__________*__________
Wednesday, March 10, 2004
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Tuesday, March 9, 2004, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 65, Urging the United States Corps of Engineers and the West Virginia
Conservation Agency to address the issue of flooding in Wyoming County by dredging all flood
prone waterways,
H. C. R. 72, Conducting a study to determine the ability and feasibility of the sheriff's
department to supervise home incarceration of convicted offenders,
H. C. R. 77, Directing the Joint Committee on Government and Finance to make a study on
the instructional term of the school year,
H. C. R. 78, Determining the effects of exempting property belonging to or leased to a
corporation that is used to provide independent, assisted living services and other health related
services for elderly residents,
H. R. 13, Commending and congratulating Ron Batson of Marion County, West Virginia's
Outstanding Tree Farmer for 2004,
H. R. 18, Proclaiming February as National Children's Dental Health Month,
S. C. R. 34, Designating Cass Scenic Railroad State Park's Shay No. 5 steam locomotive as
official state steam locomotive and 2005 "Year of the Shay No. 5",
And,
S. C. R. 68, Requesting Joint Committee on Government and Finance study grievance boards
and administrative law judge systems,
And reports the same back with the recommendation that they each be adopted.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 444, Requiring county litter control officers to enforce litter laws,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (S. B. 444) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 163, Establishing Water Resources Protection Act,
And,
Com. Sub. for S. B. 616, Relating to environmental protection advisory council,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor,
advising that on March 9, 2004, he approved H. B. 4011, Com. Sub. for H. B. 4022, H. B. 4132 and
S. B. 524.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 3096, Authorizing cooperation of campus police and rangers employed
by the Hatfield-McCoy regional recreation authority with other law-enforcement agencies.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section three, line one, by striking out the words "In this article," and inserting
in lieu thereof the words "For purposes of this article only, and".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 461), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Boggs, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3096) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 4040, Relating to criteria for making decisions affecting the filling of vacancies if one
or more permanently employed instructional personnel apply for a classroom teaching position.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
" ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional personnel; seniority.
(a) A county board of education shall make decisions affecting the hiring of professional
personnel other than classroom teachers on the basis of the applicant with the highest qualifications.
(b) The county board shall make decisions affecting the hiring of new classroom teachers on
the basis of the applicant with the highest qualifications.
(c) In judging qualifications for hiring employees pursuant to subsections (a) and (b) of this
section, consideration shall be given to each of the following:
(1) Appropriate certification and/or licensure certification, licensure or both;
(2) Amount of experience relevant to the position; or, in the case of a classroom teaching
position, the amount of teaching experience in the subject area;
(3) The amount of course work and/or degree level course work, degree level or both in the
relevant field and degree level generally;
(4) Academic achievement;
(5) Relevant specialized training;
(6) Past performance evaluations conducted pursuant to section twelve, article two of this
chapter; and
(7) Other measures or indicators upon which the relative qualifications of the applicant may
fairly be judged.
(d) If one or more permanently employed instructional personnel apply for a classroom
teaching position and meet the standards set forth in the job posting, the county board of education
shall make decisions a decision affecting the filling of such positions the position on the basis of the
following criteria:
(1) Appropriate certification and/or licensure certification, licensure or both;
(2) Total amount of teaching experience;
(3) The existence of teaching experience in the required certification area;
(4) Degree level in the required certification area;
(5) Specialized training directly related to the performance of the job as stated in the job description;
(6) Receiving an overall rating of satisfactory in the previous two evaluations over the
previous two years conducted pursuant to section twelve, article two of this chapter; and
(7) Seniority.
(e) In filling positions pursuant to subsection (d) of this section, consideration shall be given
to each criterion with each criterion being given equal weight. If the applicant with the most
seniority is not selected for the position, upon the request of the applicant a written statement of
reasons shall be given to the applicant with suggestions for improving the applicant's qualifications.
(f) With the exception of guidance counselors, the The seniority of classroom teachers, as
defined in section one, article one of this chapter with the exception of guidance counselors shall be
determined on the basis of the length of time the employee has been employed as a regular full-time
certified and/or licensed professional educator by the county board of education and shall be granted
in all areas that the employee is certified and/or licensed certified, licensed or both.
(g) Upon completion of one hundred thirty-three days of employment in any one school year,
substitute teachers, except retired teachers and other retired professional educators employed as
substitutes, shall accrue seniority exclusively for the purpose of applying for employment as a
permanent, full-time professional employee. One hundred thirty-three days or more of said
employment shall be prorated and shall vest as a fraction of the school year worked by the
permanent, full-time teacher.
(h) Guidance counselors and all other professional employees, as defined in section one,
article one of this chapter, except classroom teachers, shall gain seniority in their nonteaching area
of professional employment on the basis of the length of time the employee has been employed by the county board of education in that area: Provided, That if an employee is certified as a classroom
teacher, the employee accrues classroom teaching seniority for the time that employee is employed
in another professional area. For the purposes of accruing seniority under this paragraph,
employment as principal, supervisor or central office administrator, as defined in section one, article
one of this chapter, shall be considered one area of employment.
(i) Employment for a full employment term shall equal one year of seniority, but no employee
may accrue more than one year of seniority during any given fiscal year. Employment for less than
the full employment term shall be prorated. A random selection system established by the employees
and approved by the board shall be used to determine the priority if two or more employees
accumulate identical seniority: Provided, That when two or more principals have accumulated
identical seniority, decisions on reductions in force shall be based on qualifications.
(j) Whenever a county board is required to reduce the number of professional personnel in
its employment, the employee with the least amount of seniority shall be properly notified and
released from employment pursuant to the provisions of section two, article two of this chapter. The
provisions of this subsection are subject to the following:
(1) All persons employed in a certification area to be reduced who are employed under a
temporary permit shall be properly notified and released before a fully certified employee in such
a position is subject to release;
(2) An employee subject to release shall be employed in any other professional position
where such the employee is certified and was previously employed or to any lateral area for which
such the employee is certified and/or licensed certified, licensed or both, if such the employee's
seniority is greater than the seniority of any other employee in that area of certification and/or licensure certification, licensure or both;
(3) If an employee subject to release holds certification and/or licensure certification,
licensure or both in more than one lateral area and if such the employee's seniority is greater than
the seniority of any other employee in one or more of those areas of certification and/or licensure
certification, licensure or both, the employee subject to release shall be employed in the professional
position held by the employee with the least seniority in any of those areas of certification and/or
licensure certification, licensure or both; and
(4) If, prior to the first day of August of the year a reduction in force is approved, the reason
for any particular reduction in force no longer exists as determined by the county board in its sole
and exclusive judgment, the board shall rescind the reduction in force or transfer and shall notify the
released employee in writing of his or her right to be restored to his or her position of employment.
Within five days of being so notified, the released employee shall notify the board, in writing, of his
or her intent to resume his or her position of employment or the right to be restored shall terminate.
Notwithstanding any other provision of this subdivision, if there is another employee on the preferred
recall list with proper certification and higher seniority, that person shall be placed in the position
restored as a result of the reduction in force being rescinded.
(k) For the purpose of this article, all positions which meet the definition of classroom teacher
as defined in section one, article one of this chapter shall be lateral positions. For all other
professional positions, the county board of education shall adopt a policy by the thirty-first day of
October, one thousand nine hundred ninety-three, and may modify said the policy thereafter as
necessary, which defines which positions shall be lateral positions. The board shall submit a copy
of its policy to the state board within thirty days of adoption or any modification, and the state board shall compile a report and submit same the report to the legislative oversight commission on
education accountability by the thirty-first day of December, one thousand nine hundred ninety-three,
and by such that date in any succeeding year in which any county board submits a modification of
its policy relating to lateral positions. In adopting such a the policy, the board shall give
consideration to the rank of each position in terms of title; nature of responsibilities; salary level;
certification and/or licensure certification, licensure or both; and days in the period of employment.
(l) After the fifth day prior to the beginning of the instructional term, no person employed and
assigned to a professional position may transfer to another professional position in the county during
that instructional term unless the person holding that position does not have valid certification. The
provisions of this subsection are subject to the following:
(1) The person may apply for any posted, vacant positions with the successful applicant
assuming the position at the beginning of the next instructional term;
(2) Professional personnel who have been on an approved leave of absence may fill these
vacancies upon their return from the approved leave of absence; and
(3) The county board, upon recommendation of the superintendent may fill a position before
the next instructional term when it is determined to be in the best interest of the students: Provided,
That the county superintendent shall notify the state board of each transfer of a person employed in
a professional position to another professional position after the fifth day prior to the beginning of
the instructional term. The Legislature finds that it is not in the best interest of the students
particularly in the elementary grades to have multiple teachers for any one grade level or course
during the instructional term. It is the intent of the Legislature that the filling of positions through
transfers of personnel from one professional position to another after the fifth day prior to the beginning of the instructional term should be kept to a minimum.
(m) All professional personnel whose seniority with the county board is insufficient to allow
their retention by the county board during a reduction in work force shall be placed upon a preferred
recall list. As to any professional position opening within the area where they had previously been
employed or to any lateral area for which they have certification and/or licensure certification,
licensure or both, the employee shall be recalled on the basis of seniority if no regular, full-time
professional personnel, or those returning from leaves of absence with greater seniority, are qualified,
apply for and accept such the position.
(n) Before position openings that are known or expected to extend for twenty consecutive
employment days or longer for professional personnel may be filled by the board, the board shall be
required to notify all qualified professional personnel on the preferred list and give them an
opportunity to apply, but failure to apply shall not cause the employee to forfeit any right to recall.
The notice shall be sent by certified mail to the last known address of the employee, and it shall be
the duty of each professional personnel to notify the board of continued availability annually, of any
change in address or of any change in certification and/or licensure certification, licensure or both.
(o) Openings in established, existing or newly created positions shall be processed as follows:
(1) Boards shall be required to post and date notices which shall be subject to the following:
(A) The notices shall be posted in conspicuous working places for all professional personnel
to observe for at least five working days;
(B) The notice shall be posted within twenty working days of the position openings and shall
include the job description;
(C) Any special criteria or skills that are required by the position shall be specifically stated in the job description and directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this section shall be written so as to ensure that
the largest possible pool of qualified applicants may apply; and
(E) Job postings may not require criteria which are not necessary for the successful
performance of the job and may not be written with the intent to favor a specific applicant;
(2) No vacancy shall be filled until after the five-day minimum posting period;
(3) If one or more applicants meets the qualifications listed in the job posting, the successful
applicant to fill the vacancy shall be selected by the board within thirty working days of the end of
the posting period;
(4) A position held by a certified and/or licensed teacher who is certified, licensed or both,
who has been issued a permit for full-time employment and is working toward certification in the
permit area shall not be subject to posting if the certificate is awarded within five years; and
(5) Nothing provided herein shall prevent the county board of education from eliminating a
position due to lack of need.
(p) Notwithstanding any other provision of the code to the contrary, where the total number
of classroom teaching positions in an elementary school does not increase from one school year to
the next, but there exists in that school a need to realign the number of teachers in one or more grade
levels, kindergarten through six, teachers at the school may be reassigned to grade levels for which
they are certified without that position being posted: Provided, That the employee and the county
board of education mutually agree to the reassignment.
(q) Reductions in classroom teaching positions in elementary schools shall be processed as
follows:
(1) When the total number of classroom teaching positions in an elementary school needs to
be reduced, the reduction shall be made on the basis of seniority with the least senior classroom
teacher being recommended for transfer; and
(2) When a specified grade level needs to be reduced and the least senior employee in the
school is not in that grade level, the least senior classroom teacher in the grade level that needs to
be reduced shall be reassigned to the position made vacant by the transfer of the least senior
classroom teacher in the school without that position being posted: Provided, That the employee is
certified and/or licensed certified, licensed or both and agrees to the reassignment.
(r) Any board failing to comply with the provisions of this article may be compelled to do so
by mandamus and shall be liable to any party prevailing against the board for court costs and
reasonable attorney fees as determined and established by the court. Further, employees denied
promotion or employment in violation of this section shall be awarded the job, pay and any
applicable benefits retroactive to the date of the violation and payable entirely from local funds.
Further, the board shall be liable to any party prevailing against the board for any court reporter costs
including copies of transcripts.
(s) The county board shall compile, update annually on the first day of July and make
available by electronic or other means to all employees a list of all professional personnel employed
by the county, their areas of certification and their seniority."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 462), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Boggs, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4040) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 463), and there were--yeas 96, nays
none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Boggs, Coleman, Schoen and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4040) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 4554, Relating to the rights, privileges and benefits of substitute service personnel
employed to fill vacancies created by leaves of absence.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section fifteen, line sixteen, following the word "employee", by inserting the
words "and is employed in the position for twenty or more working days".
On page three, section fifteen, line twenty-nine, following the word "or", by inserting the
word "the".
And,
On page six, section fifteen, line eighty-nine, by striking out the word "deemed" and inserting
in lieu thereof the word "considered".
And,
By amending the title of the bill to read as follows:
H. B. 4554 - "A Bill to amend and reenact §18A-4-15 of the code of West Virginia, 1931,
as amended, relating to the rights, privileges and benefits of substitute service personnel employed
to fill vacancies created by leaves of absence, workers' compensation and suspensions for more than
thirty working days; and considering certain bus operators to be employed in the same building or
working station."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 464), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Boggs and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4554) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 465), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Boggs and Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4554) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 4598, Restricting courts from requiring conditions on the out of home placement of
children inconsistent with existing licensing regulations.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-5. Limitation on out-of-home placement.
Before any child may be directed for placement in a particular facility or for services of a
child welfare agency licensed by the department, a court shall make inquiry into the bed space of the
facility available to accommodate additional children and the ability of the child welfare agency to
meet the particular needs of the child. A court shall not order the placement of a child in a particular
facility if it has reached its licensed capacity or order conditions on the placement of the child which
conflict with licensure regulations applicable to the facility promulgated pursuant to the provisions
of article two-b of this chapter and articles one-a, nine and seventeen, chapter twenty-seven of this
code. Further, a child welfare agency is not required to accept placement of a child at a particular facility if the facility remains at licensed capacity or is unable to meet the particular needs of the
child. A child welfare agency is not required to make special dispensation or accommodation,
reorganize existing child placement, or initiate early release of children in placement to reduce actual
occupancy at the facility."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 466), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Boggs and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4598) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Resolutions Introduced
Delegates Beane and Browning offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 79 - "Requesting the Joint Committee on Government and Finance to study the
operation and supervision of community corrections and home incarceration programs within the
various counties throughout the State of West Virginia."
Whereas, The Legislature has previously authorized the establishment and operation of local
community corrections programs within the various counties through the passage of the West
Virginia Community Corrections Act; and
Whereas, The operation of the community-based correctional programs are important to our
system of justice within the state and further, the proper supervision of persons sentenced to these
programs is a matter of public interest in those counties having already established these programs;
and
Whereas, The Legislature has previously authorized the establishment and operation of
home incarceration programs within the various counties through the passage of the Home
Incarceration Act; and
Whereas, At this time there is good reason to believe that there currently exists a wide
variety and diversity of program practices within the various counties through which the actual
operation, management and supervision of these community-based correctional programs are
currently being administered by differing authorities; therefore, be it
Resolved by the Legislature of West Virginia;
That the Joint Committee on Government and Finance is hereby requested to study the
current organization and operation of community corrections and home incarceration programs
within the various counties; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature in 2005 on its findings, conclusions and recommendations, together with
the drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Delegate Manchin (By Request) offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 80 - "Requesting the Division of Highways to name the new bridge, on State Route
73 south of Fairmont and just north of Boothsville in Marion County, the 'Andrew G. and Carmen
L. Hauge Bridge'."
Whereas, In 1918, one year old Andrew G. Hauge came to Fairmont, West Virginia with
his parents who started a business that through hard work held together during the depression. Just
prior to the great depression, his parents purchased property on Route 73 from the C. H. Jenkins Coal
Company. When his father passed away while Andrew G. Hauge was a young man, his mother ran
the business out of a building along Fairmont Avenue which even today contains the Hauge's name
on its stained glass front windows; and
Whereas, Andrew G. Hauge graduated from Ohio State University, obtained his pilots
license and in 1941 enlisted in the United States Air Force serving in the 51st fighter squadron in
India. While there, he met and eventually married a nurse named "Petty," who was serving in the
20th General Hospital after having worked as a scrub nurse in the operating room of the Mayo
Clinic. After the war, Lt. Col. Andrew G. Hauge and Carmen L. Hauge returned to Fairmont to the
property along Route 73. They raised twin sons, Allen "Fritz" Hauge and David "Haunz" Hauge.
Both sons attended Wooster College. Allen became an international consultant and David who also
attended the West Virginia University School of Medicine became a neurosurgeon; and
Whereas, In 1958, Andrew G. Hauge led the effort to establish the Tri-County Water
Association to help provide clean water to the residents along Route 73. He served as a member and president of the Marion County School Board. He also led an effort to form the Grant Public
Service District to provide a sewage system for Boothville and the surrounding area; and
Whereas, Andrew G. and Carmen L. Hauge have been members of the Grace Lutheran
Church in Fairmont and spent much of their lives operating Hauge's florist and greenhouse in
Fairmont and on Route 73 south of Fairmont; and
Whereas, Andrew G. and Carmen L. Hauge have given of themselves to their country, this
state, Marion County and especially Fairmont and they have persevered through hard work and
strength of character through the years setting an example of the highest ideals of family, service to
their community and their country for all West Virginians to appreciate; and
Whereas, It is fitting and just that this bridge beside their homeplace be named for these true
West Virginian's who have served this country in time of war, contributed to their community in
good times and bad times, and have gained the love and respect of all who know them; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the new bridge, on
State Route 73 south of Fairmont and just north of Boothsville in Marion County, the "Andrew G.
and Carmen L. Hauge Bridge"; and, be it
Further Resolved, That the Division of Highways provide and erect signs at either end of the
bridge displaying the name "Andrew G. and Carmen L. Hauge Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
copy of this resolution to the Secretary of the Department of Transportation and to Andrew G. and
Carmen L. Hauge.
Delegates Armstead, Walters and Webb (By Request) offered the following resolution, which
was read by its title and referred to the Committee on Rules:
H. C. R. 81 - "Requesting the Commissioner of the Division of Highways to name the
recently constructed bridge over Little Sandy Creek on Frame Road near Elkview, Kanawha County,
the 'Shaffer Bridge'."
Whereas, For approximately 70 years, members of the Shaffer family lived in the house
which was taken by construction of the new bridge; and
Whereas, For approximately 100 years, three generations of the Shaffer family have owned
the property adjoining the new bridge; and
Whereas, The late James and Ella Shafer first settled on this property in the early 1900's,
farming the land and raising five siblings; and
Whereas, James and Ella's son, the late Starling Shaffer (who changed the spelling of his
last name,) and his wife Irene, assumed ownership of the property in 1959 after James' death and
continued to live on the land and farm it until Starling's death; and
Whereas, Starling's sons, Bob and Larry Shaffer, assumed ownership of the property after
their father's passing in 1996 and both brothers have continued to maintain the land, and Larry and
his wife, Betty, have continued to reside on the land; and
Whereas, The Shaffer family's century of dedicated and loving stewardship of this land
should not go unnoticed and, indeed, should be commended; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the West Virginia Division of Highways to name the
recently constructed bridge over Little Sandy Creek on Frame Road near Elkview, Kanawha County, the "Shaffer Bridge"; and, be it
Further Resolved, That the Division of Highways cause an appropriate sign to be placed at
both ends of this bridge which designates the bridge as the "Shaffer Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this
resolution to the Commissioner of the Division of Highways and to Bob and Larry Shaffer.
Petitions
Delegate Susman presented a petition, signed by eighty-seven Raleigh County Schools
Transportation Department personnel, opposing any proposal to delay the purchase of new school
buses
; which was referred to the Committee on Finance.
Delegate Stemple presented a petition, signed by one hundred twenty-seven residents of
Calhoun County requesting the Department of Highways to upgrade Right Fork Daniels Run Road;
which was referred to the Committee on Roads and Transportation.
Delegate Stemple presented a petition signed by fifty-one residents of Calhoun County
requesting the Department of Highways to upgrade Liberty Hill Road; which was referred to the
Committee on Roads and Transportation.
Delegate Stemple presented a petition signed by twelve residents of Calhoun County
requesting the Department of Highways to upgrade County Route 16/35; which was referred to the
Committee on Roads and Transportation.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 100, Prohibiting state and political subdivisions from contracting with vendors owing debt,
Com. Sub. for S. B. 181, Permitting retired state police to carry concealed weapon for life,
S. B. 469, Continuing interstate commission on uniform state laws,
S. B. 470, Continuing real estate appraiser licensing and certification board,
S. B. 506, Permitting use of "bank" in name of licensed insurance company,
And,
S. B. 576, Continuing state rail authority.
On the passage of the bills, the yeas and nays were taken (Roll No. 467), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Boggs and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (S. B. 100, Com. Sub. for S. B. 181, S. B. 469, S. B. 470, S. B. 506 and S. B. 576)
passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence on those requiring the same.
Second Reading
The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed
with him for the removal of bills from the Consent Calendar to the House Calendar:
S. B. 575 and S. B. 578, on second reading, Consent Calendar, to the House Calendar, by
Delegate Trump.
S. B. 160, Extending time to appropriate money from public employees insurance agency
reserve fund to bureau of medical services; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 420, Relating generally to motor fuels excise tax; on second reading,
coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, laid
over one day.
S. B. 517, Relating to standard nonforfeiture law for individual deferred annuities; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported
by the Clerk and adopted, amending the bill on page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
"That §33-7-9 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and §33-13-30a of said code be amended and reenacted, all to read as follows:
ARTICLE 7. ASSETS AND LIABILITIES
§33-7-9. Standard valuation law.
(a) Title. -- This section shall be known as the standard valuation law.
(b) Reserve valuation. -- The commissioner shall annually value, or cause to be valued, the
reserve liabilities (hereinafter called reserves) for all outstanding life insurance policies and annuity
and pure endowment contracts of every life insurance company doing business in this state and may
certify the amount of any such the reserves specifying the mortality table or tables, rate or rates of
interest and methods (net level premium method or other) used in the calculation of such the
reserves. In calculating such the reserves, he or she may use group methods and approximate
averages for fractions of a year or otherwise. In lieu of the valuation of the reserves herein required
of any foreign or alien company, he or she may accept any valuation made, or caused to be made, by the insurance supervisory official of any state or other jurisdiction when such the valuation
complies with the minimum standard herein provided and if the official of such the state or
jurisdiction accepts as sufficient and for all valid legal purposes the certificate of valuation of the
commissioner when such the certificate states the valuation to have been made in a specified manner
according to which the aggregate reserves would be at least as large as if they had been computed
in the manner prescribed by the law of that state or jurisdiction.
(c) Actuarial opinion of reserves. -- This subsection shall become operative on the first day
of January, one thousand nine hundred ninety-six.
