fund or the Fire
Protection Fund, the State Fire Marshal may transfer the item to
another volunteer fire company or department, with priority given
to companies or departments located in the municipality or county
in which the decertified company or department was located;
(2) If the item was purchased solely with moneys allocated
from the Municipal Pensions and Protection Fund or the Fire
Protection Fund, the State Fire Marshal may sell the item and any
moneys derived from the sale of that item shall be placed in a
special revenue account, designated the "Volunteer Fire Department
Decertification Account," established in subsection (c) of this
section. The next following quarter the State Treasurer shall pay
the amount held in the special revenue account to the Fire
Protection Fund to be redistributed to eligible volunteer fire
companies or departments;
(3) If the item was purchased with moneys allocated from the
Municipal Pensions and Protection Fund or the Fire Protection Fund
and moneys allocated from municipal or county sources, the State
Fire Marshal may transfer the item to another volunteer fire
company or department in the municipality or county where the
decertified company or department is located if each municipality or county which allocated moneys towards the purchase of the item
agrees to the transfer; or
(4) If the item was purchased with moneys allocated from the
Municipal Pensions and Protection Fund or the Fire Protection Fund
and moneys allocated from municipal, county or other sources, the
State Fire Marshal may sell the item and distribute the proceeds
derived from the sale on a prorata basis according to the State
Fire Marshal's reasonable approximation of the percentage of moneys
allocated from each funding source for the purchase of the item.
Any moneys derived from the sale which are attributable to
allocations from the Municipal Pensions and Protection Fund or the
Fire Protection Fund shall be placed in a special revenue account,
designated the "Volunteer Fire Department Decertification Account,"
established in subsection (c) of this section. The next following
quarter the State Treasurer shall pay the amount held in the
special revenue account to the Fire Protection Fund to be
redistributed to eligible volunteer fire companies or departments.
(e) The State Fire Marshal shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish criteria for the
sale or transfer of items or moneys pursuant to the provisions of
subsections (c) and (d) of this section and to otherwise implement
the provisions of subsections (c) and (d).
§8-15-8d. Sworn statement of annual expenditures or report by volunteer or part volunteer fire companies or
departments; penalties for noncompliance; penalties
for fraudulent statement.
(a) Volunteer or part volunteer fire companies or departments
receiving formula distributions pursuant to sections fourteen-d and
thirty-three, article three, and section seven, article twelve-c,
all of chapter thirty-three of this code, shall either:
(1) File a report, as defined in section fourteen, article
four, chapter twelve of this code, with the Legislative Auditor on
or before July 1 of each year. The report shall be made by an
independent certified public accountant at the cost of the
volunteer fire company or department. The scope of the report is
limited to showing that the funds distributed were spent for
authorized purposes; or
(2) File a sworn statement of annual expenditures with the
Legislative Auditor on or before July 1 of each year. The sworn
statement of expenditures shall be signed by the chief or director
of the volunteer fire company or department and shall be made under
oath and acknowledged before a notary public.
(b) If the sworn statement of annual expenditures or report
required by this section is not filed with the Legislative Auditor
by July 1, or unless the time period is extended by the Legislative
Auditor, the Legislative Auditor shall notify the State Treasurer
who shall withhold payment of any amount that would otherwise be distributed to the volunteer fire company or department under the
provisions of sections fourteen-d and thirty-three, article three,
and section seven, article twelve-c, all of chapter thirty-three of
this code, until the report is submitted to the Legislative
Auditor. Moneys withheld pursuant to this subsection (b) shall be
deposited quarterly in a special revenue account, designated the
"Volunteer Fire Department Audit Account," created in subsection
(c) of this section.
