H. B. 4606


(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[By Request of the Executive]

[Introduced February 22, 2000; referred to the

Committee on Government Organization then Finance.]




A BILL to repeal article five-b, chapter twenty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend chapter twenty-five of said code by adding thereto a new article, designated article seven, relating to the manufacture and production of goods by inmates for sale to government offices and agencies; creating the Correctional Industries Act of 2000; establishing industries at correctional facilities; mandatory purchasing requirement; exceptions; catalogues of products and articles; order of distribution; director of correctional industries; plant superintendent; powers of commissioner of corrections; possible legislative appropriation; contracts and financing; correctional industries account; prohibition or sales of goods in open market; exceptions; penalties; and severability.

Be it enacted by the Legislature of West Virginia:
That article five-b, chapter twenty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that chapter twenty-five of said code be amended by adding thereto a new article, designated article seven, to read as follows:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2000.
§25-7-1. Intent of article.
Whereas, the means now provided for the employment of inmate labor are inadequate to furnish a sufficient number of inmates with employment, it is hereby declared to be the intent of this article:
(a) To further provide more adequate, regular and suitable employment for the inmates of this state, consistent with proper correctional purposes;
(b) To further utilize the labor of inmates for self-maintenance and for reimbursing this state for expenses incurred by reason of their crimes and imprisonment;
(c) To effect the requisitioning and disbursement of prison-made products directly through established state authorities with no possibility of private profits therefrom.
§25-7-2. Citation of article.
This article may be cited as the "Correctional Industries Act of 2000."
§25-7-3. Establishment of correctional industries; purpose and intent.
The commissioner of corrections is hereby authorized to: (1) Purchase in the manner provided by law, equipment, raw materials and supplies; (2) engage supervisory personnel; and (3) establish and maintain, at its correctional facilities, industries for the utilization of services of inmates in the manufacture or production of articles or products that may be needed for the construction, operation, maintenance or use of any office, department, institution or agency supported in whole or in part by this state and the political subdivision thereof.
§25-7-4. Purchase of inmate-made goods by state agencies and political subdivisions.
(a) On and after the effective date of this article in the regular session of the Legislature in the year two thousand, all offices, departments, institutions, agencies of this state, which are supported in whole or in part by state funds, shall purchase all of the articles or products required by them from the commissioner of corrections if those articles or products are produced or manufactured by correctional industries, as provided for by this article. No state office, department, institution, or agency within the state may purchase any article or product that is produced by correctional industries from any other source, unless specifically excepted from the provisions of this article or otherwise by law.
(b) All purchases of correctional industries articles or products by state offices, department, institutions, agencies and political subdivisions shall be made upon requisition by the proper authority of the office, department, institution, agency or political subdivision of requiring such articles or products.
(c) Political subdivisions of this state and other states, and government offices of any state may purchase from the commissioner of corrections articles or products required for their offices and made by correctional industries.
§25-7-5. Exceptions as to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section four of this article may be made in any case where, in the opinion of the secretary of the department of administration: (1) The article, articles, product or products manufactured or produced by correctional industries do not meet the reasonable requirements of the requesting state office, department, institution, agency or political subdivision; or (2) the requisition cannot be filled because of insufficient supply or other reason. No state office, department, institution, agency, or political subdivision may evade the intent and meaning of this section by requesting unreasonable deadlines or slight variations from standards adopted by the commissioner of corrections when the articles or products are reasonably adapted to the actual needs of the office, department, institution, agency, or political subdivision.
§25-7-6. Auditor bound by voucher or warrant; intentional violation of article; penalty.