(1) General. -- Every life insurance company doing business in this state shall annually
submit the opinion of a qualified actuary as to whether the reserves and related actuarial items held
in support of the policies and contracts specified by the commissioner by regulation are computed
appropriately, are based on assumptions which satisfy contractual provisions, are consistent with
prior reported amounts and comply with applicable laws of this state. The commissioner by
regulation shall define the specifics of this opinion and add any other item considered to be necessary
to its scope.
(2) Actuarial analysis of reserves and assets supporting such the reserves. -
(A) Every life insurance company, except as exempted by or pursuant to regulation, shall also
annually include in the opinion required by subdivision (1) of this subsection an opinion of the same
qualified actuary as to whether the reserves and related actuarial items held in support of the policies
and contracts specified by the commissioner by regulation, when considered in light of the assets
held by the company with respect to the reserves and related actuarial items, including, but not
limited to, the investment earnings on the assets and the considerations anticipated to be received and retained under the policies and contracts, make adequate provision for the company's obligations
under the policies and contracts, including, but not limited to, the benefits under and expenses
associated with the policies and
contracts.
(B) The commissioner may provide by regulation for a transition period for establishing any
higher reserves which the qualified actuary may consider necessary in order to render the opinion
required by this subsection.
(3) Requirement for opinion under subdivision (2). -- Each opinion required by subdivision
(2) of this subsection shall be governed by the following provisions:
(A) A memorandum in form and substance acceptable to the commissioner as specified by
regulation shall be prepared to support each actuarial opinion.
(B) If the insurance company fails to provide a supporting memorandum at the request of the
commissioner within a period specified by regulation or the commissioner determines that the
supporting memorandum provided by the insurance company fails to meet the standards prescribed
by the regulations or is otherwise unacceptable to the commissioner, the commissioner may engage
a qualified actuary at the expense of the company to review the opinion and the basis for the opinion
and prepare such supporting memorandum as is required by the commissioner.
(4) Requirement for all opinions. -- Every opinion shall be governed by the following
provisions:
(A) The opinion shall be submitted with the annual statement reflecting the valuation of such
reserve liabilities for each year ending on or after the thirty-first day of December, one thousand nine
hundred ninety-five.
(B) The opinion shall apply to all business in force, including individual and group health
insurance plans, in form and substance acceptable to the commissioner as specified by regulation.
(C) The opinion shall be based on standards adopted, from time to time, by the actuarial
standards board and on such additional standards as the commissioner may by regulation prescribe.
(D) In the case of an opinion required to be submitted by a foreign or alien company, the
commissioner may accept the opinion filed by that company with the insurance supervisory official
of another state if the commissioner determines that the opinion reasonably meets the requirements
applicable to a company domiciled in this state.
(E) For the purposes of this section, 'qualified actuary' means a member in good standing of
the American academy of actuaries who meets the requirements set forth in such regulations.
(F) Except in cases of fraud or willful misconduct, the qualified actuary shall is not be liable
for damages to any person (other than the insurance company and the commissioner) for any act,
error, omission, decision or conduct with respect to the actuary's opinion.
(G) Disciplinary action by the commissioner against the company or the qualified actuary
shall be defined in regulations by the commissioner.
(H) Any memorandum in support of the opinion and any other material provided by the
company to the commissioner in connection therewith shall be kept confidential by the
commissioner and shall not be made public and shall not be subject to subpoena, other than for the
purpose of defending an action seeking damages from any person by reason of any action required
by this section or by regulations promulgated hereunder: Provided, That the memorandum or other
material may otherwise be released by the commissioner: (i) With the written consent of the
company; (ii) to the American academy of actuaries upon request stating that the memorandum or other material is required for the purpose of professional disciplinary proceedings and setting forth
procedures satisfactory to the commissioner for preserving the confidentiality of the memorandum
or other material; or (iii) in accordance with section nineteen, article two of this chapter. Once any
portion of the confidential memorandum is cited by the company in its marketing or is cited by the
company before any governmental agency other than a state insurance department or is released by
the company to the news media, all portions of the confidential memorandum shall be no longer
confidential.
(d) Computation of minimum standards. -- Except as otherwise provided in subsections (e),
(f) and (m) of this section, the minimum standard for the valuation of all such policies and contracts
issued prior to the effective date of this section shall be that provided by the laws in effect
immediately prior to such the effective date. Except as otherwise provided in subsections (e), (f) and
(m) of this section, the minimum standard for the valuation of all such policies and contracts issued
on or after the effective date of this section shall be the commissioners reserve valuation methods
defined in subsections (g), (h), (k) and (m) of this section, three and one-half percent interest or in
the case of life insurance policies and contracts, other than annuity and pure endowment contracts,
issued on or after the first day of June, one thousand nine hundred seventy-four, four percent interest
for such policies issued prior to the sixth day of April, one thousand nine hundred seventy-seven,
five and one-half percent interest for single premium life insurance policies and four and one-half
percent interest for all other such policies issued on and after the sixth day of April, one thousand
nine hundred seventy-seven, and the following tables:
(1) For all ordinary policies of life insurance issued on the standard basis, excluding any
disability and accidental death benefits in such policies:
(A) The commissioners 1941 standard ordinary mortality table for such policies issued prior
to the operative date of subsection (4a), section thirty, article thirteen of this chapter;
(B) The commissioners 1958 standard ordinary mortality table for such policies issued on or
after the operative date of said subsection (4a),section thirty, article thirteen of this chapter, and prior
to the operative date of subsection (4c) of said section: Provided, That for any category of such
policies issued on female risks, all modified net premiums and present values referred to in this
section may be calculated according to an age not more than six years younger than the actual age
of the insured; and,
__________(C) for such For policies issued on or after the operative date of subsection (4c), section
thirty, article thirteen of this chapter:
(I) The commissioners 1980 standard ordinary mortality table; or,
(ii) at the election of the company for any one or more specified plans of life insurance, the
commissioners 1980 standard ordinary mortality table with ten-year select mortality factors; or,
(iii) any ordinary mortality table adopted after the year one thousand nine hundred eighty by
the national association of insurance commissioners that is approved by regulation rule promulgated
by the commissioner for use in determining the minimum standard of valuation for such the policies.
(2) For all industrial life insurance policies issued on the standard basis, excluding any
disability and accidental death benefits in such the policies: The 1941 standard industrial mortality
table for such policies issued prior to the operative date of subdivision (4), subsection (b), section
thirty, article thirteen of this chapter and for such policies issued on or after such the operative date,
the commissioners 1961 standard industrial mortality table or any industrial mortality table adopted
after the year one thousand nine hundred eighty by the national association of insurance commissioners that is approved by regulation rule promulgated by the commissioner for use in
determining the minimum standard of valuation for such the policies.
(3) For individual annuity and pure endowment contracts, excluding any disability and
accidental death benefits in such policies: The 1937 standard annuity mortality table or, at the option
of the company, the annuity mortality table for 1949, ultimate, or any modification of either of these
tables approved by the commissioner.
(4) For group annuity and pure endowment contracts, excluding any disability and accidental
death benefits in such the policies: The group annuity mortality table for 1951, any modification of
such the table approved by the commissioner, or at the option of the company, any of the tables or
modifications of tables specified for individual annuity and pure endowment contracts.
(5) For total and permanent disability benefits in or supplementary to ordinary policies or
contracts: For policies or contracts issued on or after the first day of January, one thousand nine
hundred sixty-six, the tables of period two disablement rates and the 1930 to 1950 termination rates
of the 1952 disability study of the society of actuaries, with due regard to the type of benefit or any
tables of disablement rates and termination rates adopted after the year one thousand nine hundred
eighty by the national association of insurance commissioners that are approved by regulation rule
promulgated by the commissioner for use in determining the minimum standard of valuation for such
the policies; for policies or contracts issued on or after the first day of January, one thousand nine
hundred sixty-one, and prior to the first day of January, one thousand nine hundred sixty-six, either
such tables or, at the option of the company, the Class (3) disability table (1926); and for policies
issued prior to the first day of January, one thousand nine hundred sixty-one, the Class (3) disability
table (1926).
Any such table shall, for active lives, be combined with a mortality table permitted for
calculating the reserves for life insurance policies.
(6) For accidental death benefits in or supplementary to policies issued on or after the first
day of January, one thousand nine hundred sixty-six, the 1959 accidental death benefits table or any
accidental death benefits table adopted after the year one thousand nine hundred eighty by the
national association of insurance commissioners, that is approved by regulation rules promulgated
by the commissioner for use in determining the minimum standard of valuation for such policies,
for policies issued on or after the first day of January, one thousand nine hundred sixty-one, and prior
to the first day of January, one thousand nine hundred sixty-six, either such table or, at the option
of the company, the intercompany double indemnity mortality table; and for policies issued prior to
the first day of January, one thousand nine hundred sixty-one, the intercompany double indemnity
mortality table. Either table shall be combined with a mortality table for calculating the reserves for
life insurance policies.
(7) For group life insurance, life insurance issued on the substandard basis and other special
benefits: Such tables Tables as may be approved by the commissioner.
(e) Computation of minimum standard for annuities. -- Except
as provided in subsection (f) of this section, the minimum standard for the valuation of all individual
annuity and pure endowment contracts issued on or after the operative date of this subsection, as
defined herein, and for all annuities and pure endowments purchased on or after such the operative
date under group annuity and pure endowment contracts shall be the commissioner's reserve
valuation methods defined in subsections (g) and (h) of this section and the following tables and
interest rates:
(1) For individual annuity and pure endowment contracts issued prior to the sixth day of
April, one thousand nine hundred seventy-seven, excluding any disability and accidental death
benefits in such the contracts: The 1971 individual annuity mortality table or any modification of
this table approved by the commissioner and six percent interest for single premium immediate
annuity contracts and four percent interest for all other individual annuity and pure endowment
contracts;
(2) For individual single premium immediate annuity contracts issued on or after the sixth
day of April, one thousand nine hundred seventy-seven, excluding any disability and accidental death
benefits in such contracts: The 1971 individual annuity mortality table or any individual annuity
mortality table adopted after the year one thousand nine hundred eighty by the national association
of insurance commissioners that is approved by regulation rule promulgated by the commissioner
for use in determining the minimum standard of valuation for such the contracts or any modification
of these tables approved by the commissioner and seven and one-half percent interest;
(3) For individual annuity and pure endowment contracts issued on or after the sixth day of
April, one thousand nine hundred seventy-seven, other than single premium immediate annuity
contracts, excluding any disability and accidental death benefits in such the contracts: The 1971
individual annuity mortality table or any individual annuity mortality table adopted after the year one
thousand nine hundred eighty by the national association of insurance commissioners that is
approved by regulation promulgated by the commissioner for use in determining the minimum
standard of valuation for such the contracts or any modification of these tables approved by the
commissioner and five and one-half percent interest for single premium deferred annuity and pure
endowment contracts and four and one-half percent interest for all other such individual annuity and pure endowment contracts;
(4) For all annuities and pure endowments purchased prior to the sixth day of April, one
thousand nine hundred seventy-seven, under group annuity and pure endowment contracts, excluding
any disability and accidental death benefits purchased under such the contracts: The 1971 group
annuity mortality table or any modification of this table approved by the commissioner and six
percent interest;
(5) For all annuities and pure endowments purchased on or after the sixth day of April, one
thousand nine hundred seventy-seven, under group annuity and pure endowment contracts, excluding
any disability and accidental death benefits purchased under such the contracts: The 1971 group
annuity mortality table or any group annuity mortality table adopted after the year one thousand nine
hundred eighty by the national association of insurance commissioners that is approved by regulation
promulgated by the commissioner for use in determining the minimum standard of valuation for such
annuities and pure endowments or any modification of these tables approved by the commissioner
and seven and one-half percent interest.
After the third day of June, one thousand nine hundred seventy-four, any company may file
with the commissioner a written notice of its election to comply with the provisions of this
subsection after a specified date before the first day of January, one thousand nine hundred seventy-
nine, which shall be the operative date of this subsection for such the company provided, if a
company makes no such election, the operative date of this section for such the company shall be
the first day of January, one thousand nine hundred seventy-nine.
(f) Computation of minimum standard by calendar year of issue. --
(1) Applicability of this section. -- The interest rates used in determining the minimum standard for the valuation of:
(A) All life insurance policies issued in a particular calendar year, on or after the operative
date of subdivision (4), subsection (c), section thirty, article thirteen of this chapter as amended;
(B) All individual annuity and pure endowment contracts issued in a particular calendar year
on or after the first day of January, one thousand nine hundred eighty-two;
(C) All annuities and pure endowments purchased in a particular calendar year on or after the
first day of January, one thousand nine hundred eighty-two, under group annuity and pure
endowment contracts; and
(D) The net increase, if any, in a particular calendar year
after the first day of January, one thousand nine hundred eighty-two, in amounts held under
guaranteed interest contracts, shall be the calendar year statutory valuation interest rates as
defined in this subsection.
(2) Calendar year statutory valuation interest rates. --
(A) The calendar year statutory valuation interest rates, I, shall be determined as follows and
the results rounded to the nearer one quarter of one percent:
(i) For life insurance, I =.03 + W(R1 -.03) + W/2(R2 -.09);
(ii) For single premium immediate annuities and for annuity benefits involving life
contingencies arising from other annuities with cash settlement options and from guaranteed interest
contracts with cash settlement options, I =.03 + W® -.03) where R1 is the lesser of R and .09, R2
is the greater of R and .09, R is the reference interest rate defined in this subsection and W is the
weighting factor defined in this section;
(iii) For other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on an issue year basis, except as stated in subparagraph (ii) of this
paragraph, the formula for life insurance stated in subparagraph (i) of this paragraph shall apply to
annuities and guaranteed interest contracts with guarantee durations in excess of ten years and the
formula for single premium immediate annuities stated in subparagraph (ii) of this paragraph shall
apply to annuities and guaranteed interest contracts with guarantee duration of ten years or less;
(iv) For other annuities with no cash settlement options and for guaranteed interest contracts
with no cash settlement options, the formula for single premium immediate annuities stated in
subparagraph (ii) of this paragraph shall apply;
(v) For other annuities with cash settlement options and guaranteed interest contracts with
cash settlement options, valued on a change in fund basis, the formula for single premium immediate
annuities stated in subparagraph (ii) of this paragraph shall apply.
(B) However, if the calendar year statutory valuation interest rate for any life insurance
policies issued in any calendar year determined without reference to this sentence differs from the
corresponding actual rate for similar policies issued in the immediately preceding calendar year by
less than one half of one percent, the calendar year statutory valuation interest rate for such life
insurance policies shall be equal to the corresponding actual rate for the immediately preceding
calendar year. For purposes of applying the immediately preceding sentence, the calendar year
statutory valuation interest rate for life insurance policies issued in a calendar year shall be
determined for the year one thousand nine hundred eighty (using the reference interest rate defined
for the year one thousand nine hundred seventy-nine) and shall be determined for each subsequent
calendar year regardless of when subdivision (4), subsection (c), section thirty, article thirteen of this
chapter, as amended, becomes operative.
(3) Weighting factors. -
(A) The weighting factors referred to in the formulas stated above are given in the following
tables:
(i) Weighting Factors for Life Insurance:
Guarantee Duration (Years) Weighting Factors
______________________ _________________
10 or less .50
More than 10, but not more than 20 .45
More than 20 .35
For life insurance, the guarantee duration is the maximum number of years the life insurance
can remain in force on a basis
guaranteed in the policy or under options to convert to plans of life insurance with premium rates
or nonforfeiture values or both which are guaranteed in the original policy;
(ii) Weighting factor for single premium immediate annuities and for annuity benefits
involving life contingencies arising from other annuities with cash settlement options and guaranteed
interest contracts with cash settlement options: .80;
(iii) Weighting factors for other annuities and for guaranteed interest contracts, except as
stated in subparagraph (ii) of this paragraph, shall be as specified in clauses (I), (II) and (III) of this
subparagraph, according to the rules and definitions in clauses (IV), (V) and (VI) of this
subparagraph:
(I) For annuities and guaranteed interest contracts valued on an issue year basis:
Guarantee Duration (Years) Weighting Factor for Plan Type
A B C
______________________ _____________________
5 or less: .80 .60 .50
More than 5, but not more than 10: .75 .60 .50
More than 10, but not more than 20: .65 .50 .45
More than 20: .45 .35 .35
(II) For annuities and guaranteed interest contracts valued on a change in fund basis, the
factors shown in subparagraph (i) of this paragraph increased by:
Weighting Factor for Plan Type
A B C1
____________________
.15 .25 .05
(III) For annuities and guaranteed interest contracts valued on an issue year basis (other than
those with no cash settlement options) which do not guarantee interest on considerations received
more than one year after issue or purchase and for annuities and guaranteed interest contracts valued
on a change in fund basis which do not guarantee interest rates on considerations received more than
twelve months beyond the valuation date, the factors shown in clause (I) of this subparagraph or
derived in clause (II) of this subparagraph increased by:
Weighting Factor for Plan Type
A B C1
.05 .05 .05
(IV) For other annuities with cash settlement options and guaranteed interest contracts with
cash settlement options, the guarantee duration is the number of years for which the contract
guarantees interest rates in excess of the calendar year statutory valuation interest rate for life
insurance policies with guarantee duration in excess of twenty years. For other annuities with no
cash settlement options and for guaranteed interest contracts with no cash settlement options, the
guaranteed duration is the number of years from the date of issue or date of purchase to the date
annuity benefits are scheduled to commence.
(V) Plan type as used in the above tables is defined as follows:
Plan Type A:
At any time policyholder may withdraw funds only: (1) With an adjustment to reflect
changes in interest rates or asset values since receipt of the funds by the insurance company; or (2)
without such adjustment but in installments over five years or more; or (3) as an immediate life
annuity; or (4) no withdrawal permitted;
Plan Type B:
Before expiration of the interest rate guarantee, policyholder may withdraw funds only: (1)
With an adjustment to reflect changes in interest rates or asset values since receipt of the funds by
the insurance company; or (2) without such adjustment but in installments over five years or more;
or (3) no withdrawal permitted. At the end of interest rate guarantee, funds may be withdrawn
without such adjustment in a single sum or installments over less than five years;
Plan Type C:
Policyholder may withdraw funds before expiration of interest rate guarantee in a single sum
or installments over less than five years either: (1) Without adjustment to reflect changes in interest rates or asset values since receipt of the funds by the insurance company; or (2) subject only to a
fixed surrender charge stipulated in the contract as a percentage of the fund.
(VI) A company may elect to value guaranteed interest contracts with cash settlement options
and annuities with cash settlement options on either an issue year basis or on a change in fund basis.
Guaranteed interest contracts with no cash settlement options and other annuities with no cash
settlement options must be valued on an issue year basis. As used in this section, an issue year basis
of valuation refers to a valuation basis under which the interest rate used to determine the minimum
valuation standard for the entire duration of the annuity or guaranteed interest contract is the calendar
year valuation interest rate for the year of issue or year of purchase of the annuity or guaranteed
interest contract and the change in fund basis of valuation refers to a valuation basis under which the
interest rate used to determine the minimum valuation standard applicable to each change in the fund
held under the annuity or guaranteed interest contract is the calendar year valuation interest rate for
the year of the change in the fund.
(4) Reference interest rate. --
(A) Reference interest rate referred to in subparagraph (ii), paragraph (A), subdivision (2) of
this subsection shall be defined as follows:
(i) For all life insurance, the lesser of the average over a period of thirty-six months and the
average over a period of twelve months, ending on the thirtieth day of June of the calendar year next
preceding the year of issue, of the monthly average of the composite yield on seasoned corporate
bonds as published by Moody's investors service, inc.
(ii) For single premium immediate annuities and for annuity benefits involving life
contingencies arising from other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, the average over a period of twelve months, ending on the
thirtieth day of June of the calendar year of issue or year of purchase, of the monthly average of the
composite yield on seasoned corporate bonds as published by Moody's investors service, inc.
(iii) For other annuities with cash settlement options and guaranteed interest contracts with
cash settlement options, valued on a year of issue basis, except as stated in subparagraph (ii) of this
paragraph, with guarantee duration in excess of ten years, the lesser of the average over a period of
thirty-six months and the average over a period of twelve months, ending on the thirtieth day of June
of the calendar year of issue or purchase, of the monthly average of the composite yield on seasoned
corporate bonds as published by Moody's investors service, inc.
(iv) For other annuities with cash settlement options and guaranteed interest contracts with
cash settlement options, valued on a year of issue basis, except as stated in subparagraph (ii) of this
paragraph, with guarantee duration of ten years or less, the average over a period of twelve months,
ending on the thirtieth day of June of the calendar year of issue or purchase, of the monthly average
of the composite yield on seasoned corporate bonds as published by Moody's investors service, inc.
(v) For other annuities with no cash settlement options and for guaranteed interest contracts
with no cash settlement options, the average over a period of twelve months, ending on the thirtieth
day of June of the calendar year of issue or purchase, of the monthly average of the composite yield
on seasoned corporate bonds as published by Moody's investors service, inc.
(vi) For other annuities with cash settlement options and guaranteed interest contracts with
cash settlement options, valued on a change in fund basis, except as stated in subparagraph (ii) of
this paragraph, the average over a period of twelve months, ending on the thirtieth day of June of the
calendar year of the change in the fund, of the monthly average of the composite yield on seasoned corporate bonds as published by Moody's investors service, inc.
(5) Alternative method for determining reference interest rates. --
In the event that the monthly average of the composite yield on seasoned corporate bonds is
no longer published by Moody's investors service, inc., or in the event that the national association
of insurance commissioners determines that the monthly average of the composite yield on seasoned
corporate bonds as published by Moody's investors service, inc., is no longer appropriate for the
determination of the reference interest rate, then an alternative method for determination of the
reference interest rate, which is adopted by the national association of insurance commissioners and
approved by regulation promulgated by the commissioner, may be substituted.
(g) Reserve valuation method. -- Life insurance and endowment benefits.
Except as otherwise provided in subsections (h), (k) and (m) of this section, reserves
according to the commissioners reserve valuation method for the life insurance and endowment
benefits of policies providing for a uniform amount of insurance and requiring the payment of
uniform premiums shall be the excess, if any, of the present value, at the date of valuation, of such
the future guaranteed benefits provided for by such the policies, over the then present value of any
future modified net premiums therefor. The modified net premiums for any such policy shall be such
the uniform percentage of the respective contract premiums for such the benefits that the present
value, at the date of issue of the policy, of all such the modified net premiums shall be equal to the
sum of the then present value of such the benefits provided for by the policy and the excess of
subdivision (1) of this subsection over subdivision (2) of this subsection, as follows:
(1) A net level annual premium equal to the present value, at the date of issue, of such
benefits provided for after the first policy year, divided by the present value, at the date of issue, of an annuity of one per annum payable on the first and each subsequent anniversary of such policy on
which a premium falls due: Provided, That such net level annual premium shall not exceed the net
level annual premium on the nineteen-year premium whole life plan for insurance of the same
amount at an age one year higher than the age at issue of such policy.