(c) The Legislative Auditor may assign an employee or
employees to perform audits or reviews at the direction of the
Legislative Auditor of the disbursement of state grant funds to
volunteer fire departments. The volunteer fire company or
department shall cooperate with the Legislative Auditor, the
Legislative Auditor's employees and the State Auditor in performing
their duties under this section. If a volunteer fire company or
department does not cooperate as required by the provisions of this
section, the Legislative Auditor shall notify the State Treasurer,
who shall withhold payment of any amount that would otherwise be
distributed to the volunteer fire company or department under the
provisions of sections fourteen-d and thirty-three, article three,
and section seven, article twelve-c, all of chapter thirty-three of
this code, until the Legislative Auditor notifies the treasurer
that the volunteer fire company or department has complied with
the provisions of this section. The State Treasurer shall quarterly pay the amount withheld into a special revenue account
hereby created in the State Treasury, designated the "Volunteer
Fire Department Audit Account". Upon notice from the Legislative
Auditor that a volunteer fire company or department has not
complied with the provisions of this section for four consecutive
quarters, the next following quarter the State Treasurer shall pay
the amount withheld in the special revenue account to the Fire
Protection Fund to be redistributed to eligible volunteer fire
companies or departments. Thereafter any moneys that would
otherwise have been distributed to the volunteer fire company or
department under the provisions of sections fourteen-d and thirty-
three, article three, and section seven, article twelve-c, all of
chapter thirty-three of this code, shall be retained in the
Municipal Pensions and Protection Fund or the Fire Protection Fund
and distributed to eligible volunteer fire companies or
departments. A volunteer fire company or department subsequently
complying with the provisions of this section is eligible to
receive moneys under the provisions of sections fourteen-d and
thirty-three, article three, and section seven, article twelve-c,
all of chapter thirty-three of this code, from the date of
compliance forward, but may not recover moneys previously
redistributed or retained in the Municipal Pensions and Protection
Fund or the Fire Protection Fund pursuant to the provisions of this
subsection (c).
(d) Whenever the State Auditor performs an audit of a
volunteer fire company or department for any purpose, the Auditor
shall also conduct an audit of other state funds received by the
volunteer fire company or department pursuant to sections
fourteen-d and thirty-three, article three, and section seven,
article twelve-c, all of chapter thirty-three of this code. The
State Auditor shall send a copy of the audit to the Legislative
Auditor. The Legislative Auditor may accept an audit performed by
the State Auditor in lieu of performing an audit under this
section.
(e) If the Legislative Auditor is notified by a grantor, as
defined in section fourteen, article four, chapter twelve of this
code, that a volunteer fire company or department has failed to
file a report or a sworn statement of expenditures for a state
grant it received, the Legislative Auditor shall notify the State
Treasurer, who shall withhold further distributions to the
volunteer fire company or department in the same manner provided in
subsection (c) of this section.
(f) Any report submitted pursuant to the provisions of this
section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(g) Any person who files a fraudulent sworn statement of
expenditures or a fraudulent report pursuant to this section is
guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or imprisoned in a state
correctional facility for not less than one year nor more than five
years, or both fined and imprisoned.
CHAPTER 12. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
§12-4-14. Accountability of persons receiving state funds or
grants; criminal penalties.
(a) For the purposes of this section:
(1) "Grantor" means a state spending unit awarding a state
grant.
(2) "Person" includes any corporation, partnership,
association, individual or other legal entity. The term "person"
does not include a state spending unit or a local government as
defined in section one-a, article nine, chapter six of this code.
(3) "Report" means an engagement, such as an agreed-upon
procedures engagement or other attestation engagement, performed
and prepared by a certified public accountant to test whether state
grants were spent as intended. The term "report" does not mean a
full-scope audit or review of the person receiving state funds.
(4) "State grant" means funding provided by a state spending
unit, regardless of the original source of the funds, to a person
upon application for a specific purpose. The term "state grant"
does not include: (A) Payments for goods and services purchased by
a state spending unit; (B) compensation to state employees and public officials; (C) reimbursements to state employees and public
officials for travel or incidental expenses; (D) grants of student
aid; (E) government transfer payments; (F) direct benefits provided
under state insurance and welfare programs; (G) funds reimbursed to
a person for expenditures made for qualified purposes when receipts
for the expenditures are required prior to receiving the funds:
Provided, That notwithstanding the provisions of this subdivision,
funding provided pursuant to section twelve, article two, chapter
five-b is included within the term "state grant"; (H) retirement
benefits; and (I) federal pass-through funds that are subject to
the federal Single Audit Act Amendments of 1996, 31 U.S.C. 7501,
et
seq. The term "state grant" does not include formula distributions
to volunteer and part-volunteer fire departments made pursuant to
sections fourteen-d and thirty-three, article three, chapter
thirty-three of this code and section seven, article twelve-c of
said chapter.
