H. B. 2246
(By Delegates Walters, Harrison, Stalnaker, Clements,
Evans, Amores and Hunt)
[Introduced January 25, 1995; referred to the
Committee on Government Organization then Finace.]
A BILL to amend chapter four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirteen, relating
to the state payment for state mandates act; legislative
findings; definitions; requirement for funding of state
mandates; establishing office of local mandates; mandate
review requirements; notification of local impact statement;
appropriations requirement; establishment of government
mandates appeal board; organization; compensation; subpoena
power; quorum, board powers; duties; determination; and
adoption of rules.
Be it enacted by the Legislature of West Virginia:
That chapter four of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article thirteen, to read as follows:
ARTICLE 13. STATE PAYMENT FOR STATE MANDATES ACT.
§4-13-1. Legislative findings.
The Legislature finds and declares that:
(a) Actions of the state government that directly or
indirectly prescribe the manner, standards, level and conditions
of public service to be provided by the state's counties,
municipalities and county boards of education are often taken
with little regard for the fiscal consequences of such actions
upon the affected local jurisdictions.
(b) Many of the state's counties, municipalities and county
boards of education are experiencing varying degrees of fiscal
stress resulting from the need to provide adequate public
services to their citizens but without the local tax resources to
do so.
(c) The state government, prior to imposing new or expanded
service requirements upon its political subdivisions and county
boards of education, should be aware of and confront the issue of
where the burden of paying for those requirements will fall.
(d) It is appropriate, therefore, that the state government
provide full funding for any net additional costs to counties,
municipalities or county boards of education that are incurred by
those jurisdictions in complying with the required performance of
a new or expanded program or service under the provisions of any
state law, rule or order.
§4-13-2. Definitions.
As used in this article:
(a) "Board" means the local government mandates board established pursuant to section eight of this article.
(b) "County" means the governing body and the officers and
employees of a county.
(c) "Expanded program or service" means a program or service
the scope or level of which would be increased, extended or
enhanced by a county's, municipality's or county board of
education's compliance with the provisions of a state law, rule
or order.
(d) "Municipality" means the governing body and the officers
and employees of a municipality.
(e) "Net additional cost" means the cost or costs incurred
or anticipated to be incurred within a one-year period by a
county, municipality or county board of education in performing
or administering a new or expanded program or service required by
a state law, rule or order after subtracting therefrom any
revenues received or receivable by the county, municipality or
county board of education on account of the program or service,
including, but not limited to:
(1) Fees charged to the recipients of the program or
service;
(2) State or federal aid paid specifically or categorically
in connection with the program or service; and
(3) Any offsetting savings resulting from the reduction or
elimination of any other program or service directly attributable
to the performance or administration of the required program or service.
(f) "New program or service" means a program or service
different in kind or purpose from those in existence at the time
of the enactment of a law or promulgation of a rule or order
requiring the performance or administration of the program by one
or more counties, municipalities or county boards of education.
(g) "Office" means the office of local mandates established
pursuant to section four of this article.
(h) "Program or service" means a specific and identifiable
activity of a county, municipality or county board of education
which is available to the general public or which is conducted,
administered or provided for or on behalf of the citizens of a
county, municipality or county board of education.
§4-13-3. Requirement for funding of state mandates.
(a) Notwithstanding any law, rule or order to the contrary,
and except as provided in subsections (c) and (d) of this
section, any provision of a law or of a rule or order issued
pursuant to law, which becomes effective on or after the
effective date of this article and which has the effect of
requiring a county, municipality or county board of education to
perform or administer a new or expanded program or service having
a net additional cost in excess of one thousand dollars for any
county, municipality or county board of education or one hundred
thousand dollars for all affected counties, municipalities or
county boards of education, shall be inoperative in the county, municipality or county board of education until a state
appropriation is made and sufficient funds are provided to each
affected county, municipality or county board of education as are
necessary to pay in full any net additional cost of compliance
with the requirement.
(b) A law subject to the provisions of subsection (a) of
this section shall request an initial appropriation therein in an
amount sufficient to pay in full any net additional cost of
compliance by any affected county, municipality or county board
of education, or both as the case may be. Thereafter the state
shall provide funding for continuing programs or services,
subject to the provisions of subsection (a) of this section, in
the annual appropriations act or supplements thereto or in
appropriations of bond moneys or other designated sources of
funding. A rule or order subject to subsection (a) of this
section shall be funded in the annual appropriations act or
supplements thereto, or in appropriations of bond moneys or other
designated sources of funding.
(c) The provisions of subsection (a) of this section do not
apply to any new or expanded program or service that:
(1) Is required or arises from a court order or judgment;
(2) Is provided at the option of the county, municipality or
county board of education under a law, rule or order that is
permissive rather than mandatory;
(3) Is required by private, special or local laws; or
(4) Is required by or arises from an executive order of the
governor exercising his emergency powers.