(2) A net one-year term premium for such benefits provided for in the first policy year:
Provided, That for any life insurance policy issued on or after the first day of January, one thousand
nine hundred eighty-five, for which the contract premium in the first policy year exceeds that of the
second year and for which no comparable additional benefit is provided in the first year for such
excess and which provides an endowment benefit or a cash surrender value or a combination thereof
in an amount greater than such excess premium, the reserve according to the commissioners' reserve
valuation method as of any policy anniversary occurring on or before the assumed ending date
defined herein as the first policy anniversary on which the sum of any endowment benefit and any
cash surrender value then available is greater than such excess premium shall, except as otherwise
provided in subsection (k) of this section, be the greater of the reserve as of such policy anniversary
calculated as described in the preceding paragraph and the reserve as of such the policy anniversary
calculated as described in that paragraph, but with: (i) The value defined in subdivision (1) of that
paragraph being reduced by fifteen percent of the amount of such excess first-year premium; (ii) all
present values of benefits and premiums being determined without reference to premiums or benefits
provided for by the policy after the assumed ending date; (iii) the policy being assumed to mature
on such the date as an endowment; and (iv) the cash surrender value provided on such date being
considered as an endowment benefit. In making the above comparison, the mortality and interest
bases stated in subsections (d) and (f) of this section shall be used.
Reserves according to the commissioners' reserve valuation method for: (i) Life insurance
policies providing for a varying amount of insurance or requiring the payment of varying premiums;
(ii) group annuity and pure endowment contracts purchased under a retirement plan or plan of
deferred compensation, established or maintained by an employer (including a partnership or sole
proprietorship) or by an employee organization, or by both, other than a plan providing individual
retirement accounts or individual retirement annuities under section 408 of the Internal Revenue
Code (26 U.S.C. §408) as now or hereafter amended; (iii) disability and accidental death benefits
in all policies and contracts; and (iv) all other benefits, except life insurance and endowment benefits
in life insurance policies and benefits provided by all other annuity and pure endowment contracts,
shall be calculated by a method consistent with the principles of the preceding paragraphs of this
section.
(h) Reserve valuation method. -- Annuity and pure endowment benefits. This subsection
shall apply to all annuity and pure endowment contracts other than group annuity and pure
endowment contracts purchased under a retirement plan or plan of deferred compensation established
or maintained by an employer (including a partnership or sole proprietorship) or by an employee
organization, or by both, other than a plan providing individual retirement accounts or individual
retirement annuities under section 408 of the Internal Revenue Code (26 U.S.C. §408) as now or
hereafter amended.
Reserves according to the commissioners' annuity reserve method for benefits under annuity
or pure endowment contracts, excluding any disability and accidental death benefits in such
contracts, shall be the greatest of the respective excesses of the present values, at the date of
valuation, of the future guaranteed benefits, including guaranteed nonforfeiture benefits, provided for by such contracts at the end of each respective contract year over the present value, at the date
of valuation, of any future valuation considerations derived from future gross considerations,
required by the terms of such contract, that become payable prior to the end of such respective
contract year.
The future guaranteed benefits shall be determined by using the mortality table, if any, and
the interest rate, or rates, specified in such the contracts for determining guaranteed benefits. The
valuation considerations are the portions of the respective gross considerations applied under the
terms of such contracts to determine nonforfeiture values.
(i) Minimum reserves. --
(1) In no event shall a company's aggregate reserves for all life insurance policies, excluding
disability and accidental death benefits, issued on or after the effective date of this section be less
than the aggregate reserves calculated in accordance with the methods set forth in subsections (g),
(h), (k) and (l) of this section and the mortality table or tables and rate or rates of interest used in
calculating nonforfeiture benefits for such policies.
(2) In no event shall the aggregate reserves for all policies, contracts and benefits be less than
the aggregate reserves determined by the qualified actuary to be necessary to render the opinion
required by subsection (c) of this section.
(j) Optional reserve calculation. --
Reserves for all policies and contracts issued prior to the effective date of this section may
be calculated, at the option of the company, according to any standards which produce greater
aggregate reserves for all such policies and contracts than the minimum reserves required by the laws
in effect immediately prior to such date.
Reserves for any category of policies, contracts or benefits as established by the
commissioner issued on or after the effective date of this section may be calculated, at the option of
the company, according to any standards which produce greater aggregate reserves for such category
than those calculated according to the minimum standard herein provided, but the rate or rates of
interest used for policies and contracts, other than annuity and pure endowment contracts, shall not
be higher than the corresponding rate or rates of interest used in calculating any nonforfeiture
benefits provided therein.
Any such company which at any time shall have adopted any standard of valuation producing
greater aggregate reserves than those calculated according to the minimum standard herein provided
may, with the approval of the commissioner, adopt any lower standard of valuation, but not lower
than the minimum herein provided: Provided, That for the purposes of this section, the holding of
additional reserves previously determined by a qualified actuary to be necessary to render the opinion
required by subsection (c) of this section shall not be considered to be the adoption of a higher
standard of valuation.
(k) Reserve calculation. -- Valuation net premium exceeding the gross premium charged.
If in any contract year the gross premium charged by any life insurance company on any
policy or contract is less than the valuation net premium for the policy or contract calculated by the
method used in calculating the reserve thereon but using the minimum valuation standards of
mortality and rate of interest, the minimum reserve required for such policy or contract shall be the
greater of either the reserve calculated according to the mortality table, rate of interest and method
actually used for such policy or contract or the reserve calculated by the method actually used for
such policy or contract but using the minimum valuation standards of mortality and rate of interest and replacing the valuation net premium by the actual gross premium in each contract year for which
the valuation net premium exceeds the actual gross premium. The minimum valuation standards of
mortality and rate of interest referred to in this section are those standards stated in subsections (d)
and (f) of this section: Provided, That for any life insurance policy issued on or after the first day
of January, one thousand nine hundred eighty-five, for which the gross premium in the first policy
year exceeds that of the second year and for which no comparable additional benefit is provided in
the first year for such excess and which provides an endowment benefit or a cash surrender value
or a combination thereof in an amount greater than such excess premium, the foregoing provisions
of this subsection shall be applied as if the method actually used in calculating the reserve for such
policy were the method described in subsection (g) of this section, ignoring the second paragraph
of said subsection.
The minimum reserve at each policy anniversary of such a policy shall be the greater of the
minimum reserve calculated in accordance with said subsection, including the second paragraph of
that section, and the minimum reserve calculated in accordance with this subsection.
(l) Reserve calculation. -- Indeterminate premium plans.
In the case of any plan of life insurance which provides for
future premium determination, the amounts of which are to be determined by the insurance company
based on then estimates of future experience, or in the case of any plan of life insurance or annuity
which is of such a nature that the minimum reserves cannot be determined by the methods described
in subsections (g), (h) and (k) of this section, the reserves which are held under any such plan must:
(1) Be appropriate in relation to the benefits and the pattern of premiums for that plan; and
(2) Be computed by a method which is consistent with the principles of this standard valuation law as determined by regulations promulgated by the commissioner.
(m) Minimum standards for health (disability, accident and sickness) plans. --
The commissioner shall promulgate a regulation rule containing the minimum standards
applicable to the valuation of health (disability, sickness and accident) plans.
(n) The commissioner shall promulgate a rule on or before the first day of November, one
thousand nine hundred ninety-five, prescribing the guidelines and standards for statements of
actuarial opinion which are to be submitted in accordance with subsection (c) of this section and for
memoranda in support thereof; guidelines and standards for statements of actuarial opinion which
are to be submitted when a company is exempt from subdivision (2) of said subsection of the
standard valuation law; and rules applicable to the appointment of an appointed actuary.
(o) Effective date. - All acts and parts of acts inconsistent with the provision of this section
are hereby repealed as of the effective date of this section. This section shall take effect the first day
of January, one thousand nine hundred ninety-six.
(p) Modification of the standard valuation law for certain types of contracts. --
(1) The commissioner may, by rule, establish alternative methods of calculating reserve
liabilities, which methods shall be used to calculate reserve liabilities for the types of policies,
annuities or other contracts identified in the rule: Provided, That the method specified in the rule
shall be one which, in the opinion of the commissioner and in light of the methods applied to such
the contracts by the insurance regulators of other states, is appropriate to such the contracts. This
power shall be in addition to, and in no way diminish, rule-making power granted to the
commissioner elsewhere in this code.
(2) The legislative rule filed in the state register on the twentieth day of August, one thousand nine hundred ninety-six, (valuation of life insurance policies, 114 CSR 49) is hereby disapproved
and is not authorized for promulgation: Provided, That for purposes of determining the legal effects
of the aforementioned rule, this provision shall be considered to have taken effect on the thirty-first
day of December, one thousand nine hundred ninety-seven. This disapproval shall in no way limit
the commissioner's power to promulgate in the future a rule similar or identical to the rule here
disapproved.
ARTICLE 13. LIFE INSURANCE.
§33-13-30a. Standard nonforfeiture law for individual deferred annuities.
(a) This section shall be known as the 'Standard Nonforfeiture Law for Individual Deferred
Annuities'.
(b) This section may not apply to any reinsurance, group annuity purchased under a
retirement plan or plan of deferred compensation established or maintained by an employer
(including a partnership or sole proprietorship) or by an employee organization, or by both, other
than a plan providing individual retirement accounts or individual retirement annuities under Section
408 of the Internal Revenue Code, as now or hereafter amended, premium deposit fund, variable
annuity, investment annuity, immediate annuity, any deferred annuity contract after annuity payments
have commenced or reversionary annuity, nor to any contract which shall be delivered outside this
state through an agent or other representative of the company issuing the contract.
(c) In the case of contracts issued on or after the operative date of this section as defined in
subsection (l) of this section, no contract of annuity, except as stated in subsection (b) of this section,
shall be delivered or issued for delivery in this state unless it contains in substance the following
provisions or corresponding provisions which, in the opinion of the commissioner, are at least as favorable to the contract holder, upon cessation of payment of considerations under the contract:
(1) That upon cessation of payment of considerations under a contract, the company will
grant a paid-up annuity benefit on a plan stipulated in the contract of the value as is specified in
subsections (e), (f), (g), (h) and (j) of this section;
(2) If a contract provides for a lump sum settlement at maturity or at any other time, that,
upon surrender of the contract at or prior to the commencement of any annuity payments, the
company will pay in lieu of any paid-up annuity benefit a cash surrender benefit of the amount as
is specified in subsections (e), (f), (h) and (j) of this section. The company shall reserve the right to
defer the payment of the cash surrender benefit for a period of six months after demand therefor with
surrender of the contract;
(3) A statement of the mortality table, if any, and interest rates used in calculating any
minimum paid-up annuity, cash surrender or death benefits that are guaranteed under the contract,
together with sufficient information to determine the amounts of the benefits; and
(4) A statement that any paid-up annuity, cash surrender or death benefits that may be
available under the contract are not less than the minimum benefits required by any statute of the
state in which the contract is delivered and an explanation of the manner in which the benefits are
altered by the existence of any additional amounts credited by the company to the contract, any
indebtedness to the company on the contract or any prior withdrawals from or partial surrenders of
the contract.
Notwithstanding the requirements of this subsection, any deferred annuity contract may
provide that if no considerations have been received under a contract for a period of two full years
and the portion of the paid-up annuity benefit at maturity on the plan stipulated in the contract arising from considerations paid prior to the period would be less than twenty dollars monthly, the company
may at its option terminate the contract by payment in cash of the then present value of the portion
of the paid-up annuity benefit, calculated on the basis of the mortality table, if any, and interest rate
specified in the contract for determining the paid-up annuity benefit and by the payment shall be
relieved of any further obligation under the contract.
(d) (1) The minimum values as specified in subsections (e), (f), (g), (h) and (j) of this section
of any paid-up annuity, cash surrender or death benefits available under an annuity contract shall be
based upon minimum nonforfeiture amounts as defined in this section subdivision:
_____(1) (A) With respect to contracts providing for flexible considerations, the minimum
nonforfeiture amount at any time at or prior to the commencement of any annuity payments shall be
equal to an accumulation up to the time at a rate of interest of three percent per annum of percentages
of the net considerations (as hereinafter defined) paid prior to the time, decreased by the sum of:
(A) (i) Any prior withdrawals from or partial surrenders of the contract accumulated at a rate
of interest of three percent per annum; and
(B) (ii) The amount of any indebtedness to the company on the contract, including interest
due and accrued; and increased by any existing additional amounts credited by the company to the
contract;
The net considerations for a given contract year used to define the minimum nonforfeiture
amount shall be an amount not less than zero and shall be equal to the corresponding gross
considerations credited to the contract during that contract year less than an annual contract charge
of thirty dollars and less a collection charge of one dollar and twenty-five cents per consideration
credited to the contract during that contract year. The percentages of net considerations shall be sixty-five percent of the net consideration for the first contract year and eighty-seven and one-half
percent of the net considerations for the second and later contract years. Notwithstanding the
provisions of the preceding sentence, the percentage shall be sixty-five percent of the portion of the
total net consideration for any renewal contract year which exceeds by not more than two times the
sum of those portions of the net considerations in all prior contract years for which the percentage
was sixty-five percent;
Notwithstanding any other provision of this section, any contract issued on or after the first
day of July, two thousand three, and before the first day of July, two thousand five six, the interest
rate at which net considerations, prior withdrawals and partial surrenders shall be accumulated for
the purpose of determining nonforfeiture amounts may not be less than one and one-half percent per
annum;
(2) (B) With respect to contracts providing for fixed scheduled considerations, minimum
nonforfeiture amounts shall be calculated on the assumption that considerations are paid annually
in advance and shall be defined as for contracts with flexible considerations which are paid annually
with two exceptions:
(A) (i) The portion of the net consideration for the first contract year to be accumulated shall
be the sum of sixty-five percent of the net consideration for the first contract year plus twenty-two
and one-half percent of the excess of the net consideration for the first contract year over the lesser
of the net considerations for the second and third contract years;
(B) (ii) The annual contract charge shall be the lesser of: (i) (1) Thirty dollars; or (ii) (2) ten
percent of the gross annual consideration;
(3) (C) With respect to contracts providing for a single consideration, minimum nonforfeiture amounts shall be defined as for contracts with flexible considerations except that the percentage of
net consideration used to determine the minimum nonforfeiture amount shall be equal to ninety
percent and the net consideration shall be the gross consideration less a contract charge of seventy-
five dollars;
(D) This subdivision applies to contracts issued before the first day of July, two thousand
four, and may be applied by a company on a contract-by-contract basis to contracts issued on or after
the first day of July, two thousand four, and before the first day of July, two thousand six;
_____(2) The minimum values as specified in subsections (e), (f), (g), (h) and (j) of any paid-up
annuity, cash surrender or death benefits available under an annuity contract shall be based upon
minimum nonforfeiture amounts as defined in this subdivision;
_____(A) (i) The minimum nonforfeiture amount at any time at or prior to the commencement of
any annuity payments shall be equal to an accumulation up to such time at rates of interest as
indicated in paragraph (B) of this subdivision of the net considerations (as hereinafter defined) paid
prior to such time, decreased by the sum of subparagraphs (I) through (IV) below:
_____(I) Any prior withdrawals from or partial surrenders of the contract accumulated at rates of
interest as indicated in paragraph (B);
_____(II) An annual contract charge of fifty dollars, accumulated at rates of interest as indicated
in paragraph (B) of this subdivision;
_____(III) Any premium tax paid by the company for the contract, accumulated at rates of interest
as indicated in subparagraph (ii), paragraph (B) of this subdivision; and
_____(IV) The amount of any indebtedness to the company on the contract, including interest due
and accrued;
_____(ii) The net considerations for a given contract year used to define the minimum nonforfeiture
amount shall be an amount equal to eighty-seven and one-half percent of the gross considerations
credited to the contract during that contract year;
_____(B) The interest rate used in determining minimum nonforfeiture amounts shall be an annual
rate of interest determined as the lesser of three percent per annum and the following, which shall
be specified in the contract if the interest rate will be reset:
_____(i) The five-year constant maturity treasury rate reported by the federal reserve as of a date,
or average over a period, rounded to the nearest 1/20th of one percent, specified in the contract no
longer than fifteen months prior to the contract issue date or redetermination date under
subparagraph (iv) of this paragraph;
_____(ii) Reduced by one hundred twenty-five basis points;
_____(iii) Where the resulting interest rate is not less than one percent; and
_____(iv) The interest rate shall apply for an initial period and may be redetermined for additional
periods. The redetermination date, basis and period, if any, shall be stated in the contract. The basis
is the date or average over a specified period that produces the value of the five-year constant
maturity treasury rate to be used at each redetermination date;
_____(C) During the period or term that a contract provides substantive participation in an equity
indexed benefit, it may increase the reduction described in subparagraph (ii), paragraph (B) of this
subdivision by up to an additional one hundred basis points to reflect the value of the equity index
benefit. The present value at the contract issue date, and at each redetermination date thereafter, of
the additional reduction may not exceed the market value of the benefit. The commissioner may
require a demonstration that the present value of the additional reduction does not exceed the market value of the benefit. Lacking a determination that is acceptable to the commissioner, the
commissioner may disallow or limit the additional reduction;
_____(D) The commissioner may adopt rules to implement the provisions of this subsection and
to provide for further adjustments to the calculation of minimum nonforfeiture amounts for contracts
that provide substantive participation in an equity index benefit and for other contracts that the
commissioner determines their adjustments are justified;
_____(E) This subdivision shall apply to contracts outstanding on the first day of July, two
thousand four, and may be applied by a company on a contract-by-contract basis to any contract
issued after the first day of July, two thousand four, and before the first day of July, two thousand
six.
(e) Any paid-up annuity benefit available under a contract shall be such that its present value
on the date annuity payments are to commence is at least equal to the minimum nonforfeiture amount
on that date. The present value shall be computed using the mortality table, if any, and the interest
rate specified in the contract for determining the minimum paid-up annuity benefits guaranteed in
the contract.
(f) For contracts which provide cash surrender benefits, the cash surrender benefits available
prior to maturity shall may not be less than the present value as of the date of surrender of that
portion of the maturity value of the paid-up annuity benefit which would be provided under the
contract at maturity arising from consideration paid prior to the time of cash surrender reduced by
the amount appropriate to reflect any prior withdrawals from or partial surrenders of the contract,
the present value being calculated on the basis of an interest rate not more than one percent higher
than the interest rate specified in the contract for accumulating the net considerations to determine the maturity value, decreased by the amount of any indebtedness to the company on the contract,
including interest due and accrued, and increased by any existing additional amounts credited by the
company to the contract. In no event shall any cash surrender benefit be less than the minimum
nonforfeiture amount at that time. The death benefit under the contracts shall be at least equal to the
cash surrender benefit.
(g) For contracts which do not provide cash surrender benefits, the present value of any paid-
up annuity benefit available as a nonforfeiture option at any time prior to maturity shall may not be
less than the present value of that portion of the maturity value of the paid-up annuity benefit
provided under the contract arising from considerations paid prior to the time the contract is
surrendered in exchange for, or changed to, a deferred paid-up annuity, the present value being
calculated for the period prior to the maturity date on the basis of the interest rate specified in the
contract for accumulating the net considerations to determine the maturity value and increased by
any existing additional amounts credited by the company to the contract. For contracts which do not
provide any death benefits prior to the commencement of any annuity payments, the present values
shall be calculated on a basis of the interest rate and the mortality table specified in the contract for
determining the maturity value of the paid-up annuity benefit. However, in no event shall the present
value of a paid-up annuity benefit be less than the minimum nonforfeiture amount at that time.
(h) For the purpose of determining the benefits calculated under subsections (f) and (g) of
this section, in the case of annuity contracts under which an election may be made to have annuity
payments commence at optional maturity dates, the maturity date shall be deemed is considered to
be the latest date for which election shall be is permitted by the contract, but shall is not be deemed
considered to be later than the anniversary of the contract next following the annuitant's seventieth birthday or the tenth anniversary of the contract, whichever is later.
(i) Any contract which does not provide cash surrender benefits or does not provide death
benefits at least equal to the minimum nonforfeiture amount prior to the commencement of any
annuity payments shall include a statement in a prominent place in the contract that the benefits are
not provided.
(j) Any paid-up annuity, cash surrender or death benefits available at any time, other than on
the contract anniversary under any contract with fixed scheduled considerations, shall be calculated
with allowance for the lapse of time and the payment of any scheduled considerations beyond the
beginning of the contract year in which cessation of payment of considerations under the contract
occurs.
(k) For any contract which provides, within the same contract by rider or supplemental
contract provision, both annuity benefits and life insurance benefits that are in excess of the greater
of cash surrender benefits or a return of the gross considerations with interest, the minimum
nonforfeiture benefits shall be equal to the sum of the minimum nonforfeiture benefits for the
annuity portion and the minimum nonforfeiture benefits, if any, for the life insurance portion
computed as if each portion were a separate contract. Notwithstanding the provisions of subsections
(e), (f), (g), (h) and (j) of this section, additional benefits payable: (1) In the event of total and
permanent disability; (2) as reversionary annuity or deferred reversionary annuity benefits; or (3) as
other policy benefits additional to life insurance, endowment and annuity benefits and considerations
for all the additional benefits shall be disregarded in ascertaining the minimum nonforfeiture
amounts, paid-up annuity, cash surrender and death benefits that may be required by this section.
The inclusion of the additional benefits shall may not be required in any paid-up benefits unless the additional benefits separately would require minimum nonforfeiture amounts, paid-up annuity, cash
surrender and death benefits.
(l) After the effective date of this section, any company may file with the commissioner a
written notice of its election to comply with the provisions of this section after a specified date
before the second anniversary of the effective date of this section. After the filing of the notice, then
upon the specified date which shall be the operative date of this section for the company, this section
shall become operative with respect to annuity contracts thereafter issued by the company. If a
company makes no election, the operative date of this section for the company shall be is the second
anniversary of the effective date of this section.
(m) (1) During the period from the first day of July, two thousand four, through the first day
of July, two thousand six, an insurer may elect on a contract-by-contract basis to apply the provisions
of either subdivision (1) or (2), subsection (d) of this section to any annuity contract issued during
that period of time;
(2) The provisions of subdivision (1), subsection (d) of this section expires the first day of
July, two thousand six."
The bill was then ordered to third reading.
S. B. 577, Continuing board of registration for foresters; on second reading, coming up in
regular order, was read a second time and ordered to third reading.
S. B. 671, Clarifying appeal bond procedures relating to master tobacco settlement on second
reading, coming up in regular order, was read a second time and ordered to third reading.
First Reading
The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed
with him for the removal of bills from the Consent Calendar to the House Calendar:
S. B. 316, S. B. 319, Com. Sub. for S. B. 327, Com. Sub. for S. B. 350, Com. Sub. for S.
B. 399, Com. Sub. for S. B. 456, Com. Sub. for S. B. 508, S. B. 558, Com. Sub. for S. B. 637 and
S. B. 719 on first reading, Consent Calendar, to the House Calendar, by Delegate Trump.
And,
S. B. 536, on first reading, Consent Calendar, to the House Calendar, by Delegate
Fleischauer.