No voucher, certificate, or warrant issued on the state auditor by any state office, department, institution, or agency may be questioned by the auditor or by the state treasurer on the grounds that the office, department, institution, or agency has failed to comply with the provisions of this article, but if a state office, department, institution, or agency continues to intentionally violate the provisions of this article, after notice from the governor to desist, such action constitutes malfeasance in office and the person or persons responsible for the violation are subject to suspension or removal from office.
§25-7-7. Catalogues of articles and products made and produced.
The commissioner of corrections shall: (i) Cause to be prepared, annually, at times he or she determines, catalogues containing a description of all articles and products manufactured or produced pursuant to the provisions of this article; (ii) send copies of such catalogue to all offices, departments, institutions and agencies of this state; and (iii) make the same accessible to all political subdivisions of this state. At least thirty days before the commencement of each fiscal year, the proper official of each such office, department, institution, or agency, shall report to the commissioner of corrections estimates for such fiscal year of the kind and amount of articles and products reasonably required for the ensuring year, referring to the catalogue issued by the commissioner of corrections insofar as the requested articles and products are included in the catalogue.
§25-7-8. Order of distribution of articles and products.
The articles and products manufactured or produced by correctional industries in accordance with the provisions of this article shall be devoted, first, to fulfilling the requirements of the offices, departments, institutions and agencies which are supported, in whole or in part, by this state and, secondly, to supply the political subdivisions of this state.
§25-7-9. Director of correctional industries; pricing; purchasing;
annual statements.
The commissioner of corrections shall appoint a director of correctional industries.
The director of correctional industries shall determine the prices at which all articles or products manufactured or produced by correctional industries are furnished. Prices shall be uniform and nondiscriminating to all, and shall be as near the usual market price for those articles or products as is practicable. The director of correctional industries shall also purchase supplies, services and equipment for correctional industries in accordance with the rules established by the department of administration.
Further, the director of correctional industries shall annually produce detailed financial reports in accordance with generally accepted accounting principles at the close of each fiscal year on the financial position of the correctional industries operation. The director of correctional industries shall verify such reports within thirty days after the end of such last preceding year.
§25-7-10. Plant superintendent; semi-annual estimate of needs.
The commissioner of corrections shall appoint a plant superintendent for the correctional industries program at each state production facility. Each plant superintendent shall semi-annually make an estimate and detailed statement of all materials, machinery, fixtures, tools or other appurtenances or accommodations, and the cost thereof, which will in his or her judgment be necessary for carrying on the activities authorized by this article at that production facility for the next ensuring year, or which in his or her judgment should be contracted for during the ensuring year. Every estimate shall be forwarded to the director of correctional industries for consideration and proper action relative thereto, at least forty-five days before the beginning of that ensuing six-month period.
§25-7-11. Powers of the commissioner of corrections.
The commissioner of corrections has those powers that are necessary to implement the provisions of this article to provide for the administration and procedure necessary for such implementation. To this end, the commissioner is authorized to cause to be purchased raw materials, supplies, services and equipment necessary for the production and timely delivery of articles and products produced by correctional industries. The commissioner shall develop policies and procedures to ensure that purchases made for the benefit of correctional industries programs are, to the extent practicable, at the lowest possible price while ensuring quality of material and timely delivery thereof.
§25-7-12. Legislative appropriation for buildings, equipment,

etc.; contracts and financing.
In order to carry out the provisions of this article, the Legislature may appropriate moneys out of the state fund, general revenue, and, if so, the commissioner of corrections is authorized to expend such moneys from an appropriation as may be necessary to erect buildings; purchase equipment; procure tools, supplies and materials; purchase, install or replace equipment, employ personnel; and otherwise defray the necessary expenses incident to the employment of inmates as provided in this article. Further, to aid in these purposes, the commissioner of corrections is empowered to enter into contracts and agreements with any person or persons for the acquisition or purchase of equipment, tools, supplies and materials, through the department of administration in accordance with its contract and financing rules and procedures. The aggregate amount of such purchases or acquisitions shall not exceed five million dollars, such amounts to be payable solely out of the revenues derived from the activities authorized by this article. Nothing in this section shall be so construed or interpreted as to authorize or permit the incurring of a state debt of any kind or nature as contemplated by the constitution of this state.
§25-7-13. Correctional industries account.
All moneys collected by the commissioner of corrections from the sale or disposition of articles and products manufactured or produced by inmate labor in accordance with the provisions of this article, shall be forthwith deposited with the state treasurer to be kept and maintained as a special revolving account designated the "correctional industries account" and such moneys so collected and deposited shall be used primarily for the purchase of manufacturing supplies, equipment, machinery, materials, and operational costs related to the purposes of this article, as well as for the payment of the necessary personnel in charge thereof. It shall be the responsibility of the warden to supply the correctional industries programs, within each correctional facility, an inmate labor pool, security, space and utilities. The director of correctional industries shall provide to the commissioner of corrections, not later than July thirtieth of each year, a profit and loss financial statement for its operation of the prior fiscal year, July first through June thirtieth. The correctional industries account shall never be maintained in excess of the amount necessary to efficiently and properly carry out the intentions of this article, and in no event may the correctional industries account be maintained in excess of one million dollars. Profits above the amount necessary to efficiently and properly carry out the intention of this article as determined by the commissioner of corrections shall be deposited into a special revenue account to be appropriated by the Legislature for the purposes of offsetting operational costs at the division of corrections and or building, equipment, land costs or to offset any plan for salary advancement for all correctional employees and to otherwise defray the necessary expenses incident thereto, all of which are under the direction and subject to the approval of the commissioner of corrections.
§25-7-14. Sale of prison-made goods in open market prohibited; penalty; exceptions.
(a) Subject to the provisions of subsections (b) and (c) of this section, it is unlawful to sell or offer for sale on the open market any articles or products manufactured or produced wholly by inmates of this state, or any other state, except inmates or prisoners on parole or probation. This provision does not apply to the sale of products made with waste tires: Provided, That any use of waste tires shall comply with applicable laws and rules of the division of highways and division of environmental protection: Provided, however, That any products made by inmates from waste tires and sold on the open market, pursuant to a contract with the division of highways, must be competitively priced with privately produced goods of the same nature in the state of West Virginia and may not be sold at a loss: Provided further, That any profits earned from the sale of products made by inmates from waste tires shall be distributed to the correctional industries fund to reimburse all moneys expended in the collection of waste tires and the production of waste tire products, including a reasonable amount to be set aside for the periodic replacement of outdated, obsolete or inoperable machinery or equipment used in collection or production.
(b) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars nor more than five thousand dollars, or by imprisonment in a state correctional facility not less than three months nor more than one year, or by both fine and imprisonment. Each sale or offer for sale shall constitute a separate offense under this section.
(c) Notwithstanding the provisions of subsection (a) of this section, any articles or products manufactured or produced, wholly or in part, by inmates of West Virginia correctional facilities which are designed and intended to be used solely by blind and handicapped persons, including, but not limited to, braille books and reading materials, may be sold or offered for sale or distributed on the open market by the division of corrections, other state department or agency.
(d) Notwithstanding the provisions of subsection (a) of this section, arts and crafts produced by inmates may be sold to the general public by the division of corrections or by other agencies or departments of state government as the commissioner of corrections may designate. The arts and crafts may be sold only on a consignment basis so that inmates whose arts and crafts products are sold shall receive payment for the products. The payments shall be deposited in the accounts or funds and managed in a manner as provided by section six, article five of this chapter: Provided, That where the division of corrections or any other agency or department of state government provides any materials used in the production of an arts and crafts product, the fair market value of the materials may be deducted from the account of the individual inmate after the sale of the product. For
purposes of this section, "arts and crafts" means articles produced individually by artistic or craft skill such as, but not limited to, painting, sculpture, pottery and jewelry.
§25-7-15. Penalties.
Any person who willfully violates any of the provisions of this article, except for section fifteen is guilty of a misdemeanor and, upon conviction, shall be confined in a regional or county jail for not less than ten days nor more than one year, or fined not less than ten dollars nor more than five hundred dollars, or both, in the discretion of the court.
§25-7-16. Provisions of act severable.
If any section, subsection, provision or sentence of this act or the application thereof to any person, or any circumstance, is held invalid, the remainder of the act and the application of any such section, subsection, provision or sentence to other persons or circumstances is not affected thereby.
§25-7-17. Inconsistent acts repealed.
All acts and parts of acts inconsistent with this article are hereby repealed; however, this article is to be considered as supplementary, or in addition to other provisions of law now existing relative to the employment of inmates.



