H. B. 2152
(By Delegates Walters, Evans, Henderson, Seacrist,
H. White, Damron and Webb)
[Introduced February 18, 1997; referred to the
Committee on Government Organization then Finance.]
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:
(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 the 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 full funding be
provided 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 nine 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; minimum
fiscal impact amounts established; exceptions.
(a) Notwithstanding any law, rule or order to the contrary,
a law, rule or order passed, promulgated or issued on or after
the effective date of this article 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) 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.
(c) 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 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 established; duties; personnel
to be employed.
(a) There is established within the finance division of the
department of administration an office of local mandates, which
shall have the duty to review 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
personnel necessary to perform the duties of the office.
(c) Funding for the office shall be made by appropriation
from the Legislature under a separate account.
§4-13-5. Mandate review requirements for proposed legislation;
review by legislative manager; referral to office of
local mandates; delivery of impact statement to the legislative houses; advancement of bill barred until
completion of impact statement.
(a) Upon introduction and first reading in either house of
the Legislature of a bill which could cause an increase in costs
to a county, county board of education or municipality pursuant
to this article, that bill shall be reviewed by the legislative
manager. The legislative manager will review the bill to
determine the necessity of a local impact statement.
If the legislative manager determines that the bill would
not result in net additional costs if the bill is enacted, the
legislative manager shall certify that determination in a signed
statement which is filed in the office of the legislative
manager.
If the legislative manager determines that the bill may
result in net additional costs, notice of the determination shall be forwarded to the bill's sponsor or sponsors, the chairman of
the committee to which the bill has been referred, and to the
office of local mandates.
(b) Within five days of the notification, the office of
local mandates shall complete a local impact statement containing
an estimate in actual dollars of the net additional costs 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 delivered to the governor and the presiding
officer of each house of the Legislature.
A bill for which a local impact statement is required shall
not advance 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.
§4-13-6. Appropriations request.
A bill for which a local impact statement has been received
pursuant to section five of this article and which is determined
to have a fiscal impact on the affected county, municipality or
county board of education shall not receive passage in either house until it contains therein an appropriation request at least
equal in amount to that estimated in the local impact statement
as necessary to pay in full any net additional costs of
compliance therewith: Provided, That the appropriation
requirement may be rendered void should the bill pass both houses
of the Legislature pursuant to the requirements of subsection
(c), section three of this article.
§4-13-7. Mandate review requirements for proposed rules or
orders; referral to office of local mandates.
(a) Upon promulgation of an administrative or executive rule
or order, the department head or officer issuing the rule or
order, shall forward a copy of the rule or order to the office of
local mandates.
(b) Within thirty days of notification, the office of local
mandates shall complete a local impact statement containing an
estimate, in actual dollars, of the net additional costs that
will be required of a county, municipality or county board of
education to perform or administer a new or expanded program or
service. Completed local impact statements, together with a copy
of the rule or order, shall be delivered to the governor and the
presiding officer of each house of the Legislature.
§4-13-8. Annual review of local impact statements required.
The office of local mandates shall conduct an annual review
of all 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.
Updated local impact statements shall be delivered to the
recipients of the original local impact statements.
§4-13-9. Local government mandates appeal board; duties.
There is established the local government mandates appeal
board. The board shall 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 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 in the failure by the state to provide sufficient funding to pay the net additional cost of compliance with the
law, rule or order.
§4-13-10. Board membership; organization; quorum; board
powers.
The membership of the board shall consist of thirteen voting
members as follows: Two 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. In making their appointments, the governor and
the presiding officer of each house of the Legislature shall consult together to the extent necessary to ensure that not more
than one member appointed as a local elected official or
legislator represents the same local unit of government within
the election district. 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.
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 may
impair the right of a quorum to exercise all the rights and
perform all the duties of the board.
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 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.
Members of the board may not receive compensation for their
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; administration of oaths; evidence
gathering; rulings by the board; submission of rulings to governor and Legislature; declaration of law as inoperative pending legislative appropriation of additional moneys.
(a) 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. 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.
(b) 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.
(c) A party appearing before the board or otherwise joined
in an action before the board shall submit evidence and
documentation as the board may require in order to make a
determination under this section.
(d) If the board 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 officer of
each house of the Legislature, along with its determination that
legislation is required containing an appropriation of moneys
sufficient to pay for net additional costs which it determines
remain unfunded. Pending the appropriation of the 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.
§4-13-12. Board determinations appealable in certain cases.
A determination by the board pursuant to the provisions of
section eleven of this article that an appropriation of moneys is
required and that a state law, rule or order is inoperative 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.
§4-13-13. Board may adopt necessary 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.
This article is new; therefore, strike-throughs and
underscoring have been omitted.