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
S. B. 321, Providing personal income tax adjustment to gross income of certain retirees,
S. B. 323, Continuing office of explosives and blasting,
Com. Sub. for S. B. 404, Clarifying term "behavioral health services"; removing
"community care services",
S. B. 406, Relating to victim notification of defendant's release,
S. B. 450, Relating to long-term care insurance policies,
S. B. 479, Relating to licensing foreign insurers,
S. B. 482, Reclassifying juvenile detention and corrections facility employees,
S. B. 501, Relating to disqualification for public retirement plan benefits; other provisions,
S. B. 645, Appointing interim judges to court of claims,
Com. Sub. for S. B. 672, Relating to municipalities' right to collect public utility fees,
S. B. 720, Relating to unused state private activity bond volume cap,
And,
S. B. 726, Continuing steel advisory commission and steel futures program.
Special Calendar
Unfinished Business
S. C. R. 48, Requesting Joint Committee on Government and Finance study training and
educational needs related to Alzheimer's disease and related dementias; coming up in regular order,
as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. C. R. 57, Requesting Joint Committee on Government and Finance study need for adult
day care, congregate respite and in-home services for persons with Alzheimer's
; coming up in
regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
H. C. R. 53, Requesting a conduct a study on fraudulent sales of durable medical equipment
to West Virginia's seniors; coming up in regular order, as unfinished business, was reported by the
Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 56, Requesting a study on the current problems associated with the delivery of water
and sewer services; coming up in regular order, as unfinished business, was, at the request of
Delegate Staton, and by unanimous consent, laid over one day.
H. C. R. 74, Naming the bridge on Route 54, in Wyoming County, the "Charles S. 'Charlie
Boy' Stump, Jr. Memorial Bridge"
; coming up in regular order, as unfinished business, was reported
by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 75, Requesting the Governor to take suitable public notice each year of the month
of June as "Mountain Bike Month"; coming up in regular order, as unfinished business, was reported
by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
H. B. 4748, Supplemental appropriation in the state excess lottery revenue fund, to the lottery
commission - refundable credit; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 474), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4748) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 475), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4748) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4749, Supplementing, amending and increasing items of the existing appropriations
from the state road fund to the department of transportation, division of highways; on third reading,
coming up in regular order, was read a third time.
Delegate Browning requested to be excused from voting on the passage of H. B. 4749 under
the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of
a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct
personal or pecuniary interest therein.
On the passage of the bill, the yeas and nays were taken (Roll No. 476), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4749) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 477), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4749) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4750, Supplemental appropriation of federal funds out of the treasury from the balance
of moneys remaining unappropriated to the department of education - state department of education;
on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 478), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4750) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 479), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4750) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4751, Supplemental appropriation to the department of military affairs and public
safety - adjutant general - state militia; on third reading, coming up in regular order, was read a third
time.
On the passage of the bill, the yeas and nays were taken (Roll No. 480), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4751) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 481), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4751) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
Com. Sub. for S. B. 208, Allowing state police to engage in certain political activities while
off duty and out of uniform; on second reading, coming up in regular order, was read a second time
and ordered to third reading.
S. B. 286, Relating to assessment of regulated consumer lenders; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk on
page one, line seventeen, after the article heading, by inserting the following:
"§31A-2-2. Commissioner's appointment, term, qualifications, salary, oath and bond.
The commissioner of banking shall be appointed by the governor, by and with the advice and
consent of the Senate. He shall serve at the will and pleasure of the governor for the term for which
the governor was elected and until his successor is appointed and qualified, unless earlier removed
from office for cause as provided by law. Notwithstanding any other provisions in the code to the
contrary, the commissioner shall receive an annual salary of seventy-five thousand dollars and actual
expenses incurred in the performance of official business, which compensation shall be in full for
all services.
Any person appointed as commissioner shall have a college degree from an accredited
institution, be of good moral character, have knowledge of the theory and practice of banking and
be at least twenty-five years of age.
Before entering upon the discharge of his duties as commissioner, he shall take and subscribe
to the oath of office prescribed in section five, article four of the constitution of West Virginia and
shall enter into a bond in the penal sum of one hundred thousand dollars, with a corporate surety
authorized to engage in business in this state, conditioned upon the faithful discharge and
performance of the duties of his office. The premium of such bond shall be payable from the state
treasury out of funds allocated to the department of banking. The executed oath and bond shall be
filed in the office of the secretary of state."
And,
By amending the enacting section to read as follows:
"That §31A-2-2 and §31A-2-8 of the code of West Virginia, 1931, as amended, be amended
and reenacted to read as follows" followed by a colon.
Delegate Trump offered amendments to the Committee amendment on page one, section two, line eleven, following the word "He", by inserting the words "or she" .
On page one, section two, line thirteen, following the word "his", by inserting the words "or
her".
On page two, section two, line one, following the word "his", by inserting the words "or her".
On page two, section two, line two, following the word "he", by inserting the words "or she".
On page two, section two, line seven, following the word "his", by inserting the words "or
her".
And,
On page two, section two, following line ten, by inserting the following:
"§31A-2-4. Jurisdiction of commissioner; powers, etc., of division transferred to
commissioner; powers and duties of commissioner.
(a) Subject to the powers vested in the board by article three of this chapter, the
commissioner has supervision and jurisdiction over state banks, regulated consumer lenders,
residential mortgage lenders and brokers licensed pursuant to article seventeen, chapter thirty-one
of this code, credit unions and all other persons now or hereafter made subject to his or her
supervision or jurisdiction. All powers, duties, rights and privileges vested in the division are hereby
vested in the commissioner. He or she shall be the chief executive officer of the division of banking
and is responsible for the division's organization, services and personnel and for the orderly and
efficient administration, enforcement and execution of the provisions of this chapter and all laws
vesting authority or powers in or prescribing duties or functions for the division or the commissioner.
(b) The commissioner shall:
(1) Maintain an office for the division and there keep a complete record of all the division's transactions, of the financial conditions of all financial institutions and records of the activities of
other persons as the commissioner considers important. Notwithstanding any other provision of this
code, heretofore or hereafter enacted, the records relating to the financial condition of any financial
institution and any information contained in the records shall be confidential for the use of the
commissioner and authorized personnel of the division of banking. No person shall divulge any
information contained in any records except as authorized in this subdivision in response to a valid
subpoena or subpoena duces tecum issued pursuant to law in a criminal proceeding or in a civil
enforcement action brought by the state or federal regulatory authorities. Subpoenas shall first be
directed to the commissioner, who shall authorize disclosure of relevant records and information
from the records for good cause, upon imposing terms and conditions considered necessary to protect
the confidential nature of the records, the financial integrity of the financial institution or the person
to which the records relate, and the legitimate privacy interests of any individual named in the
records. Conformity with federal procedures shall be sought where the institution maintains federal
deposit insurance. The commissioner has and may exercise reasonable discretion as to the time,
manner and extent the other records in his or her office and the information contained in the records
are available for public examination;
(2) Require all financial institutions to comply with all the provisions of this chapter and
other applicable laws, or any rule promulgated or order issued thereunder;
(3) Investigate all alleged violations of this chapter and all other laws which he or she is
required to enforce and of any rule promulgated or order issued thereunder; and
(4) Require a criminal background investigation, including fingerprint checks, of each: (A)
Applicant seeking approval to charter and/or control a state bank, state credit union, or a foreign bank state agency or representative office; (B) applicant seeking a license to engage in the business
of money transmission, currency exchange, or other activity regulated under article two, chapter
thirty-two-a of this code; (C) applicant subject to the commissioner's supervision seeking a license
to engage in the business of regulated consumer lending, mortgage lending or brokering; and (D)
division of banking financial institutions regulatory employee applicant, to be made through the
West Virginia state police and the federal bureau of investigation: Provided, That where the
applicant is a company or entity already subject to supervision and regulation by the federal reserve
board or other federal bank, thrift or credit union regulator, or is a direct or indirect subsidiary of a
company or entity subject to the supervision and regulation, or where the applicant is a company
subject to the supervision and regulation of the federal securities and exchange commission whose
stock is publicly traded on a registered exchange or through the national association of securities
dealers automated quotation system, or the applicant is a direct or indirect subsidiary of such a
company, the investigation into criminal background is not required. The provisions of this
subdivision are not applicable to applicants seeking interim bank charters organized solely for the
purpose of facilitating the acquisition of another bank pursuant to section five, article four of this
chapter: Provided, however, That where a nonexempt applicant under this subdivision is not a
natural person, the principals of the applicant are subject to the requirements of this subdivision. As
used in this subdivision, the term 'principals' means the chief executive officer, regardless of title,
managing partner if a partnership, members of the organizing group if no chief executive officer has
yet been appointed, trustee or other person controlling the conduct of the affairs of a licensee. A
person controlling ten percent or more of the stock of any corporate applicant shall be considered
to be a principal under this provision.
(c) In addition to all other authority and powers vested in the commissioner by provisions of
this chapter and other applicable laws, the commissioner may:
(1) Provide for the organization of the division and the procedures and practices of the
division and implement the procedures and practices by the promulgation of rules and forms as
appropriate and the rules shall be promulgated in accordance with article three, chapter twenty-nine-a
of this code;
(2) Employ, direct, discipline, discharge and establish qualifications and duties for all
personnel for the division, including, but not limited to, examiners, assistant examiners, conservators
and receivers, establish the amount and condition of bonds for the personnel he or she considers
appropriate and pay the premiums on the bonds and, if he or she elects, have all personnel subject
to and under the classified service of the state personnel division;
(3) Cooperate with organizations, agencies, committees and other representatives of financial
institutions of the state in connection with schools, seminars, conferences and other meetings to
improve the responsibilities, services and stability of the financial institutions;
(4) In addition to the examinations required by section six of this article, inspect, examine
and audit the books, records, accounts and papers of all financial institutions at such times as
circumstances in his or her opinion may warrant;
(5) Call for and require any data, reports and information from financial institutions under
his or her jurisdiction, at such times and in such form, content and detail considered necessary by
him or her in the faithful discharge of his or her duties and responsibilities in the supervision of the
financial institutions;
(6) Subject to the powers vested in the board by article three of this chapter, supervise the location, organization, practices and procedures of financial institutions and, without limitation on
the general powers of supervision of financial institutions, require financial institutions to:
(A) Maintain their accounts consistent with rules prescribed by the commissioner and in
accordance with generally accepted accounting practices;
(B) Observe methods and standards which he or she may prescribe for determining the value
of various types of assets;
(C) Charge off the whole or any part of an asset which at the time of his or her action could
not lawfully be acquired;
(D) Write down an asset to its market value;
(E) Record or file writings creating or evidencing liens or other interests in property;
(F) Obtain financial statements from prospective and existing borrowers;
(G) Obtain insurance against damage and loss to real estate and personal property taken as
security;
(H) Maintain adequate insurance against other risks as he or she may determine to be
necessary and appropriate for the protection of depositors and the public;
(I) Maintain an adequate fidelity bond or bonds on its officers and employees;
(J) Take other action that in his or her judgment is required of the institution in order to
maintain its stability, integrity and security as required by law and all rules promulgated by him or
her; and
(K) Verify any or all asset or liability accounts;
(7) Subject to the powers vested in the board by article three of this chapter, receive from any
person or persons and consider any request, petition or application relating to the organization, location, conduct, services, policies and procedures of any financial institution and to act on the
request, petition or application in accordance with any provisions of law applicable thereto;
(8) In connection with the investigations required by subdivision (3), subsection (b) of this
section, issue subpoenas and subpoenas duces tecum, administer oaths, examine persons under oath,
and hold and conduct hearings. Any subpoenas or subpoenas duces tecum shall be issued, served
and enforced in the manner provided in section one, article five, chapter twenty-nine-a of this code.
Any person appearing and testifying at a hearing may be accompanied by an attorney employed by
him or her;
(9) Issue declaratory rulings in accordance with the provisions of section one, article four,
chapter twenty-nine-a of this code;
(10) Study and survey the location, size and services of financial institutions, the geographic,
industrial, economic and population factors affecting the agricultural, commercial and social life of
the state and the needs for reducing, expanding or otherwise modifying the services and facilities of
financial institutions in the various parts of the state and compile and keep current data thereon to
aid and guide him or her in the administration of the duties of his or her office;
(11) Implement all of the provisions of this chapter, except the provisions of article three of
this chapter, and all other laws which he or she is empowered to administer and enforce by the
promulgation of rules in accordance with the provisions of article three, chapter twenty-nine-a of this
code;
(12) Implement the provisions of chapter forty-six-a of this code applicable to consumer
loans and consumer credit sales by the promulgation of rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code as long as the rules do not conflict with any rules promulgated by the state's attorney general;
(13) Foster and encourage a working relationship between the division of banking and
financial institutions, credit, consumer, mercantile and other commercial and finance groups and
interests in the state in order to make current appraisals of the quality, stability and availability of
the services and facilities of financial institutions;
(14) Provide to financial institutions and the public copies of the West Virginia statutes
relating to financial institutions, suggested drafts of bylaws commonly used by financial institutions
and any other forms and printed materials found by him or her to be helpful to financial institutions,
their shareholders, depositors and patrons and make reasonable charges for the copies;
(15) Delegate the powers and duties of his or her office, other than the powers and duties
excepted in this subdivision, to qualified division personnel who shall act under the direction and
supervision of the commissioner and for whose acts he or she is responsible, but the commissioner
may delegate to the deputy commissioner of banking and to no other division personnel the
following powers, duties and responsibilities, all of which are hereby granted to and vested in the
commissioner and for all of which the commissioner also is responsible. The commissioner shall:
(A) Order any person to cease violating any provision or provisions of this chapter or other
applicable law or any rule promulgated or order issued thereunder;
(B) Order any person to cease engaging in any unsound practice or procedure which may
detrimentally affect any financial institution or depositor of the financial institution;
including, but not limited to:
________(i) The business of making, arranging, acting as a middleman or brokering a cash advance
or loan to a borrower for a personal, family or household purpose pursuant to an agreement under which (I) a check or share draft is executed; (II) the check, share draft or authorization for debit is
capable of being presented or drawn on the date made or on some future date on a federally insured
financial institution; (III) the check or share draft is used as security or as any direct or indirect part
of the transaction for the advance, loan or extension of credit; and (IV) the payment of the check or
share draft is deferred.
________(ii) The provisions do not apply to: (I) a federally insured financial institution using accounts
or funds on deposit in the financial institution as security or collateral for a loan made by the same
institution holding the account or funds; (II) the use of a postdated check as purchase money in a
transaction which has as its primary purpose the bona fide purchase of bona fide goods or services;
________(iii) Engaging in this state in the business described in subparagraph (i) of this subdivision
occurs if: (I) a signed writing evidencing the obligation or application of the consumer is received
by the creditor in this state; or (II) the creditor induces the consumer who is a resident of this state
to enter into the transaction by solicitation in this state by any means, including but not limited to:
mail, telephone, radio, television, e-mail, pop-up web pages or any other electronic means: Provided,
That a loan that was solicited in this state as described in this paragraph is not a loan made in this
state if the consumer is physically present in another state when the consumer delivers a signed
writing to the creditor at its place of business in that other state;
________(iv) Any agreement in violation of subdivision (i) is void and unenforceable.
(C) Revoke the certificate of authority, permit or license of any financial institution except
a banking institution in accordance with the provisions of section thirteen of this article; and
(D) Accept an assurance in writing that the person will not in the future engage in the conduct
alleged by the commissioner to be unlawful, which could be subject to an order under the provisions of this chapter. This assurance of voluntary compliance shall not be considered an admission of
violation for any purpose, except that if a person giving the assurance fails to comply with its terms,
the assurance is prima facie evidence that prior to this assurance the person engaged in conduct
described in the assurance;
(16) Seek and obtain civil administrative penalties against any person who violates this
chapter, the rules issued pursuant to this chapter, or any orders lawfully entered by the commissioner
or board of banking and financial institutions in an amount not more than five thousand dollars per
day for each violation: Provided, That all of the pertinent provisions of article five, chapter twenty-
nine-a of this code shall apply to any assessment of a penalty under this subsection;
(17) Receive from state banking institutions applications to change the locations of their
principal offices and to approve or disapprove these applications;
(18) Expend funds in order to promote consumer awareness and understanding of issues
related to residential mortgage lending; and
(19) Take other action as he or she may consider necessary to enforce and administer the
provisions of this chapter, except the provisions of article three of this chapter, and all other laws
which he or she is empowered to administer and enforce and apply to any court of competent
jurisdiction for appropriate orders, writs, processes and remedies."
Delegate Staton then asked and obtained unanimous consent that the bill (S. B. 286) lie over
one day.
Com. Sub. for S. B. 431, Establishing Interstate Insurance Product Regulation Compact; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported by the Clerk and adopted, amending the bill on page forty-five, after line forty-seven, by inserting
the following:
"§33-47-15. Filing of rules by the insurance commissioner.
The insurance commissioner shall, pursuant to the provisions of section four, article three,
chapter twenty-nine-a of this code, file in the state register any rules or uniform standards which
have been adopted by the commission and have become effective in this state."
And,
By amending the enacting section to read as follows:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-47-6, §33-47-7, §33-47-
8, §33-47-9, §33-47-10, §33-47-11, §33-47-12, §33-47-13, §33-47-14, §33-47-15; §33-47-16 and
§33-47-17, all to read as follows" followed by a colon.
The bill was then ordered to third reading.
S. B. 631, Relating to state fertilizer law; on second reading, coming up in regular order, was
read a second time and ordered to third reading.
Com. Sub. for S. B. 694, Establishing Fairness in Competitive Bidding Act; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page four, section one, line thirty-five, following the word "The", by
striking out the words "public contracting entity shall not" and inserting in lieu thereof the words
"contracting public entity may not".
On page four, section one, line thirty-eight, following the word "the", by striking out the words "public contracting entity" and inserting in lieu thereof the words "contracting public entity"
On page four, section one, line forty-six, following the word "the", by striking out the words
"public contracting agency" and inserting in lieu thereof the words "contracting public entity".
On page four, section one, line forty-eight, following the word "inspection" and the period,
by inserting "(e)" and then relettering the remaining subsections.
And,
On page five, section one, line fifty-seven, following the word "code", by inserting the word
"and".
The bill was then ordered to third reading.
S. B. 697, Delegating motor carrier inspector duties to weight enforcement officers; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to engrossment and third reading:
H. B. 4752, Supplemental appropriation to the department of tax and revenue - division of
banking,
H. B. 4753, Supplemental appropriation to the department of environmental protection -
division of environmental protection - stream restoration fund,
H. B. 4754, Supplemental appropriation to the department of transportation - division of
motor vehicles,
H. B. 4755, Supplemental appropriation to a new item of appropriation designated the coal
heritage highway authority,
H. B. 4756, Supplemental appropriation to the West Virginia state board of examiners for licensed practical nurses,
H. B. 4757, Supplemental appropriation to the department of military affairs and public
safety - division of criminal justice services,
And,
H. B. 4758, Supplemental appropriation to the department of military affairs and public
safety - division of criminal justice services - juvenile accountability incentive.
H. B. 4759, Imposing an alternative minimum personal income tax for each taxable year on
the West Virginia taxable income of every individual meeting certain criteria; on second reading,
coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, laid
over until tomorrow.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 125, Permitting solicitation of certain state employees for contributions
to certain campaigns in local or county elections,
Com. Sub. for S. B. 161, Creating Model Health Plan for Uninsurable Individuals Act,
S. B. 200, Requiring state police to annually report to Legislature effectiveness of recruiting
minorities,
Com. Sub. for S. B. 454, Relating to land-use planning,
Com. Sub. for S. B. 502, Relating to rights of members of teachers defined contribution
retirement system,
S. B. 716, Allowing attorney general to retain additional funding for antitrust enforcement fund,
S. B. 718, Authorizing board of examiners of psychologists set fees by rule,
S. B. 722, Repealing section prohibiting giving away or selling liquor in buildings where
boxing is held,
H. B. 4760, Supplemental appropriation to the governor's office - office of economic
opportunity,
H. B. 4761, Supplemental appropriation to the department of agriculture - donated food fund,
And,
H. B. 4762, Supplemental appropriation to the department of military affairs and public
safety - office of emergency services.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day
were granted Delegate Coleman.
At 12:40 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:00 p.m.,
and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
On motion for leave, a resolution was introduced (Originating in the Committee on Banking and Insurance and reported with the recommendation that it be adopted), which was read by its title
and referred to the Committee on Rules:
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury,
Butcher, Morgan, Iaquinta, Foster, Walters, Azinger, Hartman and G. White:
H. C. R. 82 - "Requesting the Joint Committee on Government Finance to conduct a study
of the impact of credit card fraud upon businesses in West Virginia and means to ensure the effective
prosecution of these crimes."
Whereas, Many businesses in West Virginia accept credit cards; and
Whereas, Due to the nature of credit card transactions, there are instances when individuals
may fraudulently use credit cards to purchase products or services; and
Whereas, Credit card transactions which are conducted via the Internet or U.S. Mail are
particularly subject to credit card fraud; and
Whereas, Credit card fraud results in significant financial losses for West Virginia
businesses; and
Whereas, West Virginia businesses have an interest in exploring means of eliminating credit
card fraud; and
Whereas, Both citizens and businesses have an interest in ensuring that these actions are
prosecuted; and
Whereas, There may be instances where companies which issue credit cards may be able
to supply information to county prosecutors to help facilitate effective prosecution of these matters;
and
Whereas, Successful prosecution of crimes relating to credit card fraud can result in savings to consumers while at the same time fostering a stable business environment for West Virginia
companies; therefore, be it
Resolved by the Legislature of West Virginia
:
That the Joint Committee on Government and Finance is hereby directed to conduct a study
of the impact of credit card fraud on businesses in West Virginia and means to ensure the effective
prosecution of these crimes; and, be it
Further Resolved, That the Joint Committee on Government and Finance report its findings
and recommendations resulting from the study to the regular session of the Legislature, 2005,
together with drafts of any proposed legislation necessary to effectuate such recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
On motions for leave, resolutions were introduced (Originating in the Committee on Banking
and Insurance and reported with the recommendation that they each be adopted), which were read
by their titles and referred to the Committee on Rules:
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury,
Butcher, Frich, Morgan, Iaquinta, Foster, Walters, Azinger, Hartman and G. White:
H. C. R. 83 - "Requesting the Joint Committee on Government Finance to conduct a study
of the impact of nonrenewal laws on the availability and affordability of automobile and
homeowners' insurance in West Virginia."