(b) (1) Any person who receives one or more state grants in
the amount of $50,000 or more in the aggregate in a state's fiscal
year shall file with the grantor a report of the disbursement of
the state grant funds. When the grantor causes an audit, by an
independent certified public accountant, to be conducted of the
grant funds, the audit is performed using generally accepted
government auditing standards and a copy of the audit is available
for public inspection, no report is required to be filed under this section. An audit performed that complies with Office of
Management and Budget circular A-133, as published on June 27,
2003, and submitted within the period provided in this section may
be substituted for the report.
(2) Any person who receives a state grant in an amount less
than $50,000 or who is not required to file a report because an
audit has been conducted or substituted as provided by subdivision
(1) of this subsection shall file with the grantor a sworn
statement of expenditures made under the grant.
(3) Reports and sworn statements of expenditures required by
subdivisions (1) and (2) of this subsection shall be filed within
two years of the end of the person's fiscal year in which the
disbursement of state grant funds by the grantor was made. The
report shall be made by an independent certified public accountant
at the cost of the person receiving the state grant. State grant
funds may be used to pay for the report if the applicable grant
provisions allow. The scope of the report is limited to showing
that the state grant funds were spent for the purposes intended
when the grant was made.
(c) (1) Any person failing to file a required report or sworn
statement of expenditures within the two-year period provided in
subdivision (3), subsection (b) of this section for state grant
funds disbursed after July 1, 2003, is barred from subsequently
receiving state grants until the person has filed the report or sworn statement of expenditures and is otherwise in compliance with
the provisions of this section.
(2) Any grantor of a state grant shall report any persons
failing to file a required report or sworn statement of
expenditures within the required period provided in subdivision
(3), subsection (b) of this section for a state grant disbursed
after July 1, 2003, to the Legislative Auditor for purposes of
debarment from receiving state grants.
(d) (1) The state agency administering the state grant shall
notify the grantee of the reporting requirements set forth in this
section.
(2) All grantors awarding state grants shall, prior to
awarding a state grant, take reasonable actions to verify that the
person is not barred from receiving state grants pursuant to this
section. The verification process shall, at a minimum, include:
(A) A requirement that the person seeking the state grant
provide a sworn statement from an authorized representative that
the person has filed all reports and sworn statements of
expenditures for state grants received as required under this
section; and
(B) Confirmation from the Legislative Auditor by the grantor
that the person has not been identified as one who has failed to
file a report or sworn statement of expenditures under this
section. Confirmation may be accomplished by accessing the computerized database provided in subsection (e) of this section.
(3) If any report or sworn statement of expenditures submitted
pursuant to the requirements of this section provides evidence of
a reportable condition or violation, the grantor shall provide a
copy of the report or sworn statement of expenditures to the
Legislative Auditor within thirty days of receipt by the grantor.
(4) The grantor shall maintain copies of reports and sworn
statements of expenditures required by this section and make the
reports or sworn statements of expenditures available for public
inspection, as well as for use in audits and performance reviews of
the grantor.
(5) The Secretary of the Department of Administration has
authority to promulgate procedural and interpretive rules and
propose legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
assist in implementing the provisions of subsections (a), (b), (c)
and (d) of this section.
(e) (1) Any state agency administering a state grant shall, in
the manner designated by the Legislative Auditor, notify the
Legislative Auditor of the maximum amount of funds to be disbursed,
the identity of the person authorized to receive the funds, the
person's fiscal year and federal employer identification number and
the purpose and nature of the state grant within thirty days of
making the state grant or authorizing the disbursement of the funds, whichever is later. If the state grant was awarded prior to
October 1, 2005, the grantor shall provide the information required
by this section by December 1, 2005.
(2) The State Treasurer shall provide the Legislative Auditor
the information concerning formula distributions to volunteer and
part-volunteer fire departments, made pursuant to sections
fourteen-d and thirty-three, article three, chapter thirty-three of
this code and section seven, article twelve-c of said chapter, the
Legislative Auditor requests and in the manner designated by the
Legislative Auditor.
(3) The Legislative Auditor shall maintain a list identifying
persons who have failed to file reports and sworn statements
required by this section. The list may be in the form of a
computerized database that may be accessed by state agencies over
the Internet.
(f) An audit of state grant funds may be authorized at any
time by the Joint Committee on Government and Finance to be
conducted by the Legislative Auditor at no cost to the grantee.