This is a new article; therefore, strike-throughs and underscoring are omitted.



FINANCE COMMITTEE AMENDMENT


 On page two, line one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof, the following:

"That sections thirteen, fourteen and fifteen, article five-b, chapter twenty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenact to read as follows:

ARTICLE 5B. PRISON-MADE GOODS.


§28-5B-13. Authority to expend appropriation for buildings and equipment and to sell products.


(a) In order to carry out the provisions of this article there is hereby appropriated out of the moneys in the state fund, general revenue, not otherwise appropriated, the sum of fifty thousand dollars, and the commissioner of the division of corrections is authorized to expend such moneys from such legislative appropriation as may be necessary to erect buildings, to purchase equipment, to procure tools, supplies and materials, to purchase, install or replace equipment, to employ personnel, and otherwise to defray the necessary expenses incident to the employment of convicts inmates as herein provided, and further to aid in the above purposes the commissioner of the division of corrections is empowered to enter into contracts and agreements with any person or persons upon a self-liquidating basis respecting the acquisition and purchase of any such equipment, tools, supplies and materials, to the end that the same may be paid for over a period of not exceeding three years, in accordance with other provisions of this code and rules of the department of administration. and the The aggregate amount of such purchases or acquisitions may not to exceed one five million dollars, such amounts to be payable solely out of the revenues derived from the activities authorized by this article. Nothing in this section shall may be so construed or interpreted as to authorize or permit the incurring of a state debt of any kind or nature as contemplated by the constitution of this state in relation to such debt.

(b) The commissioner of corrections is authorized to sell articles or products manufactured or produced at correctional facilities to government offices of this state and its political subdivisions and to government offices of other states and their political subdivisions.

§28-5B-14. Prison industries account.