Whereas, The availability and affordability of automobile and homeowners' insurance is a concern for citizens in West Virginia; and
Whereas, Certain national insurance companies offering insurance coverage have
announced that they will no longer be writing new business in the State; and
Whereas, The citizens of West Virginia and businesses may be adversely affected by their
inability to obtain both adequate and affordable coverage for their automobiles and homes; and
Whereas, The effective regulation of insurance is important to both insurers and citizens;
and
Whereas, The laws of this State governing the nonrenewal of automobile and homeowners'
insurance policies impact both insurers and consumers; and
Whereas, Both insurers and consumers would benefit from a study of the impact of the laws
of the State relating to restrictions on the nonrenewal of automobile and homeowner insurance
policies; and
Whereas, The consumers and insurers in West Virginia would benefit from a study to
determine the underlying factors affecting the availability and affordability of automobile coverage
and to determine the effect of state regulation on this industry; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study
of the impact of nonrenewal laws on the availability and affordability of automobile and
homeowners' insurance in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report its findings
and recommendations resulting from the study to the regular session of Legislature, 2005, together
with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
And,
By Delegates H. White, R. M. Thompson, Hrutkay, Perry, Perdue, Canterbury,
Butcher, Frich, Morgan, Iaquinta, Foster, Azinger, Hartman and G. White:
H. C. R. 84 - "Requesting the Joint Committee on Government Finance to conduct a study
of the impact of laws governing the filing and approval of rates and forms for insurance companies
in West Virginia."
Whereas, The availability and affordability of insurance is a concern for citizens in West
Virginia; and
Whereas, Many states are modernizing their laws which govern the filing requirements for
rates and forms; and
Whereas, Laws regulating the filing requirements for rates and forms can impact the cost
of an insurance product and hence adversely effect consumers; and
Whereas, The effective regulation of insurance is important to both insurers and citizens;
and
Whereas, Providing a streamlined method of rate and form filing may be a means of
encouraging insurance companies to enter the West Virginia market; and
Whereas, Both insurers and consumers would benefit from a study of the impact of the laws
of the State relating to the requirements for the filing and approval of rates and forms by the
insurance commissioner; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby directed to conduct a study
of the impact of laws governing the filing and approval of rates and forms for insurance companies
in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report its findings
and recommendations resulting from the study to the regular session of the Legislature, 2005,
together with drafts of any proposed legislation necessary to effectuate such recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Chairman Warner, from the Committee on Roads and Transportation, submitted the
following report, which was received:
Your Committee on Roads and Transportation has had under consideration:
Com. Sub. for S. B. 484, Requiring motor vehicle license plates contain yellow outline of
state,
And reports the same back, with the recommendation that it do pass, but that it first be
referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 484) was
referred to the Committee on Finance.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 418, Allowing certain sheriff employees to carry deadly weapons,
And,
Com. Sub. for S. B. 556, Exempting retailers of automobiles and trucks from definition of
credit services organizations,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, S. B. 418 will be placed on the Consent Calendar.
At the respective requests of Delegate Staton, and by unanimous consent, Com. Sub for S.
B. 556 was taken up for immediate consideration, read a first time, ordered to second reading and
then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 320, Relating to division of motor vehicles application for certificate
of title; exempting modular homes,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, and with the recommendation that second reference
of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (Com. Sub. for S. B. 320) to the Committee
on Finance was abrogated.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 320) will be placed on the
Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 505) will be placed on the
Consent Calendar.
On motion for leave, a resolution was introduced (Originating in the Committee on
Government Organization and reported with the recommendation that it be adopted), which was read
by its title and referred to the Committee on Rules:
By Delegates Beane, Ennis, Butcher, Iaquinta, Louisos, Manchin, Manuel, Martin,
Perdue, Spencer, Talbott, Wright, Yeager, Yost, Leggett, Azinger, Blair and Frich:
H. C. R 85 - "Requesting that the Joint Committee on Government and Finance study
complaints regarding home improvement contractors, home building contractors and other
complaints against contractors and possible changes to the complaint process and other laws to
remedy the problems of affected citizens."
Whereas, The West Virginia Department of Labor's authority over, and available sanctions against, unlicensed contractors is very limited; and
Whereas, Home repair complaints are the most frequent complaints that the citizens of this
State make against both unlicensed and licensed contractors; and
Whereas, The legal remedies available to consumers are limited regarding applicable
penalties against persons without a contractor's license; and
Whereas, Home improvement contractors who violate existing law, or fail to provide a
written contract, or fail to substantially perform the work and commit other violations, substantially
discredit and place at a professional disadvantage reputable licensed contractors; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby directed to study complaints
against the practice of home improvement contractors and home building contractors, and potential
legal remedies to address the problems of adversely affected citizens; and, be it
Further Resolved, That Joint Committee on Government and Finance shall report to the
Legislature on or before the eighth day of January 2005, on its findings, conclusions and
recommendations, and shall submit drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
S. B. 717, Terminating agencies following full performance evaluations,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (S. B. 717) will be placed on the Consent Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
S. B. 574, Allowing commissioner to sell liquor warehouse under certain circumstances,
And reports the same back with the recommendation that it do pass.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 271, Relating to racial profiling data collection,
And reports the same back without recommendation as to its passage.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 271) was taken up for immediate consideration, read a first time, ordered to second reading
and then recommitted to the Committee on the Judiciary.
Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following
report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 10th
day of March, 2004, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(H. B. 4286), Repealing the section of the code relating to coverage for alcoholic treatment
because it is superseded by another part of the code,
(H. B. 4449), Allowing both residents and nonresidents to apply for and obtain a Class Q
permit for disabled persons,
And,
(H. B. 4560), Requiring that firefighters and security guards employed by the adjutant general
of the national guard be members of the national guard.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 121, Relating to powers of investment management board; other
provisions,
Com. Sub. for S. B. 139, Creating Tourism Development Act,
S. B. 148, Creating Tax Amnesty Program of 2004,
Com. Sub. for S. B. 221, Establishing Public-Private Transportation Facilities Act of 2004,
Com. Sub. for S. B. 408, Relating generally to levies by county boards of education and
expenditure of property taxes collected,
Com. Sub. for S. B. 516, Establishing eastern panhandle highway authority,
Com. Sub. for S. B. 653, Providing that certain judges not required to contribute to
retirement system,
S. B. 678, Providing reduced tax rate applies to certain underground mines,
Com. Sub. for S. B. 700, Requiring state agencies make timely payments for
telecommunications services; other provisions,
And,
Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities,
And reports the same back, without recommendation as to their passage, but with the
recommendation that they each be recommitted to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com.
Sub. for S. B. 121, Com. Sub. for S. B. 139, S. B. 148, Com. Sub. for S. B. 221, Com. Sub. for S.
B. 408, Com. Sub. for S. B. 516, Com. Sub. for S. B. 653, S. B. 678, Com. Sub. for S. B. 700 and
Com. Sub. for S. B. 701) were each taken up for immediate consideration, read a first time, ordered
to second reading and then recommitted to the Committee on Finance.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system,
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of
racetrack video lottery terminals,
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance
policies,
And,
S. B. 673, Relating to reporting requirements on coal resource transportation roads,
And reports the same back, with amendment, with the recommendation that they each do pass, as amended.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on has had under consideration:
Com. Sub. for S. B. 149, Relating generally to department of tax and revenue,
And,
Com. Sub. for S. B. 204, Relating to strategic research and development tax credit,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bills (Com. Sub. for S. B. 149 and Com. Sub. for 204)
will be placed on the Consent Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 230, Relating to definitions of casualty insurance and federal flood
insurance; other provisions,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 230) will be placed on the
Consent Calendar.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 675, Relating to outdoor advertising revenues,
And reports the same back with the recommendation that it do pass.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
H. B. 4107, Allowing licensees of charitable bingo and raffle games to transfer game
proceeds between their bingo and raffle operations.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Fanning, Minard and McKenzie.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Kominar, Stemple and Schadler.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4168, Requiring lenders to have the funds for mortgage loans available
at the appropriate time.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §31-17-2 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be further amended by adding thereto a new article, designated §46A-6K-1, §46A-
6K-2, §46A-6K-3, §46A-6K-4 and §46A-6K-5, all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 17. WEST VIRGINIA RESIDENTIAL MORTGAGE LENDER, BROKER AND
SERVICER ACT.
§31-17-2. License required for lender, broker or loan originator; exemptions.
(a) No person shall engage in this state in the business of lender, broker or loan originator
unless and until he or she shall first obtain a license to do so from the commissioner, which license
remains unexpired, unsuspended and unrevoked, and no foreign corporation shall engage in business
in this state unless it is registered with the secretary of state to transact business in this state.
(b) Brokerage fees, additional charges and finance charges imposed by licensed mortgage
brokers, lenders and loan originators are exempt from the tax imposed by article fifteen, chapter eleven of this code beginning on the first day of January, two thousand four.
_____(b) (c) The provisions of this article do not apply to loans made by the following:
(1) Federally insured depository institutions;
(2) Regulated consumer lender licensees;
(3) Insurance companies;
(4) Any other lender licensed by and under the regular supervision and examination for
consumer compliance of any agency of the federal government;
(5) Any agency or instrumentality of this state, federal, county or municipal government or
on behalf of the agency or instrumentality;
(6) By a nonprofit community development organization making mortgage loans to promote
home ownership or improvements for the disadvantaged which loans are subject to federal, state,
county or municipal government supervision and oversight; or
(7) Habitat for humanity international, inc., and its affiliates providing low-income housing
within this state.
Loans made subject to this exemption may be assigned, transferred, sold or otherwise
securitized to any person and shall remain exempt from the provisions of this article, except as to
reporting requirements in the discretion of the commissioner where the person is a licensee under
this article. Nothing herein shall prohibit a broker licensed under this article from acting as broker
of an exempt loan and receiving compensation as permitted under the provisions of this article.
(c)(d) A person or entity designated in subsection (b) (c) of this section may take assignments
of a primary or subordinate mortgage loan from a licensed lender and the assignments of said loans
that they themselves could have lawfully made as exempt from the provisions of this article under this section do not make that person or entity subject to the licensing, bonding, reporting or other
provisions of this article except as the defense or claim would be preserved pursuant to section one
hundred two, article two, chapter forty-six-a of this code.
(d)(e) The placement or sale for securitization of a primary or subordinate mortgage loan into
a secondary market by a licensee may not subject the warehouser or final securitization holder or
trustee to the provisions of this article: Provided, That the warehouser, final securitization holder
or trustee under an arrangement is either a licensee, or person or entity entitled to make exempt loans
of that type under this section, or the loan is held with right of recourse to a licensee.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 6K. GOOD FUNDS SETTLEMENT ACT.
§46A-6K-1. Applicability.
This article applies to the settlement of loans secured by deeds of trust on owner-occupied
residential dwellings with accommodations for not more than four families. This article does not
apply to construction loans or any other loans which, by agreement of the parties, provide for the
disbursement of the proceeds in stages.
§46A-6K-2. Definitions.
(a) 'Collected funds' or 'good funds' means moneys used to fund the disbursement of
settlement proceeds deposited and irrevocably credited to a settlement agent's account.
(b) 'Disbursement of loan funds' means the delivery of the loan funds by the lender to the
settlement agent in the form of:
(1) Cash;
(2) Wired funds;
(3) Certified check;
(4) Checks issued by the United States treasury, the state of West Virginia or an
instrumentality of the United States or state of West Virginia;
(5) Cashier's check or teller's check or other similar draft or obligation of a federally insured
bank, savings bank, savings and loan association or credit union or of any holding company or
wholly owned subsidiary of the foregoing;
(6) Checks issued by a licensed lender qualified to do business in West Virginia which has
posted the surety bond required by subsection (b), section four, article seventeen, chapter thirty-one
of this code;
(7) Checks issued by an insurance company licensed and regulated by the West Virginia
insurance commission, which checks are drawn on a federally insured financial institution;
(8) Checks drawn on the escrow account of an attorney licensed to practice law in West
Virginia or on the escrow account of a real estate broker licensed in West Virginia; or
(9) Personal check or checks in an aggregate amount not exceeding five thousand dollars per
loan closing.
(c) 'Disbursement of settlement proceeds' means the payment of all proceeds of the
transaction by the settlement agent to the persons entitled thereto.
(d) 'Lender' means any person regularly engaged in making loans secured by deeds of trust
to secure debt on West Virginia real estate. A person is considered to be regularly engaged in
making loans if he or she makes more than five such loans in any one calendar year.
(e) 'Loan closing' means that time agreed upon by the borrower, lender, seller, if applicable, and settlement agent when the execution by the borrower and delivery of the loan documents to the
settlement agent occur.
(f) 'Loan documents' means the note evidencing the debt due the lender, the deed of trust,
or mortgage securing the debt due to the lender, and any other documents required by the lender to
be executed by the borrower as a part of the transaction.
(g) 'Loan funds' means the gross or net proceeds of the loan to be disbursed by or on behalf
of the lender at loan closing.
(h) 'Parties', as used in this subsection, means the seller, purchaser, borrower, lender and the
settlement agent, as applicable.
(i) 'Settlement' means the time when the settlement agent has received the duly executed
deed, loan funds, loan documents and other documents and funds required to carry out the terms of
the contract between the parties.
(j) 'Settlement agent' means the person authorized by law to be responsible for conducting
the settlement and disbursement of the settlement proceeds.
§46A-6K-3. Duty of lender.
The lender shall, at or before loan closing, cause disbursement of loan funds to the settlement
agent; however, in the case of a refinancing, or any other loan where a right of rescission applies, the
lender shall, within one business day after the expiration of the rescission period required under the
federal Truth-in-Lending Act (15 U. S. C. §1601 et seq.), cause disbursement of loan funds to the
settlement agent, unless the loan is rescinded by the customer. All funds disbursed by the lender to
the settlement agent must be collected funds. The lender is not entitled to receive or charge any
interest on the loan until disbursement of loan funds and loan closing has occurred.
§46A-6K-4. Validity of loan documents.
Failure to comply with the provisions of this article does not affect the validity or
enforceability of any loan documents executed.
§46A-6K-5. Penalty.
Any persons suffering losses due to the failure of the lender or the settlement agent to
disburse settlement proceeds as required by this chapter shall be entitled to recover, in addition to
other actual damages, double the amount of any interest collected in violation of section three of this
article plus reasonable attorneys' fees incurred in the collection thereof."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4168 - "A Bill to amend §31-17-2 of the code of West Virginia, 1931,
as amended; and to amend said code by adding thereto a new article, designated §46A-6K-1, §46A-
6K-2, §46A-6K-3, §46A-6K-4 and §46A-6K-5, all relating to mortgage loans; exempting mortgage
loan closing costs from consumer sales and service tax levied on brokerage fees, additional charges
and finance charges; requiring that funds are available for settlement of a real estate mortgage
transaction; defining applicability of the law; providing definition of terms used; establishing duty
of lender; maintaining validity of loan documents; and providing a penalty for violations of the
article."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 482), and there were--yeas
95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Long.
Absent And Not Voting: Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4168) passed.
Delegate Long submitted a statement to the Clerk stating that he had erroneously voted
"Nay" on the passage of the bill and that he had intended to vote "Yea" thereon.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4248, Continuing the office of environmental advocate.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4373, Making it a crime to alter a traffic-control device with an infrared
or electronic device.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. TRAFFIC SIGNS, SIGNALS AND MARKINGS.
§17C-3-10. Interference with official traffic-control devices by infrared or electronic devices.
(a) The possession or use of a mobile infrared transmitter (MIRT), or any type of infrared or
electronic device capable of changing a traffic control signal, by anyone other than the operator of
an authorized emergency vehicle, is prohibited.
(b) Any person violating the provisions of subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or
confined in the county or regional jail not more than three days, or both; and upon a second
conviction thereof, shall be fined not more than one thousand dollars or confined in the county or
regional jail not more than six days, or both; and upon a third or subsequent conviction thereof, shall
be fined not less than five hundred dollars nor more than two thousand five hundred dollars or
confined in a county or regional jail one year, or both.
(c) Notwithstanding the provisions of subsection (a) of this section, any person convicted of
a violation of subsection (a) of this section which results in physical injury to another shall be guilty
of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than
one nor more than three years or fined not more than five thousand dollars, or both.
(d) The provisions of this section shall not apply to any device which simply makes a vehicle
visible or its presence known to a sensor which triggers the changing of a traffic light after the
vehicle operator has complied with the traffic signal indication."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4373 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §17C-3-10, relating to making it a crime to possess or use a traffic-control device with an infrared or electronic device designed to change traffic light
indication; exceptions; and providing for penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 483), and there were--yeas
95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4373) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4491, Relating to mine inspectors and instructors employed by the
office of miners' health, safety and training.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, section nine, lines nineteen through twenty-one, by striking out the words "and
who has been a supervisor on a working section for at least three years".
On page eight, section nine, line fifty-eight, following the word "of", by inserting the word "their".
On page twelve, section twelve, line twelve, following the word "years", by inserting the
words "of which have been".
On page sixteen, section twelve, lines seventy-nine and eighty, by striking out the words "his
or her" and inserting in lieu thereof the word "the".
And,
On page nineteen, section thirteen, line ten, following the word "years", by inserting the
words "of which have been".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 484), and there were--yeas
95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4491) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 4601, Relating to public education generally.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18-9A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code be amended and
reenacted, all to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.
The allowance in the foundation school program for each county for transportation shall be
the sum of the following computations:
(1) Eighty-five percent of the transportation cost within each high-density county and ninety
percent of the transportation cost within each low-density county for maintenance, operation and
related costs, exclusive of all salaries: Provided, That for the school year beginning the first day of
July, one thousand nine hundred ninety-eight, and thereafter, in the event a for any county that uses
an alternative fuel such as compressed natural gas or other acceptable alternative fuel for the
operation of all or any portion of its school bus system, then the allowance in the foundation school
program for each such the county for that portion of its school bus system shall be ninety-five
percent of the transportation cost for maintenance, operation and related costs, exclusive of all
salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any
county using an alternative fuel and qualifying for the additional allowance shall submit a plan
regarding the intended future use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation: Provided, That such the premiums were procured through
competitive bidding;
(3) For the school year beginning the first day of July, one thousand nine hundred ninety-
nine, and thereafter, an An amount equal to eight and one-third percent of the current replacement
value of the bus fleet within each county as determined by the state board. such The amount to be
used only shall only be used for the replacement of buses. Buses purchased after the first day of July,
one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles,
regardless of year model, will be subject to the replacement value of eight and one-third percent as
determined by the state board: Provided, That for the school year beginning on the first day of July,
two thousand four, only, the allowance in the foundation school program for each county for
transportation shall not include an amount for the replacement of buses. In addition, in any school
year in which its net enrollment increases when compared to the net enrollment the year immediately
preceding, a school district may apply to the state superintendent for funding for an additional bus.
The state superintendent shall make a decision regarding each application based upon an analysis
of the individual school district's net enrollment history and transportation needs: Provided,
however, That the superintendent shall not consider any application which fails to document that the
county has applied for federal funding for additional buses. If the state superintendent finds that a
need exists, a request for funding shall be included in the budget request submitted by the state board
for the upcoming fiscal year;
(4) Eighty-five percent of the cost of contracted transportation services and public utility
transportation within each high-density county and ninety percent of the cost of contracted
transportation services and public utility transportation within each low-density county;
(5) Aid in lieu of transportation equal to the state average amount per pupil for each pupil
receiving such the aid within each county; and
(6) Ninety-five percent of the transportation cost for maintenance, operation and related costs,
exclusive of all salaries, for transporting students to and from classes at a multicounty vocational
center.
The total state share for this purpose shall be the sum of the county shares: Provided, That
no county shall receive an allowance which is greater than one-third above the computed state
average allowance per transportation mile multiplied by the total transportation mileage in the
county: Provided, however, That one half of one percent of the transportation allowance distributed
to each county shall be for the purpose of trips related to academic classroom curriculum and not
related to any extracurricular activity: Provided further, That for the school year beginning on the
first day of July, two thousand four, only, the transportation allowance of each county shall include
an allocation for the purpose of trips related to academic classroom curriculum and not related to any
extracurricular activity. The allocation shall equal the amount distributed to the county for this
purpose in the school year beginning on the first day of July, two thousand three: And provided
further, That any remaining funds credited to a county for the purpose of trips related to academic
classroom curriculum during the fiscal year shall be carried over for use in the same manner the next
fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next
fiscal year: And provided further, That the state board may request a county to document the use of
funds for trips related to academic classroom curriculum if the board deems it determines that it is
necessary.
The state department of education shall cause a comprehensive study to be made relating to student transportation. The study shall examine, but is not limited to, the issues of funding,
timeliness of data used for formula distribution, service personnel needed, inter-county service,
regionalization of services, bus routes, amount of time students spend on buses, maintenance, safety
training, and alternative transportation systems. The state department of education shall submit a
report of the study to the legislative oversight commission on education accountability by the
fifteenth day of January, one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.
The following terms, wherever used or referred to in this article, have the following meanings
unless a different meaning clearly appears from the context:
(1) 'Authority' means the school building authority of West Virginia or, if said the authority
shall be is abolished, any board or officer succeeding to the principal functions thereof of the school
building authority or to whom the powers given to said the authority shall be are given by law;
(2) 'Bonds' means bonds issued by the authority pursuant to this article;
(3) 'Construction project' means a project in the furtherance of a facilities plan with a cost
of the project greater than five hundred thousand dollars for the new construction, expansion or
major renovation of facilities, buildings and structures for school purposes, including the acquisition
of land for current or future use in connection therewith with the construction project, as well as new
or substantial upgrading of existing equipment, machinery, furnishings, installation of utilities and
other similar items convenient in connection with placing the foregoing construction project into
operation: Provided, That a construction project may not include such items as books, computers
or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily
deemed considered to result in a current or ordinary course of business operating charge: Provided,
however, That a construction project may not include a major improvement project;
(4) 'Cost of project' means the cost of construction, expansion, renovation, repair and safety
upgrading of facilities, buildings and structures for school purposes; the cost of land, equipment,
machinery, furnishings, installation of utilities and other similar items convenient in connection with
placing the foregoing project into operation; and the cost of financing, interest during construction,
professional service fees and all other charges or expenses necessary, appurtenant or incidental to
the foregoing, including the cost of administration of this article;
(5) 'Facilities plan' means the a ten-year countywide comprehensive educational facilities
plan established by the county board in accordance with guidelines adopted by the authority to meet
the goals and objectives of this article that: (i) Addresses the existing school facilities and facility
needs of the county to provide a thorough and efficient education in accordance with the provisions
of this code and policies of the state board; (ii) best serves the needs of the individual student, the
general school population and the communities served by the facilities; (iii) includes a school major
improvement plan as defined in this section; (iv) is updated annually to reflect projects completed,
current enrollment projections and new or continuing needs; and (v) is approved by the state board
and the authority for school facilities required prior to the distribution of state funds pursuant to this
article to any county board or other entity applying for funds; pursuant to subsection (a), section
sixteen of this article;
(6) 'Project' means a construction project or a major improvement project;
(7) 'Region' means the area encompassed within and serviced by a regional educational service agency established pursuant to section twenty-six, article two of this chapter;
(8) 'Revenue' or 'revenues' means moneys deposited in the school building capital
improvements fund pursuant to the operation of section ten, article nine-a of this chapter; moneys
deposited in the school construction fund pursuant to the operation of section thirty, article fifteen,
chapter eleven of this code and pursuant to the operation of section eighteen, article twenty-two,
chapter twenty-nine of this code; moneys deposited in the school building debt service fund pursuant
to section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the
school major improvement fund pursuant to the operation of section thirty, article fifteen, chapter
eleven of this code; any moneys received, directly or indirectly, from any source for use in any
project completed pursuant to this article; and any other moneys received by the authority for the
purposes of this article;
(9) 'School major improvement plan' means the a ten-year school maintenance plan to be
that: (i) Is prepared by each a county board of education in accordance with the guidelines
established by the authority and incorporated in its countywide comprehensive educational facilities
plan or is prepared by the state board of education or the administrative council of an area vocational
educational center in accordance with the guidelines if such entity seeks the entities seek funding
from the authority for a major improvement project; which school major improvement plan (ii)
addresses the regularly scheduled maintenance for all school facilities of the county or under the
jurisdiction of the entity seeking funding; (iii) includes a projected repair and replacement schedule
for all school facilities of the county or of entity seeking funding; (iv) addresses the major
improvement needs of each school within the county or under the jurisdiction of the entity seeking
funding; and (v) is required prior to the distribution of state funds for a major improvement project pursuant to subsection (b), section sixteen of this article to the county board, state board or
administrative council; and
(10) 'School major improvement project' means a project with a cost greater than fifty
thousand dollars and less than five hundred thousand dollars for the renovation, expansion, the repair
and safety upgrading of existing school facilities, buildings and structures, including the substantial
repair or upgrading of equipment, machinery, building systems, utilities and other similar items
convenient in connection with such renovation, repair or upgrading in the furtherance of a school
major improvement plan: Provided, That a major improvement project may not include such items
as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility
services fees, routine maintenance costs, ordinary course of business improvements and other items
which are customarily deemed considered to result in a current or ordinary course of business
operating charge.