(g) (1) Volunteer and part-volunteer fire departments
receiving formula distributions pursuant to sections fourteen-d and
thirty-three, article three, chapter thirty-three of this code and
section seven, article twelve-c of said chapter shall either:
(A) File a report, as defined in subdivision (3), subsection
(a) of this section with the Legislative Auditor within the same time frames as are required for sworn statements of annual
expenditures to be filed under this section. The report shall be
made by an independent certified public accountant at the cost of
the volunteer or part-volunteer fire department. The scope of the
report is limited to showing that the funds distributed were spent
for authorized purposes; or
(B) File a sworn statement of annual expenditures with the
Legislative Auditor on or before February 14 of each year. The
sworn statement of expenditures shall be signed by the chief or
director of the volunteer fire department and shall be made under
oath and acknowledged before a notary public.
(2) If the sworn statement or report required by this
subsection is not filed on or before May 15, unless the time period
is extended by the Legislative Auditor, the Legislative Auditor may
conduct an audit of the volunteer or part-volunteer fire
department.
(3) If the sworn statement of annual expenditures or report
required by this subsection is not filed with the Legislative
Auditor by July 1, unless the time period is extended by the
Legislative Auditor, the Legislative Auditor shall notify the State
Treasurer who shall withhold payment of any amount that would
otherwise be distributed to the fire department under the
provisions of sections fourteen-d and thirty-three, article three,
chapter thirty-three of this code and section seven, article twelve-c of said chapter until the report is complete. Moneys
withheld pursuant to this subdivision are to be deposited in the
special revenue account created in the State Treasury in
subdivision (4) of this subsection.
(4) The Legislative Auditor may assign an employee or
employees to perform audits or reviews at the direction of the
Legislative Auditor of the disbursement of state grant funds to
volunteer fire departments. The volunteer fire department shall
cooperate with the Legislative Auditor, the Legislative Auditor's
employees and the State Auditor in performing their duties under
this section. If the Legislative Auditor determines a volunteer
fire department is not cooperating, the Legislative Auditor shall
notify the State Treasurer who shall withhold payment of any amount
that would otherwise be distributed to the fire department under
the provisions of sections fourteen-d and thirty-three, article
three, chapter thirty-three of this code and section seven, article
twelve-c of said chapter until the Legislative Auditor informs the
Treasurer that the fire department has cooperated as required by
this section. the State Treasurer shall pay the amount withheld
into a special revenue account hereby created in the State Treasury
and designated the "Volunteer Fire Department Audit Account". If,
after one year from payment of the amount withheld into the special
revenue account, the Legislative Auditor informs the State
Treasurer of continued noncooperation by the fire department, the State Treasurer shall pay the amount withheld to the fund from
which it was distributed to be redistributed the following year
pursuant to the applicable provisions of those sections.
(5) Whenever the State Auditor performs an audit of a
volunteer fire department for any purpose the Auditor shall also
conduct an audit of other state funds received by the fire
department pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section seven,
article twelve-c of said chapter. The Auditor shall send a copy of
the audit to the Legislative Auditor. The Legislative Auditor may
accept an audit performed by the Auditor in lieu of performing an
audit under this section.
(6) If the Legislative Auditor is notified by a grantor that
a fire department has failed to file a report or a sworn statement
of expenditures for a state grant it received, the Legislative
Auditor shall notify the Treasurer who shall withhold further
distributions to the fire department in the same manner provided in
subdivision (3) of this subsection.
(h) (g) Any report submitted pursuant to the provisions of
this section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(i) (h) Any person who files a fraudulent sworn statement of
expenditures under subsection (b)
or (g) of this section, a
fraudulent sworn statement under subsection (d) of this section or a fraudulent report under this section is guilty of a felony and,
upon conviction thereof, shall be fined not less than $1,000 nor
more than $5,000 or imprisoned in a state correctional facility for
not less than one year nor more than five years, or both fined and
imprisoned.
NOTE: The purpose of this bill is to provide procedures for
reallocating moneys received by a volunteer fire department from
the Municipal Pensions and Protection Fund or the Fire Protection
Fund when the volunteer fire department does not comply with
certain fiscal reporting requirements or has received a cease and
desist order to stop operations from the State Fire Marshal after
decertification.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§8-15-8d
is new; therefore, it has been completely
underscored.
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