All moneys collected by the commissioner of the division of corrections from the sale or disposition of articles and products manufactured or produced by convict labor at correctional facilities in accordance with the provisions of this article, shall be forthwith deposited with the state treasurer to be there kept and maintained as a special revolving account revenue fund, appropriated by the Legislature, designated the "prison industries account" and such the moneys so collected and deposited shall be used solely for the purchase of manufacturing supplies, equipment, machinery and materials used to carry out the purposes of this article, as well as for the payment of the necessary personnel in charge thereof the division of corrections and to otherwise defray the necessary expenses incident thereto, all of which are under the direction and subject to the approval of the commissioner: Provided, That the "prison industries account" shall never be maintained in excess of the amount necessary to efficiently and properly carry out the intentions of this article, and in no event may the "prison industries account" be maintained in excess of the sum of one five million dollars. When, in the opinion of the governor, the "prison industries account" has reached a sum in excess of the requirements of this article, the excess shall be transferred by the commissioner of the division of corrections to the state fund, general revenue, and if the governor does not make such determination, any excess above one five million dollars shall be transferred to the state fund, general revenue, by the commissioner of the division of corrections at the end of each fiscal year.

§28-5B-15. Sale of prison-made goods on open market prohibited; penalty; exceptions.


(a) Subject to the provisions of Except as provided for in section thirteen of this article and subsections (b) and (c), (d) and (e) of this section, it is unlawful to sell or offer for sale on the open market of this state any articles or products manufactured or produced, wholly or in part, in this or any other state, by convicts or prisoners of this state, or any other state, except convicts or prisoners on parole or probation. This provision does not apply to the sale of products made with waste tires: Provided, That any use of waste tires shall comply with applicable laws and rules of the division of environmental protection: Provided, however, That any products made by inmates from waste tires and sold on the open market must be competitively priced with privately produced goods of the same nature and may not be sold at a loss: Provided further, That any profits earned from the sale of products made by inmates from waste tires shall be distributed as follows: First, to the prison industries fund to reimburse all moneys expended in the collection of waste tires and the production of waste tire products, including a reasonable amount to be set aside for the periodic replacement of outdated, obsolete or inoperable machinery or equipment used in collection or production, and second, any moneys remaining shall be divided equally between the prison industries fund and the crime victims compensation fund established by the provisions of section two, article two-a, chapter fourteen of this code.

(b) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars nor more than five thousand dollars, or by imprisonment in jail not less than three months nor more than one year, or by both fine and imprisonment. Each sale or offer for sale shall constitute a separate offense under this section.

(c) Notwithstanding the provisions of subsection (a) of this section, any articles or products manufactured or produced, wholly or in part, by inmates of West Virginia penal and correctional institutions and facilities which are designed and intended to be used solely by blind and handicapped persons, including, but not limited to, braille books and reading materials, may be sold or offered for sale or distributed on the open market by the department of corrections or other state department or agency.

(d) Notwithstanding the provisions of subsection (a) of this section, arts and crafts produced by inmates may be sold to the general public by the department of corrections or by other agencies or departments of state government as the commissioner of corrections may designate. The arts and crafts shall be sold only on a consignment basis so that inmates whose arts and crafts products are sold shall receive payment for the products. The payments shall be deposited in the accounts or funds and managed in a manner as provided by section six, article five of this chapter: Provided, That where the state department of corrections or any other agency or department of state government provides any materials used in the production of an arts and crafts product, the fair market value of the materials may be deducted from the account of the individual inmate after the sale of the product. For purposes of this subsection, "arts and crafts" means articles produced individually by artistic or craft skill including, but not limited to, painting, sculpture, pottery and jewelry.

(e) For purposes of this section, "arts and crafts" means articles produced individually by artistic or craft skill such as, but not limited to, painting, sculpture, pottery and jewelry.

Notwithstanding the provisions of subsection (a) of this section, any article or product manufactured or produced, wholly or in part, by prisoners of West Virginia correctional institutions and facilities that are made with waste tires may be sold or offered for sale or distribution on the open market by the division of corrections. The use of waste tires in this manner shall comply with applicable laws and rules of the division of environmental protection. Any products made pursuant to this provision and sold on the open market must be competitively priced with privately produced goods of the same nature and may not be sold at a loss. Any profits earned from the sale of products produced from waste tires shall be distributed as follows: First, to the prison industries fund to reimburse all moneys expended in the collection of waste tires and the production of waste tire products, including a reasonable amount to be set aside for the periodic replacement of outdated, obsolete or inoperable machinery or equipment used in collection or production, and second, any remaining moneys shall be divided equally between the (1) prison industries fund, and (2) the department of corrections: Provided, That the department use any moneys received pursuant to this program for the operation of correctional facilities.


FINANCE COMMITTEE TITLE AMENDMENT


H. B. 4606 -- "A BILL to amend and reenact sections thirteen, fourteen and fifteen, article five-b, chapter twenty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to prison-made goods; increasing the aggregate amount of purchases or acquisitions by the division of corrections; authorizing the sale of prison-made goods to government offices in other states; allowing for payment of salaries from the prison industries account; increasing the amount which may be maintained in the prison industries account; distributing the profit from specific prison-made goods, and requiring that a certain amount of the profit from waste tire products be directed to the division of corrections facilities rather than the crime victims' compensation fund ."