§18-9D-6. School building capital improvements fund in state treasury; school construction
fund in state treasury; school building debt service fund in state treasury;
school improvement fund in state treasury; collections to be paid into
special funds; authority to pledge the collections as security for refunding
revenue bonds; authority to finance projects on a cash basis.
(a) There is continued in the state treasury a school building capital improvements fund to
be expended by the authority as provided in this article. The school building capital improvements
fund shall be an interest-bearing account with interest credited to and deposited in the school
building capital improvements fund and expended in accordance with the provisions of this article.
The school building authority may pledge all or any part of the revenues paid into the school building capital improvements fund that are needed to meet the requirements of any revenue bond
issue or issues authorized by this article prior to the twentieth day of July, one thousand nine hundred
ninety-three, or revenue bonds issued to refund revenue bonds issued prior to that date, including the
payment of principal of, interest and redemption premium, if any, on the revenue bonds and the
establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest
and redemption premium, if any, on the revenue bond issue or issues when other moneys pledged
may be insufficient for the payment of the principal, interest and redemption premium, including any
additional protective pledge of revenues that the authority in its discretion has provided by resolution
authorizing the issuance of the bonds or in any trust agreement made in connection with the bond
issue. Additionally, the authority may provide in the resolution and in the trust agreement for
priorities on the revenues paid into the school building capital improvements fund that are necessary
for the protection of the prior rights of the holders of bonds issued at different times under the
provisions of this article.
Any balance remaining in the school building capital improvements fund after the authority
has issued bonds authorized by this article and after the requirements of all funds, including reserve
funds established in connection with the bonds issued prior to the twentieth day of July, one
thousand nine hundred ninety-three, pursuant to this article have been satisfied may be used for the
redemption of any of the outstanding bonds issued under this article which by their terms are then
redeemable, or for the purchase of the bonds at the market price, but not exceeding the price, if any,
at which the bonds are in the same year redeemable and all bonds redeemed or purchased shall
immediately be canceled and shall not again be issued.
The school building authority, in its discretion, may use the moneys in the school building capital improvements fund to finance the cost of projects authorized in accordance with the
provisions of section sixteen of this article on a cash basis. Any pledge of moneys in the fund for
revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, is
a prior and superior charge on the fund over the use of any of the moneys in the fund to pay for the
cost of any project on a cash basis: Provided, That any expenditures from the fund, other than for
the retirement of revenue bonds, may only be made by the authority in accordance with the
provisions of this article.
(b) There is continued in the state treasury a special revenue fund named the school building
debt service fund into which shall be deposited the amounts specified in section eighteen, article
twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged
to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds
or refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be
pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand
nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding
revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four.
Additionally, the authority may provide in the resolution and in the trust agreement for priorities on
the revenues paid into the school building debt service fund that are necessary for the protection of
the prior rights of the holders of bonds issued at different times under the provisions of this article.
On or prior to the first day of May of each year, the authority shall certify to the state lottery director
the principal and interest and coverage ratio requirements for the following fiscal year on any
revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, and
for which moneys deposited in the school building debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
After the authority has issued bonds authorized by this article and after the requirements of
all funds have been satisfied, including coverage and reserve funds established in connection with
the bonds issued pursuant to this article, any balance remaining in the school building debt service
fund may be used for the redemption of any of the outstanding bonds issued under this article which,
by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price,
but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or
purchased shall be immediately canceled and shall not again be issued: Provided, That after the
authority has issued bonds authorized by this article and after the requirements of debt service and
all associated funds have been satisfied for the fiscal year, including coverage and reserve funds
established in connection with the bonds issued pursuant to this article, any remaining balance in the
school building debt service fund may be transferred to the school construction fund created in
subsection (c) of this section and used by the school building authority in its discretion to finance
the cost of school construction or improvement projects authorized in accordance with the provisions
of section sixteen of this article on a cash basis.
(c) There is continued in the state treasury a special revenue fund named the school
construction fund into which shall be deposited the amounts specified in section thirty, article fifteen,
chapter eleven of this code and section eighteen-a, article twenty-two, chapter twenty-nine of this
code, together with any moneys appropriated to the fund by the Legislature: Provided, That for the
school year beginning the first day of July, two thousand and four, only, funds from the excess lottery
allocated in section eighteen-a, article twenty-two, chapter twenty-nine of this code shall not be
transferred to the school construction fund and, in lieu thereof, made available for legislative appropriation. Expenditures from the school construction fund shall be for the purposes set forth
in this article, including lease-purchase payments under agreements made pursuant to subsection (e),
section fifteen of this article and section nine, article five of this chapter and are authorized from
collections in accordance with the provisions of article three, chapter twelve of this code and from
other revenues annually appropriated by the Legislature from lottery revenues as authorized by
section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set
forth in article two, chapter five-a of this code. Amounts collected which are found, from time to
time, to exceed the funds needed for purposes set forth in this article may be transferred to other
accounts or funds and redesignated for other purposes by appropriation of the Legislature. The
school construction fund shall be an interest-bearing account, with the interest credited to and
deposited in the school construction fund and expended in accordance with the provisions of this
article. Deposits to and expenditures from the school construction fund are subject to the provisions
of subsection (i), subsection (k), section fifteen of this article.
(d) There is continued in the state treasury a special revenue fund named the school major
improvement fund into which shall be deposited the amounts specified in section thirty, article
fifteen, chapter eleven of this code, together with any moneys appropriated to the fund by the
Legislature. Expenditures from the school major improvement fund shall be for the purposes set
forth in this article and are authorized from collections in accordance with the provisions of article
three, chapter twelve of this code and from other revenues annually appropriated by the Legislature
from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of
this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts
collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by
appropriation of the Legislature. The school major improvement fund shall be an interest-bearing
account, with interest being credited to and deposited in the school major improvement fund and
expended in accordance with the provisions of this article.
(e) The Legislature finds and declares that the supreme court of appeals of West Virginia has
held that the issuance of additional revenue bonds authorized under the school building authority act,
as enacted in this article prior to the twentieth day of July, one thousand nine hundred ninety-three,
constituted an indebtedness of the state in violation of section four, article X of the constitution of
West Virginia, but that revenue bonds issued under this article prior to the twentieth day of July, one
thousand nine hundred ninety-three, are not invalid. The Legislature further finds and declares that
the financial capacity of a county to construct, lease and improve school facilities depends upon the
county's bonding capacity (local property wealth), voter willingness to pass bond issues and the
county's ability to reallocate other available county funds instead of criteria related to educational
needs or upon the ability of the school building authority created in this article to issue bonds that
comply with the holding of the West Virginia supreme court of appeals or otherwise assist counties
with the financing of facilities construction and improvement. The Legislature further finds and
declares that this section, as well as section eighteen, article twenty-two, chapter twenty-nine of this
code, have been reenacted during the first extraordinary session of the West Virginia Legislature in
the year one thousand nine hundred ninety-four in an attempt to comply with the holding of the
supreme court of appeals of West Virginia.
The Legislature further finds and declares that it intends, through the reenactment of this
section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate a source of state revenues to special revenue funds for the purposes of paying the debt service on
bonds and refunding bonds issued subsequent to the first day of January, one thousand nine hundred
ninety-four, the proceeds of which will be used for the construction and improvement of school
building facilities. The Legislature further finds and declares that it intends, through the reenactment
of this section and section thirty, article fifteen, chapter eleven of this code and section eighteen,
article twenty-two, chapter twenty-nine of this code, to appropriate revenues to two special revenue
funds for the purposes of construction and improvement of school building facilities. Furthermore,
the Legislature intends to encourage county boards to maintain existing levels of county funding for
construction, improvement and maintenance of school building facilities and to generate additional
county funds for those purposes through bonds and special levies whenever possible. The
Legislature further encourages the school building authority, the state board and county boards of
education to propose uniform project specifications for comparable projects whenever possible to
meet county needs at the lowest possible cost.
The Legislature further finds and declares that it intends, through the reenactment of this
section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply with
the provisions of sections four and six, article X of the constitution of West Virginia; and section
one, article XII of said constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
(a) The maximum aggregate face value of bonds that may be issued by the authority, for
which the moneys in the school building debt service fund are to be pledged, is four hundred million
dollars. The issuance of revenue bonds under the provisions of this article shall be authorized, from
time to time, by resolution or resolutions of the school building authority which shall set forth the proposed projects authorized in accordance with the provisions of section sixteen of this article and
provide for the issuance of bonds in amounts sufficient, when sold as hereinafter provided in this
section, to provide moneys considered sufficient by the authority to pay the costs, less the amounts
of any other funds available for the costs or from any appropriation, grant or gift for the costs:
Provided, That bond issues from which bond revenues are to be distributed in accordance with
section fifteen of this article shall for projects authorized pursuant to the provisions of section sixteen
of this article are not be required to set forth the proposed projects in the resolution. The resolution
shall prescribe the rights and duties of the bondholders and the school building authority and, for that
purpose, may prescribe the form of the trust agreement hereinafter referred to in this section. The
bonds may be issued, from time to time, in such amounts; shall be of such series; bear such date or
dates; mature at such time or times not exceeding forty years from their respective dates; bear interest
at such rate or rates; be in such denominations; be in such form, either coupon or registered, carrying
such registration, exchangeability and interchangeability privileges; be payable in such medium of
payment and at such place or places within or without the state; be subject to such terms of
redemption at such prices not exceeding one hundred five percent of the principal amount of the
bonds; and be entitled to such priorities on the revenues paid into the fund pledged for repayment
of the bonds as may be provided in the resolution authorizing the issuance of the bonds or in any
trust agreement made in connection with the bonds: Provided, however, That revenue bonds issued
on or after the first day of January, one thousand nine hundred ninety-four, which are secured by
lottery proceeds shall mature at such time or times not exceeding ten years from their respective
dates.
(b) The bonds shall be signed by the governor, and by the president or vice president of the authority, under the great seal of the state, attested by the secretary of state, and the coupons attached
to the bonds shall bear the facsimile signature of the president or vice president of the authority. In
case any of the officers whose signatures appear on the bonds or coupons cease to be officers before
the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes
the same as if such the officers had remained in office until such the delivery. The revenue bonds
shall be sold in the manner determined by the authority to be for the best interests of the state.
(c) Any pledge of revenues made by the school building authority for revenue bonds issued
prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article
is valid and binding between the parties from the time the pledge is made; and the revenues pledged
shall immediately be subject to the lien of the pledge without any further physical delivery thereof
of the revenues pledged or further act. The lien of the pledge is valid and binding against all parties
having claims of any kind in tort, contract or otherwise, irrespective of whether the parties have
notice of the lien of the pledge, and the pledge shall be a prior and superior charge over any other
use of the revenues pledged.
(d) The proceeds of any bonds shall be used solely for the purpose or purposes as may be
generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed
in the manner and with the restrictions, if any, that the authority provides in the resolution
authorizing the issuance of the bonds or in the trust agreement hereinafter referred to in this section
securing the same bonds. If the proceeds of the bonds, by error in calculations or otherwise, are less
than the cost of any projects specifically set forth in the resolution, additional bonds may in like
manner be issued to provide the amount of the deficiency; and unless otherwise provided for in the
resolution or trust agreement hereinafter mentioned, the additional bonds shall be considered to be of the same issue and are entitled to payment from the same fund, without preference or priority, as
the bonds before issued for the projects. If the proceeds of bonds issued for the projects specifically
set forth in the resolution authorizing the bonds issued by the authority exceed the cost of the bonds,
the surplus may be used for any other projects determined by the school building authority authorized
in accordance with the provisions of section sixteen of this article or in any other manner that the
resolution authorizing the bonds provides. Prior to the preparation of definitive bonds, the authority
may, under like restrictions, issue temporary bonds with or without coupons, exchangeable for
definitive bonds upon the issuance of the definitive bonds.
(e) After the issuance of any of revenue bonds, the revenues pledged for the revenue bonds
shall not be reduced as long as any of the revenue bonds are outstanding and unpaid except under
the terms, provisions and conditions that are contained in the resolution, trust agreement or other
proceedings under which the revenue bonds were issued.
(f) The revenue bonds and the revenue refunding bonds and bonds issued for combined
purposes, together with the interest on the bonds, are exempt from all taxation by the state of West
Virginia, or by any county, school district, municipality or political subdivision thereof.
(g) To meet the operational costs of the school building authority, the school building
authority may transfer to a special revenue account in the state treasury interest on any debt service
reserve funds created within any resolution authorizing the issue of bonds or any trust agreement
made in connection with the bonds for expenditure in accordance with legislative appropriation or
allocation of appropriation.
(h) Any school construction bonds issued under this section shall be issued on parity with any
existing school building authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among categories of projects; lease
purchase options; limitation on time period for expenditure of project
allocation; county maintenance budget requirements; project
disbursements over period of years; preference for multicounty
arrangements; submission of project designs; set-aside to encourage local
participation; etc.
(a) It is the intent of the Legislature to empower the school building authority to facilitate and
provide state funds and to administer all federal funds provided for the construction and major
improvement of school facilities so as to meet the educational needs of the people of this state in an
efficient and economical manner. The authority shall make funding determinations in accordance
with the provisions of this article and shall assess existing school facilities and each facility's school
major improvement plan in relation to the needs of the individual student, the general school
population, the communities served by the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of moneys that are determined
by the authority to be available for distribution during the then current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund
are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of
this article; and (4) any other moneys received by the authority, except moneys paid into the school
major improvement fund pursuant to section six of this article, may be allocated and may be
expended by the authority for projects authorized in accordance with the provisions of section
sixteen of this article that service the educational community statewide or, upon application by the state board, for educational programs that are under the jurisdiction of the state board. In addition,
upon application by the state board or the administrative council of an area vocational educational
center established pursuant to article two-b of this chapter, the authority may allocate and expend
under this subsection moneys for school major improvement projects authorized in accordance with
the provisions of section sixteen of this article proposed by the state board or an administrative
council for school facilities under the direct supervision of the state board or an administrative
council, respectively. Furthermore, upon application by a county board, the authority may allocate
and expend under this subsection moneys for school major improvement projects for vocational
programs at comprehensive high schools, vocational schools cooperating with community and
technical college programs, or both. Each county board is encouraged to cooperate with community
and technical colleges in the use of existing or development of new vocational technical facilities.
All projects eligible for funds from this subsection shall be submitted directly to the authority which
shall be solely responsible for the project's evaluation: Provided, That the authority may not expend
any moneys for a school major improvement project proposed by the state board or the
administrative council of an area vocational educational center unless the state board or an
administrative council has submitted a ten-year school major improvement plan, to be updated
annually, pursuant to section sixteen of this article: facilities plan: Provided, however, That the
authority shall, before allocating any moneys to the state board or the administrative council of an
area vocational educational center for a school improvement project, consider all other funding
sources available for the project.
(c) An amount that is no more than two percent of the moneys that are determined by the
authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter;
(2) the issuance of revenue bonds for which moneys in the school building debt service fund are
pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this
article; and (4) any other moneys received by the authority, except moneys deposited into the school
major improvement fund, shall be set aside by the authority as an emergency fund to be distributed
in accordance with the guidelines adopted by the authority.
(d) An amount that is no more than five percent of the moneys that are determined by the
authority to be available for distribution during the current fiscal year from: (1) Moneys paid into
the school building capital improvements fund pursuant to section ten, article nine-a of this chapter;
(2) the issuance of revenue bonds for which moneys in the school building debt service fund are
pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this
article; and (4) any other moneys received by the authority, except moneys deposited into the school
major improvement fund, may be reserved by the authority for multiuse vocational-technical
education facilities projects that may include post-secondary programs as a first priority use. The
authority may allocate and expend under this subsection moneys for any purposes authorized in this
article on multiuse vocational-technical education facilities projects, including equipment and
equipment updates at the facilities, authorized in accordance with the provisions of section sixteen
of this article. and for equipment and equipment updates at the facilities. If the projects approved
under this subsection do not require the full amount of moneys reserved, moneys above the amount
required may be allocated and expended in accordance with other provisions of this article. A county
board, the state board, an administrative council or the joint administrative board of a vocational-
technical education facility which includes post-secondary programs may propose projects for facilities or equipment, or both, which are under the direct supervision of the respective body:
Provided, That the authority shall, before allocating any moneys for a project under this subsection,
consider all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be available for distribution during
the then current fiscal year from: (1) Moneys paid into the school building capital improvements
fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for
which moneys in the school building debt service fund are pledged as security; (3) moneys paid into
the school construction fund pursuant to section six of this article; and (4) any other moneys received
by the authority, except moneys deposited into the school major improvement fund, shall be
allocated and expended on the basis of need and efficient use of resources the basis to be determined
by the authority for projects funded in accordance with the provisions of section sixteen of this
article.
(f) If a county board of education proposes to finance a project that is approved pursuant to
authorized in accordance with section sixteen of this article through a lease with an option to
purchase leased premises upon the expiration of the total lease period pursuant to an investment
contract, the authority may allocate no moneys to the county board in connection with the project:
Provided, That the authority may transfer moneys to the state board of education which, with the
authority, shall lend the amount transferred to the county board to be used only for a one-time
payment due at the beginning of the lease term, made for the purpose of reducing annual lease
payments under the investment contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the authority, in consultation with
the state board, and shall be repaid in a period and bear interest at a rate as determined by the state board and the authority and shall have such any terms and conditions as that are required by the
authority, all of which shall be set forth in a loan agreement among the authority, the state board and
the county board;
(2) The loan agreement shall provide for the state board and the authority to defer the
payment of principal and interest upon any loan made to the county board during the term of the
investment contract, and annual renewals of the investment contract, among the state board, the
authority, the county board and a lessor: Provided, That in the event a county board which has
received a loan from the authority for a one-time payment at the beginning of the lease term does not
renew the subject lease annually until performance of the investment contract in its entirety is
completed, the county board is in default and the principal of the loan, together with all unpaid
interest accrued to the date of the default, shall, at the option of the authority, in consultation with
the state board, become due and payable immediately or subject to renegotiation among the state
board, the authority and the county board: Provided, however, That if a county board renews the
lease annually through the performance of the investment contract in its entirety, the county board
shall exercise its option to purchase the leased premises: Provided further, That the failure of the
county board to make a scheduled payment pursuant to the investment contract constitutes an event
of default under the loan agreement: And provided further, That upon a default by a county board,
the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at
the option of the authority, in consultation with the state board, become due and payable immediately
or subject to renegotiation among the state board, the authority and the county board: And provided
further, That if the loan becomes due and payable immediately, the authority, in consultation with
the state board, shall use all means available under the loan agreement and law to collect the outstanding principal balance of the loan, together with all unpaid interest accrued to the date of
payment of the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and the authority to forgive all
principal and interest of the loan upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment contract in its entirety.
(g) To encourage county boards to proceed promptly with facilities planning and to prepare
for the expenditure of any state moneys derived from the sources described in this subsection section,
any county board failing or other entity to whom moneys are allocated by the authority that fails to
expend the money within three years of the allocation to the county board shall forfeit the allocation
and thereafter is ineligible for further allocations pursuant to this subsection section until the county
board it is ready to expend funds in accordance with an approved facilities plan: Provided, That the
authority may authorize an extension beyond the three-year forfeiture period not to exceed an
additional two years. Any amount forfeited shall be added to the total funds available in the school
construction fund of the authority for future allocation and distribution. Funds may not be
distributed to any county board that does not have a comprehensive educational facility for any
project under this article unless the responsible entity has a facilities plan approved by the state board
and the school building authority or to any county board that is not and is prepared to commence
expenditure of the funds during the fiscal year in which the moneys are distributed.
(h) The remaining moneys that are determined by the authority to be available for distribution
during the then current fiscal year from moneys paid into the school major improvement fund
pursuant to section six of this article shall be allocated and distributed on the basis of need and
efficient use of resources the basis to be determined by the authority for projects authorized in accordance with the provisions of section sixteen of this article: Provided, That the moneys may not
be distributed to any county board that does not have an approved school major improvement for any
project under this section unless the responsible entity has a facilities plan or to any county board that
is not prepared approved by the state board and the authority and is to commence expenditures of
the funds during the fiscal year in which the moneys are distributed: Provided, however, That any
moneys allocated to a county board project and not distributed to that county board for that project
shall be deposited in an account to the credit of that county board the project, the principal amount
to remain to the credit of and available to the county board project for a period of two years. Any
moneys which are unexpended after a two-year period shall be redistributed on the basis of need
from the school major improvement fund in that fiscal year.
(i) No local matching funds may be required under the provisions of this section. However,
the responsibilities of the county boards of education to maintain school facilities are not negated
by the provisions of this article. To be eligible to receive an allocation of school major improvement
funds from the authority, a county board must have expended in the previous fiscal year an amount
of county moneys equal to or exceeding the lowest average amount of money included in the county
board's maintenance budget over any three of the previous five years and must have budgeted an
amount equal to or greater than the average in the current fiscal year: Provided, That the state board
of education shall promulgate rules relating to county boards' maintenance budgets, including items
which shall be included in the budgets.