(d) The provisions of subsection (a) of this section do not
apply when a law requiring a county, municipality or county board
of education to perform or administer a new or expanded program
or service is enacted without requesting an appropriation
pursuant to subsection (b) of this section if the bill resulting
in the enactment of the law passes the Legislature by a
four-fifths vote of all the members of each house.
§4-13-4. Office of local mandates.
(a) There is established within the finance division of the
department of administration an office of local mandates, which
shall have as its primary function the review of proposed and
adopted laws, rules and orders for the purpose of completing a
local impact statement. A local impact statement shall contain
a fiscal analysis of the net additional costs to a county,
municipality or county board of education that will result from
any new or expanded program or service that the county,
municipality or county board of education would be required to
perform or administer as a result of the proposed or adopted law,
rule or order.
(b) The finance division shall appoint and employ all
persons, including accountants, attorneys, auditors, financial
analysts, management, purchasing and personnel analysts, and any
other individuals with experience in local government operations, and such clerical and technical assistants whom the office may
require within the limits of available appropriations.
§4-13-5. Mandate review requirements.
(a) Whenever any bill, which could possibly incur an
increase in costs, is introduced into either house of the
Legislature, and that bill receives first reading pursuant to the
rules of the house into which it is introduced, the bill shall be
immediately reviewed by the legislative manager. If upon review
the legislative manager determines that the bill will not result
in net additional costs if the bill is enacted, the legislative
manager shall certify that determination, on a statement signed
by him or her and filed in his or her office. If the legislative
manager determines that the bill may result in net additional
costs if enacted, he or she shall immediately forward notice to
the bill's sponsor(s) and the chairman of the committee, if any,
to which the bill has been referred or to the presiding officer
of the house in which the bill originated if no such reference
was made, that, in his or her judgment, a local impact statement
is required. The legislative manager shall also forward a
notice to the office of local mandates that such a bill has been
introduced and that a local impact statement is required.
(b) Upon receipt of a notice from the legislative manager
that a bill has been introduced in the Legislature that may
result in net additional costs to a county, municipality or
county board of education, the office shall complete as soon as possible, but within five days of notification, a local impact
statement containing the most accurate estimate possible, in
actual dollars, of the net additional costs, if any, that will be
required of a county, municipality or county board of education
to perform or administer a new or expanded program or service.
Local impact statements completed pursuant to this subsection
shall be forthwith delivered to the governor and the presiding
officer of both houses of the Legislature.
(c) Whenever any state administrative or executive rule or
order is proposed or adopted, the state department head or state
officer issuing the rule or order, and the secretary of state, as
custodian of the rule or order, shall forthwith forward a copy of
the proposed or adopted rule or order to the office of local
mandates with a notice to complete a local impact statement
within thirty days of the proposal or adoption.
(d) Upon receipt of a notice from the secretary of state, a
state department head, a state officer or the governor of the
proposal or adoption of an executive or administrative rule or
order by that official, the office shall complete as soon as
possible, but within thirty days of notification, a local impact
statement containing the most accurate estimate possible, in
actual dollars, of the net additional costs, if any, that will be
required of a county, municipality or county board of education
to perform or administer a new or expanded program or service.
Local impact statements completed pursuant to this subsection shall be forthwith delivered to the governor and the presiding
officer or both houses of the Legislature, together with a copy
of the rule or order.
(e) The office shall conduct an annual review of all pending
legislative bills and laws, rules and orders enacted or adopted
after the effective date of this article, for which the office
has previously completed a local impact statement. Any annual
change in the dollar estimate of the net additional costs from
that provided in the original local impact statement shall be
updated as a result of the review to disclose that change, and
the updated local impact statement shall be delivered to the
recipients of the original local impact statement.
§4-13-6. Notification of local impact statement.
A bill for which a local impact statement is required shall
not proceed from second to third reading in the house of origin
until the completed local impact statement is received by the
presiding officer of that house. The presiding officer shall
cause notice of the receipt of each local impact statement to be
entered on the journal of that house.
§4-13-7. Appropriations request.
Except as otherwise provided in subsection (d) of section
four of this article, a bill for which a local impact statement
has been received pursuant to section six of this article shall
not receive passage in either house until it contains therein an
appropriation request at least equal in amount to the amount estimated in the local impact statement as necessary to pay in
full any net additional costs of compliance therewith.
§4-13-8. Local government mandates appeal board.
