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.