(j) Any county board may use moneys provided by the authority under this article in
conjunction with local funds derived from bonding, special levy or other sources. Distribution to
a county board, or to the state board or the administrative council of an area vocational educational center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a
schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(k) Funds in the school construction fund shall first be transferred and expended as follows:
Any funds deposited in the school construction fund shall be expended first in accordance
with an appropriation by the Legislature. To the extent that funds are available in the school
construction fund in excess of that amount appropriated in any fiscal year, the excess funds may be
expended for projects authorized in accordance with the provisions of section sixteen of this article.
Any projects which the authority identified and announced for funding on or before the first day of
August, one thousand nine hundred ninety-five, or identified and announced for funding on or before
the thirty-first day of December, one thousand nine hundred ninety-five, shall be funded by the
authority in an amount which is not less than the amount specified when the project was identified
and announced.
(l) It is the intent of the Legislature to encourage county boards to explore and consider
arrangements with other counties that may facilitate the highest and best use of all available funds,
which may result in improved transportation arrangements for students or which otherwise may
create efficiencies for county boards and the students. In order to address the intent of the
Legislature contained in this subsection, the authority shall grant preference to those projects which
involve multicounty arrangements as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of new school buildings to the
school building authority for review and approval prior to preparation of final bid documents:
Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a
through thirty-three-f, inclusive, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
(n) The authority may elect to disburse funds for approved construction projects over a period
of more than one year subject to the following:
(1) The authority may not approve the funding of a school construction project for over a
period of more than three years;
(2) The authority may not approve the use of more than fifty percent of the revenue available
for distribution in any given fiscal year for projects that are to be funded over a period of more than
one year; and
(3) In order to encourage local participation in funding school construction projects, the
authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for
one additional year to provide a county the opportunity to complete financial planning for a project
prior to the allocation of construction funds. Any such funding shall be on a reserve basis and
converted to a part of the construction grant only after all project budget funds have been secured
and all county commitments have been fulfilled. Failure of the county to solidify the project budget
and meet its obligations to the state within eighteen months of the date the funding is set aside by
the authority will result in expiration of the reserve and the funds shall be reallocated by the authority
in the succeeding funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for facilities and major
improvement plans; guidelines for modifications and updates, etc.;
guidelines for project evaluation; submission of certified list of projects to
be funded; department on-site inspection of facilities; enforcement of
required changes or additions to project plans.
(a) The authority shall establish guidelines and procedures to promote the intent and purposes
of this article and assure the prudent and resourceful expenditure of state funds for projects under
this article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school major improvement plans and
projects submitted in the furtherance of said the plans that address, but are not limited to, the
following:
(A) All of the elements of the respective plans as defined in section two of this article;
(B) The procedures for a county to submit a preliminary plan, a plan outline or a proposal for
a plan to the authority prior to the submission of the facilities plan. The preliminary plan, plan
outline or proposal for a plan shall be the basis for a consultation meeting between representatives
of the county and members of the authority, including at least one citizen member, which shall be
held promptly following submission of the preliminary plan, plan outline or proposal for a plan to
assure understanding of the general goals of this article and the objective criteria by which projects
will be evaluated, to discuss ways the plan may be structured to meet those goals, and to assure
efficiency and productivity in the project approval process;
(C) The manner, time line and process for the submission of each plan and annual plan
updates to the authority;
(D) The requirements for public hearings, comments or other means of providing
broad-based input on plans and projects under this article within a reasonable time period as the
authority may consider appropriate. The submission of each plan must be accompanied by a
synopsis of all comments received and a formal comment by the county board, the state board or the
administrative council of an area vocational educational center submitting the plan;
(E) Any project specifications and maintenance specifications considered appropriate by the
authority including, but not limited to, such matters as energy efficiency, preferred siting,
construction materials, maintenance plan and any other matter related to how the project is to
proceed;
(F) A prioritization by the county board, the state board or the administrative council
submitting the plan of each project contained in the plan. In prioritizing the projects, the county
board, the state board or the administrative council submitting the plan shall make determinations
in accordance with the objective criteria formulated by the school building authority in accordance
with this section. The priority list is one of the criteria that shall be considered by the authority
deciding how the available funds should be expended;
(G) The objective means to be set forth in the plan and used in evaluating implementation
of the overall plan and each project included in the plan. The evaluation must measure how the plan
addresses the goals of this article and any guidelines adopted hereunder under this article, and how
each project is in furtherance of the facilities plan and school major improvement plan, as applicable,
as well as the importance of the project to the overall success of the facilities plan or school major
improvement plan and the overall goals of the authority; and
(H) Any other matters considered by the authority to be important reflections of how a
construction project or a major improvement project or projects will further the overall goals of this
article.
(2) Guidelines and procedures which may be adopted by the authority for requiring that a
county board modify, update, supplement or otherwise submit changes or additions to an approved
facilities plan or for requiring that a county board, the state board or the administrative council of an area vocational educational center modify, update, supplement or otherwise submit changes or
additions to an approved school major improvement plan. The authority shall provide reasonable
notification and sufficient time for the change or addition as delineated in guidelines developed by
the authority.
(3) Guidelines and procedures for evaluating project proposals that are submitted to the
authority that address, but are not limited to, the following:
(A) Any project funded by the authority must be in furtherance of the facilities plan or school
major improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the region, the facilities plan must state
the manner in which the cost and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction project through a lease with an
option to purchase pursuant to an investment contract as described in subsection (f), section fifteen
of this article, the specifications for the project must include the term of the lease, the amount of each
lease payment, including the payment due upon exercise of the option to purchase, and the terms and
conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects which shall include, but are not
limited to, the following:
(i) How the current facilities do not meet and how the plan and any project thereunder does
meet under the plan meets the following:
(I) Student health and safety including, but not limited to, critical health and safety needs;
(II) Economies of scale, including compatibility with similar schools that have achieved the
most economical organization, facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing other demographic
considerations;
(IV) Multicounty and regional planning to achieve the most effective and efficient
instructional delivery system;
(V) Curriculum improvement and diversification, including the use of instructional
technology, distance learning and access to advanced courses in science, mathematics, language arts
and social studies;
(VI) Innovations in education;
(VII) Adequate space for projected student enrollments;
(VIII) The history of efforts taken by the county board to propose or adopt local school bond
issues or special levies to the extent constitutionally permissible; and
(IX) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful expenditure of state funds and
achieve the purposes of this article for constructing, expanding, renovating or otherwise improving
and maintaining school facilities for a thorough and efficient education.
(4) Guidelines and procedures for evaluating projects for funding that address, but are not
limited to, the following:
(A) Requiring each county board's facilities plan and school major improvement plan to
prioritize all the construction projects or major improvement projects, respectively, within the
county. A school major improvement plan submitted by the state board or the administrative council
of an area vocational educational center shall prioritize all the school improvement projects
contained in the plan. The priority list shall be one of the criteria to be considered by the authority in determining how available funds shall be expended. In prioritizing the projects, the county board,
the state board or the administrative council submitting a plan shall make determinations in
accordance with the objective criteria formulated by the school building authority;
(B) The return to each county submitting a project proposal an explanation of the evaluative
factors underlying the decision of the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in accordance with this article, subject to the
availability of funds.
(b) The state department of education shall conduct on-site inspections, at least annually, of
all facilities which have been funded wholly or in part by moneys from the authority or state board
to ensure compliance with the county board's facilities plan and school major improvement plan as
related to the facilities; to preserve the physical integrity of the facilities to the extent possible; and
to otherwise extend the useful life of the facilities: Provided, That the state board shall submit
reports regarding its on-site inspections of facilities to the authority within thirty days of completion
of the on-site inspections: Provided, however, That the state board shall promulgate rules regarding
the on-site inspections and matters relating thereto, in consultation with the authority, as soon as
practical and shall submit proposed rules for legislative review no later than the first day of
December, one thousand nine hundred ninety-four.
(c) Based on its on-site inspection or notification by the authority to the state board that the
changes or additions to a county's board facilities plan or school major improvement plan required
by the authority have not been implemented within the time period prescribed by the authority, the
state board shall restrict the use of the necessary funds or otherwise allocate funds from moneys
appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this chapter."
And,
By amending the title of the bill to read as follows:
H. B. 4601 - "A Bill to amend and reenact §18-9A-7 of the code of West Virginia, 1931, as
amended; to amend and reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said
code, all relating to public education; suspending basic foundation allocation for bus replacement
and providing allocation for academic trips for one school year; school building authority; redefining
certain terms; correcting references; allowing expenditure of certain moneys for vocational programs
at comprehensive high schools and vocational schools cooperating with community and technical
college programs; encouraging cooperation relating to vocational technical facilities; providing that
excess lottery revenues not be transferred to school construction fund for the next school year only,
with funds made available for legislative appropriation; project submission and evaluation relating
to certain funds; requiring facilities plan as condition of receiving certain funds; providing for certain
guidelines and procedures by authority for plans, plan modifications and evaluating projects; and
clarifying that certain revenues can only be expended on projects authorized in accordance with the
guidelines and procedures section."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of
concurrent resolutions of the House of Delegates as follows:
H. C. R. 3, Naming a portion of state route 75 and U. S. route 52, the "Big Green Memorial
Highway",
H. C. R. 4, Establishing a "Robert L. Bradley, M. D., Ph. D., Brigadier General Memorial
Highway",
H. C. R. 23, Naming the bridge, located approximately one mile east of the Huntington Mall
on Route 60, the "George Adam Floding Bridge",
H. C. R. 29, Requesting the Division of Highways to name the bridge crossing the Elk River
on State Route 4 south of Gassaway, the "Veterans Memorial Bridge",
H. C. R. 31, Requesting a study on the use of credit scoring being used as a factor in
determining the amount of a premium charged for issuance of an insurance policy,
H. C. R. 32, Erecting a plaque dedicating the "Bowers Bridge", located at Mannington in
Marion County, to Herbert "Pete" Bonnell, Charles Brumage, Clarence Roberts, Louie Starsick and
Sam Hunter,
And,
H. C. R. 57, Expressing the full support of the West Virginia Legislature for the Republic
of China on Taiwan to be permitted to appropriate and meaningful participation in activities of the
World Health Organization.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
S. B. 563, Relating to public employees retirement act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page two, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the context, the following words and
phrases as used in this article, have the following meanings:
(1) 'State' means the state of West Virginia;
(2) 'Retirement system' or 'system' means the West Virginia public employees retirement
system created and established by this article;
(3) 'Board of trustees' or 'board' means the board of trustees of the West Virginia public
employees retirement system;
(4) 'Political subdivision' means the state of West Virginia, a county, city or town in the
state; a school corporation or corporate unit; any separate corporation or instrumentality established
by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality
supported in most part by counties, cities or towns; and any public corporation charged by law with
the performance of a governmental function and whose jurisdiction is coextensive with one or more
counties, cities or towns: Provided, That any mental health agency participating in the public
employees retirement system before the first day of July, one thousand nine hundred ninety-seven,
is considered a political subdivision solely for the purpose of permitting those employees who are
members of the public employees retirement system to remain members and continue to participate
in the retirement system at their option after the first day of July, one thousand nine hundred
ninety-seven: Provided, however, That the regional community policing institute which participated in the public employees retirement system before the first day of July, two thousand, is considered
a political subdivision solely for the purpose of permitting those employees who are members of the
public employees retirement system to remain members and continue to participate in the public
employees retirement system after the first day of July, two thousand;
(5) 'Participating public employer' means the state of West Virginia, any board, commission,
department, institution or spending unit, and includes any agency created by rule of the supreme
court of appeals having full-time employees, which for the purposes of this article is considered a
department of state government; and any political subdivision in the state which has elected to cover
its employees, as defined in this article, under the West Virginia public employees retirement system;
(6) 'Employee' means any person who serves regularly as an officer or employee, full time,
on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part, by any political subdivision, or
an officer or employee whose compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel employed by the West Virginia
national guard whose compensation, in whole or in part, is paid by the federal government:
Provided, That members of the Legislature, the clerk of the House of Delegates, the clerk of the
Senate, employees of the Legislature whose term of employment is otherwise classified as temporary
and who are employed to perform services required by the Legislature for its regular sessions or
during the interim between regular sessions and who have been or are employed during regular
sessions or during the interim between regular sessions in seven consecutive calendar years, as
certified by the clerk of the house in which the employee served, members of the legislative body
of any political subdivision and judges of the state court of claims are considered to be employees,
anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
(7) 'Member' means any person who is included in the membership of the retirement system;
(8) 'Retirant' means any member who retires with an annuity payable by the retirement
system;
(9) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled
to, an annuity or other benefit payable by the retirement system;
(10) 'Service' means personal service rendered to a participating public employer by an
employee, as defined in this article, of a participating public employer;
(11) 'Prior service' means service rendered prior to the first day of July, one thousand nine
hundred sixty-one, to the extent credited a member as provided in this article;
(12) 'Contributing service' means service rendered by a member within this state and for
which the member made contributions to a public retirement system account of this state, to the
extent credited him or her as provided by this article. This revised definition is retroactive and
applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
(13) 'Credited service' means the sum of a member's prior service credit and contributing
service credit standing to his or her credit as provided in this article;
(14) 'Limited credited service' means service by employees of the West Virginia educational
broadcasting authority, in the employment of West Virginia university, during a period when the
employee made contributions to another retirement system, as required by West Virginia university,
and did not make contributions to the public employees retirement system: Provided, That while
limited credited service can be used for the formula set forth in subsection (e), section twenty-one
of this article, it may not be used to increase benefits calculated under section twenty-two of this article;
(15) 'Compensation' means the remuneration paid a member by a participating public
employer for personal services rendered by him or her to the participating public employer. In the
event a member's remuneration is not all paid in money, his or her participating public employer
shall fix the value of the portion of his or her remuneration which is not paid in money;
(16) 'Final average salary' means either:
(A) The average of the highest annual compensation received by a member (including a
member of the Legislature who participates in the retirement system in the year one thousand nine
hundred seventy-one or thereafter) during any period of three consecutive years of his or her credited
service contained within his or her ten years of credited service immediately preceding the date his
or her employment with a participating public employer last terminated; or
(B) If he or she has less than five years of credited service, the average of the annual rate of
compensation received by him or her during his or her total years of credited service; and in
determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a
member of the Legislature who participates in the retirement system as a member of the Legislature
in the year one thousand nine hundred seventy-one or in any year thereafter, his or her actual
legislative compensation (the total of all compensation paid under sections two, three, four and five,
article two-a, chapter four of this code) in the year one thousand nine hundred seventy-one or in any
year thereafter, plus any other compensation he or she receives in any year from any other
participating public employer including the state of West Virginia, without any multiple in excess
of one times his or her actual legislative compensation and other compensation, shall be used:
Provided, That 'final average salary' for any former member of the Legislature or for any member
of the Legislature in the year one thousand nine hundred seventy-one who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight,
or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of
November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or
more of those three years and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of
this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus
the highest other compensation the former member or member received in any one of the three years
from any other participating public employer including the state of West Virginia; or (ii) 'final
average salary' determined in accordance with paragraph (A) or (B) of this subdivision, whichever
computation produces the higher final average salary (and in determining the annual compensation
under (ii) of this proviso, the legislative compensation of the former member shall be computed on
the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation
of the member shall be computed on the basis set forth in the provisions of this subdivision
immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied
by eight, whichever computation as to the member produces the higher annual compensation);
(17) 'Accumulated contributions' means the sum of all amounts deducted from the
compensations of a member and credited to his or her individual account in the members' deposit
fund, together with regular interest on the contributions;
(18) 'Regular interest' means the rate or rates of interest per annum, compounded annually,
as the board of trustees adopts from time to time;
(19) 'Annuity' means an annual amount payable by the retirement system throughout the life
of a person. All annuities shall be paid in equal monthly installments, using the upper cent for any
fraction of a cent;
(20) 'Annuity reserve' means the present value of all payments to be made to a retirant or
beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other
tables of experience, and regular interest, adopted by the board of trustees from time to time;
(21) 'Retirement' means a member's withdrawal from the employ of a participating public
employer with an annuity payable by the retirement system;
(22) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a
mortality table and regular interest adopted by the board of trustees from time to time;
(23) 'Retroactive service' means: (1) Service an employee was entitled to, but which the
employer has not withheld or paid for; or (2) that service from the first day of July, one thousand
nine hundred sixty-one, and the date an employer decides to become a participating member of the
public employees retirement system; or (3) service prior to the first day of July, one thousand nine
hundred sixty-one, for which the employee is not entitled to prior service at no cost in accordance
with 162 CSR 5.16;
(24) 'Required beginning date' means the first day of April of the calendar year following
the later of: (A) The calendar year in which the member attains age seventy and one-half; or (B) the
calendar year in which the member ceases providing service covered under this system to a
participating employer;
(25) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been
amended; and
(26) 'Plan year' means the same as referenced in section forty-two of this article.
__(1) 'Accumulated contributions' means the sum of all amounts deducted from the
compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
__(2) 'Accumulated net benefit' means the aggregate amount of all benefits paid to or on behalf
of a retired member;
__(3) 'Actuarial equivalent' means a benefit of equal value computed upon the basis of a
mortality table and regular interest adopted by the board of trustees from time to time;
__(4) 'Annuity' means an annual amount payable by the retirement system throughout the life
of a person. All annuities shall be paid in equal monthly installments using the upper cent for any
fraction of a cent;
__(5) 'Annuity reserve' means the present value of all payments to be made to a retirant or
beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other
tables of experience, and regular interest, adopted by the board of trustees from time to time;
__(6) 'Beneficiary' means any person, except a retirant, who is entitled to, or will be entitled
to, an annuity or other benefit payable by the retirement system;
__(7) 'Board of trustees' or 'board' means the board of trustees of the West Virginia public
employees retirement system;
__(8) 'Compensation' means the remuneration paid a member by a participating public
employer for personal services rendered by him or her to the participating public employer. In the
event a member's remuneration is not all paid in money, his or her participating public employer
shall fix the value of the portion of his or her remuneration which is not paid in money;
__(9) 'Contributing service' means service rendered by a member within this state and for
which the member made contributions to a public retirement system account of this state to the
extent credited him or her as provided by this article. This revised definition is retroactive and applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
__(10) 'Credited service' means the sum of a member's prior service credit, military service
credit and contributing service credit standing to his or her credit as provided in this article;
__(11) 'Employee' means any person who serves regularly as an officer or employee, full time,
on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part, by any political subdivision, or
an officer or employee whose compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel employed by the West Virginia
national guard whose compensation, in whole or in part, is paid by the federal government:
Provided, That members of the Legislature, the clerk of the House of Delegates, the clerk of the
Senate, employees of the Legislature whose term of employment is otherwise classified as temporary
and who are employed to perform services required by the Legislature for its regular sessions or
during the interim between regular sessions and who have been or are employed during regular
sessions or during the interim between regular sessions in seven consecutive calendar years, as
certified by the clerk of the house in which the employee served, members of the legislative body
of any political subdivision and judges of the state court of claims are considered to be employees
receiving one year of service credit for each one year term served and prorated service credit for any
partial term served, any thing contained in this article to the contrary notwithstanding. In any case
of doubt as to who is an employee within the meaning of this article, the board of trustees shall
decide the question;
__(12) 'Employer error' means an omission, misrepresentation or violation of relevant
provisions of the West Virginia code and/or West Virginia code of state regulations by the
participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public
employer shall not constitute employer error;
__(13) 'Final average salary' means either:
__(A) The average of the highest annual compensation received by a member (including a
member of the Legislature who participates in the retirement system in the year one thousand nine
hundred seventy-one or thereafter) during any period of three consecutive years of the member's
credited service contained within his or her fifteen years of credited service immediately preceding
the date of last termination of employment with a participating public employer; or
__(B) If the member has less than five years of credited service, the average of the annual rate
of compensation received by him or her during the member's total years of credited service; and in
determining the annual compensation, under either this paragraph or paragraph (A) of this
subdivision, of a member of the Legislature who participates in the retirement system as a member
of the Legislature in the year one thousand nine hundred seventy-one or in any year thereafter, his
or her actual legislative compensation (the total of all compensation paid under sections two, three,
four and five, article two-a, chapter four of this code) in the year one thousand nine hundred
seventy-one or in any year thereafter, plus any other compensation he or she receives in any year
from any other participating public employer including the state of West Virginia, without any
multiple in excess of one times his or her actual legislative compensation and other compensation,
shall be used: Provided, That 'final average salary' for any former member of the Legislature or for
any member of the Legislature in the year one thousand nine hundred seventy-one who, in either
event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred
sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of
this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus
the highest other compensation the former member or member received in any one of the three years
from any other participating public employer including the state of West Virginia; or (ii) 'final
average salary' determined in accordance with this paragraph or paragraph (A) of this subdivision,
whichever computation produces the higher final average salary (and in determining the annual
compensation under subparagraph (ii) of this paragraph, the legislative compensation of the former
member shall be computed on the basis of one thousand five hundred dollars multiplied by eight,
and the legislative compensation of the member shall be computed on the basis set forth in the
provisions of this subdivision immediately preceding this proviso or on the basis of one thousand
five hundred dollars multiplied by eight, whichever computation as to the member produces the
higher annual compensation);
__(14) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended;
__(15) 'Limited credited service' means service by employees of the West Virginia educational
broadcasting authority, in the employment of West Virginia university, during a period when the
employee made contributions to another retirement system, as required by West Virginia university,
and did not make contributions to the public employees retirement system: Provided, That while
limited credited service can be used for the formula set forth in subsection (e), section twenty-one
of this article, it may not be used to increase benefits calculated under section twenty-two of this
article;
__(16) 'Member' means any person who is included in the membership of the retirement
system;
__(17) 'Participating public employer' means the state of West Virginia, any board,
commission, department, institution or spending unit and includes any agency created by rule of the
supreme court of appeals having full-time employees, which for the purposes of this article is
considered a department of state government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under the West Virginia public employees
retirement system;
__(18) 'Plan year' means the same as referenced in section forty-two of this article;
__(19) 'Political subdivision' means the state of West Virginia, a county, city or town in the
state; a school corporation or corporate unit; any separate corporation or instrumentality established
by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality
supported in most part by counties, cities or towns; and any public corporation charged by law with
the performance of a governmental function and whose jurisdiction is coextensive with one or more
counties, cities or towns: Provided, That any mental health agency participating in the public
employees retirement system before the first day of July, one thousand nine hundred ninety-seven,
is considered a political subdivision solely for the purpose of permitting those employees who are
members of the public employees retirement system to remain members and continue to participate
in the retirement system at their option after the first day of July, one thousand nine hundred
ninety-seven: Provided, however, That the regional community policing institute which participated
in the public employees retirement system before the first day of July, two thousand, is considered
a political subdivision solely for the purpose of permitting those employees who are members of the
public employees retirement system to remain members and continue to participate in the public
employees retirement system after the first day of July, two thousand;
__(20) 'Prior service' means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
__(21) 'Regular interest' means the rate or rates of interest per annum, compounded annually,
as the board of trustees adopts from time to time;
__(22) 'Required beginning date' means the first day of April of the calendar year following
the later of: (A) The calendar year in which the member attains age seventy and one-half; or (B) the
calendar year in which the member ceases providing service covered under this system to a
participating employer;
__(23) 'Retirant' means any member who retires with an annuity payable by the retirement
system;
__(24) 'Retirement' means a member's withdrawal from the employ of a participating public
employer with an annuity payable by the retirement system;
__(25) 'Retirement system' or 'system' means the West Virginia public employees retirement
system created and established by this article;
__(26) 'Retroactive service' means: (A) Service from the first day of July, one thousand nine
hundred sixty-one, and the date an employer decides to become a participating member of the public
employees retirement system; or (B) service prior to the first day of July, one thousand nine hundred
sixty-one, for which the employee is not entitled to prior service at no cost in accordance with 162
CSR 5.13; or (C) service of any member of a legislative body or employees of the state Legislature
whose term of employment is otherwise classified as temporary for which the employee is eligible,
but which the employee did not elect to participate at that time;
__(27) 'Service' means personal service rendered to a participating public employer by an
employee, as defined in this article, of a participating public employer; and
__(28) 'State' means the state of West Virginia.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the following persons:
(a) All employees, as defined in section two of this article, who are in the employ of a
political subdivision the day preceding the date it becomes a participating public employer and who
continue in the employ of the participating public employer on and after that date shall become
members of the retirement system; and all persons who become employees of a participating public
employer on or after that date shall thereupon become members of the system; except as provided
in subdivisions (b) and (c) of this section.