There is established the local government mandates appeal
board. The membership of the board shall consist of thirteen
voting members as follows: Two to be appointed from the
membership of each house of the Legislature to be appointed by
the presiding officer of each house; two elected county officials
to be appointed by the governor; two elected municipal officials
to be appointed by the governor; two elected members of county
boards of education to be appointed by the governor; the state
treasurer, ex officio, or the designee thereof and two members at
large, to be appointed by the governor. Within each category of
appointed members, the appointees shall be from different
political parties. The legislative members shall serve during
the two-year legislative session during which the appointment is
made. The elected county and municipal officials and county
board of education members shall serve as members during the
terms of their elected office during which their appointments are
made. Other members shall serve during the duration of the term
of the governor who appointed them. The governor and the
presiding officers of both houses of the Legislature shall, in
making their appointments, consult together to the extent
necessary to ensure that among the appointed membership, there is
not more than one member appointed as a local elected official or legislator representing the same local units of government within
their election districts. A vacancy occurring in the membership
of the board for any cause, other than the expiration of a term
of office, shall be filled in the same manner as the original
appointment.
§4-13-9. Board organization.
The board shall organize as soon as practicable following
the appointment of its members and shall elect from among its
members a chairman and vice chairman and shall appoint a
secretary who need not be a member of the board. The board shall
employ such assistants as it may deem necessary to carry out its
duties and shall determine their qualifications, terms of office
and compensation. All expenditures deemed necessary to implement
and effectuate the duties of the board under this article shall
be made within the limits of appropriations according to law.
§4-13-10. Compensation.
Members of the board shall not receive compensation for the
services except that they shall be reimbursed for expenses such
as travel, communication and clerical expenses, as determined by
the secretary of the board and in accordance with state law
regarding reimbursable expenses of state employees.
§4-13-11. Subpoena power.
The board, through its chairman or secretary, may issue
subpoenas and compel the attendance of witnesses to testify
before the board and to produce relevant books, records and papers before it. The board may administer oaths in taking
testimony in any matter pertaining to its duties under this
article, including, without limitation, any appeal proceeding
authorized or required to be held under this article. Subpoenas
shall be issued under the seal of the board and shall be served
in the same manner as subpoenas issued out of the circuit court.
§4-13-12. Quorum, board powers.
The powers of the board are vested in the members thereof in
office from time to time, and a majority of its members shall
constitute a quorum for any act thereof. Actions may be taken
and orders may be adopted by the board by a vote of a majority of
its authorized members unless the rules of the board require a
larger number. No vacancy in the membership of the board impairs
the right of a quorum to exercise all the rights and perform all
the duties of the board.
§4-13-13. Board duties.
(a) It is the duty of the board to hear and rule upon
appeals brought by one or more counties, municipalities or county
boards of education, alleging that a state law, rule or order,
which has the effect of requiring the performance or
administration of a new or expanded program or service:
(1) Has been enacted or promulgated, as the case may be, in
a manner contrary to the provisions of this article; or
(2) Has been lawfully enacted or promulgated, but has been
based on a demonstrably inaccurate cost estimate contained in a local impact statement prepared by the office of local mandates
resulting, therefore, in the failure by the state to provide
sufficient funding to pay the net additional cost of compliance
with the law, regulation, rule or order.
(b) A party appearing before the board or otherwise joined
in an action before the board shall submit such evidence and
documentation as the board may require in order to make a
determination under this section.
(c) If the board, based on the evidence before it, rules in
favor of the appellant county, municipality or county board of
education or counties, municipalities or county boards of
education, it shall submit its findings and rulings to the
governor and the presiding officers of both houses of the
Legislature, along with its determination that legislation is
required to be enacted containing an appropriation of moneys
sufficient to pay for any net additional costs which it
determines remain unfunded. Pending the appropriation of such
moneys, the board shall declare the contested law, rule or order
inoperative upon all counties, municipalities or county boards of
education determined by the board to be similarly affected by the
application of the law, rule or order.
§4-13-14. Board determination.
A determination by the board pursuant to the provisions of
section thirteen of this article that an appropriation of moneys
is required or that a state law, rule or order is inoperative, or both, shall be appealable by the Legislature, or the presiding
officer of either house thereof, to the circuit court. A
determination by the board denying an appeal by a county,
municipality or county board of education shall be final and not
reviewable by any court.
§4-13-15. Board rules.
The board shall adopt rules as may be required to carry out
its functions and responsibilities under this article.
NOTE: The purpose of this bill is to create the State
Payment for State Mandates Act. It applies in those situations
when state government mandates certain actions by counties,
municipalities or county boards of education which require
expenditures. When a county, municipality or county board of
education is required to incur expenditures without the tax
resources to do so, the state is required to provide full funding
for additional costs to the local governments.
Article 13 is new; therefore, strike-throughs and
underscoring have been omitted.