(b) The membership of the retirement system shall may not include any person who is a an
active contributing member of, or who has been retired by, any of the state teachers retirement
systems, the judges retirement system, the retirement system of the division of public safety West
Virginia state police death, disability and retirement fund, the West Virginia state police retirement
system, the deputy sheriff retirement system or any municipal retirement system for either, or both,
policemen or firemen; and the bureau of employment programs, by the commissioner of the bureau,
may elect whether its employees will accept coverage under this article or be covered under the
authorization of a separate enactment: Provided, That the exclusions of membership shall may not
apply to any member of the state Legislature, the clerk of the House of Delegates, the clerk of the
state Senate or to any member of the legislative body of any political subdivision provided he or she
once becomes a contributing member of the retirement system: Provided, however, That any retired
member of the retirement system of the division of public safety West Virginia state police death,
disability and retirement fund, the West Virginia state police retirement system, the deputy sheriff
retirement system and any retired member of any municipal retirement system for either, or both,
policemen or firemen may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal
policeman or fireman or as a member of the division of public safety West Virginia state police
death, disability and retirement fund, the West Virginia state police retirement system or of the
deputy sheriff retirement system: Provided further, That the membership of the retirement system
does not include any person who becomes employed by the Prestera center for mental health
services, valley comprehensive mental health center, Westbrook health services or eastern panhandle
mental health center on or after the first day of July, one thousand nine hundred ninety-seven: And
provided further, That membership of the retirement system does not include any person who
becomes a member of the federal railroad retirement act on or after the first day of July, two
thousand.
(c) Any member of the state Legislature, the clerk of the House of Delegates, the clerk of the
state Senate and any employee of the state Legislature whose employment is otherwise classified as
temporary and who is employed to perform services required by the Legislature for its regular
sessions or during the interim between regular sessions and who has been or is so employed during
regular sessions or during the interim between sessions in seven consecutive calendar years, as
certified by the clerk of the house in which the employee served, or any member of the legislative
body of any other political subdivision shall become a member of the retirement system provided
he or she notifies the retirement system in writing of his or her intention to be a member of the
system and files a membership enrollment form as prescribed by the board of trustees, and each
person, upon filing his or her written notice to participate in the retirement system, shall by that act
authorize the clerk of the House of Delegates or the clerk of the state Senate or such person or
legislative agency as the legislative body of any other political subdivision shall designate to deduct
the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded
to the retirement system.
(d) If question arises regarding the membership status of any employee, the board of trustees
has the final power to decide the question.
(e) Any individual who is a leased employee is not eligible to participate in the system. For
the purposes of this article, the term 'leased employee' means any individual who performs services
as an independent contractor or pursuant to an agreement with an employee leasing organization or
other similar organization. If a question arises regarding the status of an individual as a leased
employee, the board has final authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service in force, of which at least
three years are contributing service, and who leaves the employ of a participating public employer
prior to his or her attaining age sixty years for any reason except his or her disability retirement or
death shall be entitled to an annuity computed according to section twenty-two of this article as that
section was in force as of the date of his or her separation from the employ of a participating public
employer: Provided, That he or she does not withdraw his or her accumulated contributions from
the members' deposit fund: Provided, however, That on and after the first day of July, two thousand
two, any person who becomes a new member of this retirement system shall, in qualifying for
retirement hereunder, have five or more years of service, all of which years shall be actual,
contributory ones. His or her annuity shall begin the first day of the calendar month next following
the month in which his or her application for same is filed with the board of trustees on or after his
or her attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has ten or more years of credited service in force and who has attained age
fifty-five as of the date of his or her separation, may, prior to the effective date of his or her
retirement, but not thereafter, elect to receive the actuarial equivalent of his or her deferred
retirement annuity as a reduced annuity commencing on the first day of any calendar month between
his or her date of separation and his or her attainment of age sixty-two years and payable throughout
his or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection
(a) of this section and has twenty or more years of credited service in force may elect to receive the
actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on
the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment
of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this section or of this article, except
sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated by the
board, any member who has thirty or more years of credited service in force, at least three of which
are contributing service, and who elects to take early retirement, which for the purposes of this
subsection means retirement prior to age sixty, whether an active employee or a separated employee
at the time of application, shall be entitled to the full computation of annuity according to section
twenty-two of this article, as that section was in force as of the date of retirement application, but
with the reduced actuarial equivalent of the annuity the member would have received if his or her
benefit had commenced at age sixty when he or she would have been entitled to full computation of
benefit without any reduction.
(e) Notwithstanding any of the other provisions of this section or of this article, except
sections twenty-seven-a and twenty-seven-b of this article, any member of the retirement system may retire with full pension rights, without reduction of benefits, if he or she is at least fifty-five years
of age and the sum of his or her age plus years of contributing service and limited credited service,
as defined in section two of this article, equals or exceeds eighty. An annuity shall begin the first
day of the calendar month next following the month in which application for the annuity is filed with
the board of trustees.
§5-10-23. Terminal payment following retirement.
For the purposes of this section, the term 'accumulated net benefit' means the aggregate
amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum distributions paid to the member or to
any other person on account of the member's rights to benefits from the plan; (c) survivor benefits
paid to any person or persons on account of the member's rights to benefits from the plan; and (d)
any other distributions on account of the member's rights to benefits from the plan whether they are
paid in the nature of a refund of contributions, interest on contributions, lump sum distributions, or
annuity type benefits. The amounts counted will be the amounts actually paid without regard to any
optional form of any annuity benefit.
For the purposes of this section, the term 'accumulated employee contributions' means all
money the member has contributed to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct remittance by the member to repay
contributions and interest previously distributed and direct remittance by the member to pay imputed
contributions for periods which were not subject to contributions but may be counted for benefit
purposes under the plan. The term accumulated employee contributions does not include any amount
credited under the provisions of the plan as interest on member contributions.
For the purposes of this section, the term 'member's account' means the excess of the accumulated employee contributions over the accumulated net benefit payments at any point in time
and the term 'member' includes retirant. (a) This section provides for the payment of the balance
in the a retired member's account in the event that all claims to benefits payable to, or on behalf of,
a member expire before his or her member account has been fully exhausted. The expiration of such
rights to benefits would be on the occasion of later of either the death of the retired member and any
and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form
of benefit. Without limitation, this would include the demise of beneficiaries of survivor annuities
and beneficiaries of any lump sum distributions drawing benefits under a straight life annuity or the
death of a survivor annuitant drawing benefits under any optional form of benefit selected by the
retired member.
(b) In the event that all claims to benefit benefits payable to, or on behalf of, a retired member
expire and the accumulated employee contributions exceed his or her the accumulated net benefit
payments paid to or on behalf of the retired member, the balance in the retired member's account
shall be paid to the person or persons as the member has nominated by the retired member by written
designation duly executed and filed with the board of trustees. If there be is no designated person
or persons surviving the retired member following the expiration of claims, the excess of the
accumulated employee contributions over the accumulated net benefit, if any, shall be paid to his or
her the retired member's estate: In no case may the plan retain any amount of the accumulated
employee contributions remaining in the member's account, but it shall retain interest earned on the
same accumulated employee contributions in the instance of a member's or beneficiary's
post-retirement death Provided, That the provisions of this section shall be retroactive for all
members who entered retirement status on or after the ninth day of June, two thousand.
§5-10-26. Reexamination of disability retirants; reemployment; adjustment of annuity for earnings.
(a) At least once each year during the first five years following the retirement of a member
on account of disability, as provided in section twenty-five hereof, and at least once in each
three-year period thereafter, the board of trustees may, and upon the retirant's application, shall
require a disability retirant, who has not attained age sixty years, to undergo a medical examination
to be made by or under the direction of a physician designated by the board submit a statement from
the disability retirant's physician certifying continued disability and to submit a copy of the disability
retirant's income tax return from the previous tax year. Should the said retirant refuse to submit to
such medical examination required documentation in any such period, his the retirant's disability
annuity may be discontinued by the board until his withdrawal of such refusal the board receives the
required documentation. Should such refusal continue for one year, all his the retirant's rights in and
to his the annuity may be revoked by the board. If, upon such medical examination of a disability
retirant, the said a physician reports to the board that the retirant is physically able and capable of
resuming employment with a participating public employer, he the retirant shall be returned to the
employ of the participating public employer from whose employment he or she retired and his or her
disability annuity shall terminate: Provided, That the report of the said physician is concurred in by
the board concurs with the physician's report.
(b) A disability retirant who is returned to the employ of a participating public employer shall
again become a member of the retirement system and his or her credited service in force at the time
of his retirement shall be restored to his or her credit.
(c) If a disability retirant, who has not attained age sixty years, becomes engaged in a gainful
occupation, business or employment, and the sum of his earnings from such occupation, business
or employment, and his disability annuity exceeds his annual rate of compensation at the time of his retirement, his disability annuity shall be reduced to an amount which when added to the amount so
earned by him shall equal his said annual rate of compensation. If his earnings are later changed,
his disability annuity shall be correspondingly adjusted.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of credited service or any former
member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant
to section twenty-one of this article: may at any time prior to the effective date of his or her
retirement, by written declaration duly executed and filed with the board of trustees, in the same
manner as if he or she were then retiring from the employ of a participating public employer, elect
option A provided for in section twenty-four of this article and nominate a beneficiary whom the
board finds to have had an insurable interest in the life of the member. Prior to the effective date of
his or her retirement, a member may revoke his or her election of option A and nomination of
beneficiary and he or she may again prior to his or her retirement elect option A and nominate a
beneficiary as provided in this subsection. Upon the death of a member who has an option A
election in force, his or her beneficiary, if living, shall immediately receive an annuity computed in
the same manner in all respects as if the same member had retired the day preceding the date of his
or her death, notwithstanding that he or she might not have attained age sixty years, and elected the
said option A. If at the time of his or her retirement a member has an option A election in force, his
or her election of option A and nomination of beneficiary shall thereafter continue in force (1) Dies
without leaving surviving him or her a spouse; but (2) leaves surviving him or her a child who is
financially dependent on the member by virtue of a permanent mental or physical disability upon
evidence satisfactory to the board; and (3) has named such disabled child as sole beneficiary, the
disabled child shall immediately receive an annuity computed in the same manner in all respects as if the said member had: (i) Retired the day preceding the date of his or her death, notwithstanding
that he or she might not have attained age sixty or sixty-two years, as the case may be; (ii) elected
option A provided in section twenty-four of this article; and (iii) nominated his or her disabled child
as beneficiary. As an alternative to annuity option A, A member or former member with ten or more
years of credited service who does not leave surviving him or her a spouse or a disabled child may
elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump
sum amount to any beneficiary or beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of credited service, or any former
member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant
to section twenty-one of this article: (1) Dies; and (2) leaves a surviving spouse, the surviving
spouse shall immediately receive an annuity computed in the same manner in all respects as if the
said member had: (1) Retired the day preceding the date of his or her death, notwithstanding that
he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option
A provided for in section twenty-four of this article; and (3) nominated his or her surviving spouse
as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided for
in this section: Provided, That he or she executes a valid and notarized waiver on a form provided
by the retirement board and that the member or former member attests to the waiver. If the waiver
is presented to and accepted by the retirement board, the member or former member shall may
nominate, a beneficiary who has an insurable interest in the member's or former member's life upon
evidence satisfactory to the board, a child who is financially dependent on the member by virtue of
a permanent mental or physical disability under annuity option A. As an alternative to annuity
option A, the member or former member may elect to have the preretirement death benefit paid as
a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses in the event a waiver, as provided for in this section, has been presented to and
accepted by the retirement board.
(c) In the event any member who has ten or more years of credited service or any former
member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant
to section twenty-one of this article: (1) Dies without leaving surviving him or her a spouse; but (2)
leaves surviving him or her an infant child or children; and (3) does not have a beneficiary nominated
as provided in subsection (a) of this section, the infant child or children shall be entitled to an annuity
to be calculated as follows: The annuity reserve shall be calculated as though the member had retired
as of the date of his or her decease and elected a straight life annuity and the amount of the annuity
reserve shall be paid in equal monthly installments to said member's infant child or children until
the child or children attain age twenty-one or sooner marry or become emancipated; however, in no
event shall any child or children receive more than two hundred fifty dollars per month each. The
annuity payments shall be computed as of the date of the death of the member and the amount of the
annuity shall remain constant during the period of payment. The annual amount of the annuities
payable by this section shall not exceed sixty percent of the deceased member's final average salary.
(d) In the event any member or former member does not have ten or more years of credited
service, no preretirement death annuity may be authorized, owed or awarded under this section.
§5-10-44. Correction of errors.
Should any change or employer error in the records of any participating public employer or
the retirement system result in any person receiving from the system more or less than he the person
would have been entitled to receive had the records been correct, the board of trustees shall correct
such error the records, and as far as is practicable shall adjust the payment of the benefit in such
manner that the actuarial equivalent of the benefit to which such the person was correctly entitled shall be paid. Any employer error resulting in an underpayment to the retirement system may be
corrected by the employee remitting the required employee contribution and the participating public
employer remitting the required employer contribution. Interest shall accumulate in accordance with
162 CSR 7.4.1.2 and any interest owed on the employee and employer contributions resulting from
employer error shall be the responsibility of the participating public employer. The participating
public employer may remit total payment and the employee reimburse the participating public
employer through payroll deduction over a period equivalent to the time period during which the
employer error occurred not to exceed two thousand dollars. The participating public employer shall
submit proof that employer error was not willful, wanton or reckless."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
to the House amendments.
The bill, as amended by the House and as further amended by the Senate, was then put upon
its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 485),
and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being
as follows:
Absent And Not Voting: Blair, Coleman, Crosier, Ferrell and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 563) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 23 - "Requesting the Joint Committee on Government and Finance study the need
for creating a forensic science task force."
Whereas, The state needs to consider the coordination and/or consolidation of the various
state testing laboratories and other functions, including, but not limited to, the creation of a statewide
laboratory complex; and
Whereas, The state has a shortage of specialists in certain forensic science fields; and
Whereas, The lack of forensic science specialists affects the state's ability to address
emergency situations; and
Whereas, An improvement in the state's forensic science capabilities would enhance the
ability of law enforcement to solve crimes and prosecute criminals; and
Whereas, There is a need to coordinate efforts to enhance laboratory accreditation, training
of specialists and sharing of equipment among forensic organizations in the state; and
Whereas, Future federal funding for crime laboratories may require the establishment of a
statewide plan for organizing forensic science capabilities; and
Whereas, The Legislature has studied this topic during the 2003 interim session and has
recommended that this subject receive further study during the 2004 interim session; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the need
for creating a forensic science task force; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 24 - "Requesting the Joint Committee on Government and Finance study the
feasibility of establishing a special residential community for senior citizens."
Whereas, The establishment of a special residential community for senior citizens would
enhance West Virginia's opportunity to display its natural beauty and attract senior citizens to our
state; and
Whereas, A residential community for senior citizens could be located where it would be
accessible to activities designed for senior citizens and to skilled medical care and other assisted
living services for seniors to age in place; and
Whereas, The establishment of a senior community in West Virginia would generate
revenue, enhance business and provide jobs; and
Whereas, The Legislature has studied this topic during the 2003 interim session and has
recommended that this subject receive further study during the 2004 interim session; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of establishing a special residential community for senior citizens; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 26 - "Requesting the Joint Committee on Government and Finance study the
medicaid program preferred drug list, including the psychopharmacological data thereunder."
Whereas, The Legislature has studied this topic during the 2003 interim session and has
recommended that this subject receive further study during the 2004 interim session; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
medicaid program preferred drug list, including the psychopharmacological data thereunder; and,
be it
Further Resolved, That the Joint Committee on Government and Finance is also requested
to study the effects of section fifteen, article five, chapter nine of the code of West Virginia on medicaid recipients, the medicaid program, physicians and pharmacies; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C R. 47 - "Requesting the Joint Committee on Government and Finance conduct an
interim study of all governmental agencies involved in resolving the problem of widespread flooding
of streams in West Virginia."
Whereas, Heavy rainfalls in West Virginia have caused widespread flooding with
consequent property damage and human tragedy; and
Whereas, It is the duty of the Legislature, insofar as possible, to relieve the pain and anguish
of citizens who live under the threat of flooding; and
Whereas, The streams of West Virginia are regularly reduced in capacity by natural
processes such as stream bank sloughing and the accumulation of natural woody debris, as well as
refuse dumping; and
Whereas, Those streams whose channels have been reduced in capacity are primary
contributors to the frequency, extent and severity of flooding; and
Whereas, Many citizens who live near or adjacent to these streams live in fear of
floodwaters inundating their homes; and
Whereas, During every heavy rain, elderly, frail and isolated West Virginians fear that
clogged streams will leave them vulnerable to property damage which could be prevented; and
Whereas, Scientific hydrologic studies have established that the combination of
extraordinary rainfall on saturated soil, combined with a reduction in stream channel capacity,
determines the extent and magnitude of flooding in suburban and rural landscapes and that activities
related to farming, timber harvesting and mining have little or no such impact; and
Whereas, Individuals and businesses are no longer permitted to clean and clear impediments
from natural watercourses; and
Whereas, Several regulatory agencies with separate statutory regulations are aware of the
problems that exist with cleaning clogged streams that cause flooding; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct an
interim study of all governmental agencies involved in resolving the problem of widespread flooding
of streams in West Virginia; and, be it
Further Resolved, That every agency, including the United States Army Corps of Engineers,
whose primary mission is the prevention of flooding should be included in the study; and, be it
Further Resolved, That the study should be structured as a forum to hear testimony from
everyone involved in order to establish a combination of regulatory agency authority and
responsibility to ease the ability of citizens to clear clogged streams that cause flooding; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 56 - "Requesting the Joint Committee on Government and Finance study the current
administrative structure of the Division of Personnel and its policies, procedures and functions to
determine whether it can effectively meet the future needs of state government."
Whereas, The current structure of the Division of Personnel is burdened by archaic and
unnecessary rules, regulations and policies; and
Whereas, A personnel system for any organization requires continuous improvement,
innovation and effective use of modern technology to maintain the highest level of performance and
to ensure qualified employees are hired for state government jobs; and
Whereas, It is essential that the state's personnel system be organized, structured and made
ready to meet the demands for recruiting, training and maintaining highly trained, skilled and
effective employees for state government; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
current administrative structure of the Division of Personnel and its policies, procedures and
functions to determine whether it can effectively meet the future needs of state government; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 59 - "Requesting the Joint Committee on Government and Finance study the tax
laws relating to property taxes and consider revisions to the state's tax laws."
Whereas, The tax laws of West Virginia need to be modified to better meet the fiscal
challenges and changing needs of populations, infrastructure, services, future development of the
state and its subdivisions and to ease the financial burdens of its citizens who are already overly tax-
burdened; and
Whereas, Changing the standard methods of taxing property, as well as considering the
concept of land value taxation, may lead to changes in the state's tax structure which may result in
the elimination or reduction of other taxes; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the tax
laws relating to property taxes and consider revisions to the state's tax laws; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 70 - "Requesting the Joint Committee on Government and Finance study the
financial operations of senior centers and programs in each county of the State."
Whereas, Senior citizens make up a large portion of the West Virginia population; and
Whereas, A significant number of seniors in West Virginia rely on services provided by
senior centers and programs in the various counties in West Virginia which are predominately
funded by state and federal government appropriations; and
Whereas, The citizens of West Virginia have the right to demand that much of the money
provided to senior centers and programs be spent on providing services to seniors rather than
exorbitant salaries for employees and contractors; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
financial operations of senior centers and programs in each county of the state; and, be it
Further Resolved, That the Joint Committee on Government and Finance determine if senior centers and programs are inappropriately using state and federal funding by paying employees and
contractors exorbitant salaries and fees; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 76 - "Requesting the Joint Committee on Government and Finance study the
awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing
certain jobs."
Whereas, In recent years, a number of companies have replaced highly skilled workers from
this state with lower-paid, foreign laborers, a practice known as outsourcing; and
Whereas, In many cases, the impetus for the outsourcing is pressure from domestic and
foreign capital venture companies that see foreign labor as a way of increasing their already
significant profits; and
Whereas, The preservation of jobs in this state is of critical importance to the economic
vitality of the state and the local communities within the state; and
Whereas, The economic dislocation caused by outsourcing jobs threatens the health, safety and welfare of the people of this state; and
Whereas, A company that engages in outsourcing should not enjoy the benefits of a
lucrative state or local procurement contract and should be prohibited from receiving any economic
development assistance or subsidies from state or local government; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing
certain jobs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 78 - "Requesting the Joint Committee on Government and Finance study the State
Wage Payment and Collection Act."
Whereas, Inconsistent terminology, confusing provisions and case law have all impacted
the Act since its initial passage by the Legislature in 1891; and
Whereas, The Wage Payment and Collection Act is in dire need of review to eliminate antiquated terms, confusing procedures and lack of consistent duties and responsibilities for
employers and employees; and
Whereas, The Wage Payment and Collection Act has not undergone a thorough review and
updating in a number of years; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the State
Wage Payment and Collection Act; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study of the Wage
Payment and Collection Act include the development of consistent terminology and clear, concise
and uniform procedure; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 81 - "Requesting the Joint Committee on Government and Finance study the
procedure for applying for funding economic development projects."
Whereas, Numerous state agencies, including the Council for Community and Economic Development, the Housing Development Fund, the Economic Development Authority, the
Infrastructure and Jobs Development Council, the Department of Transportation, the Jobs Investment
Trust, the Parkways, Economic Development and Tourism Authority, the School Building Authority
and the Tourism Commission, receive applications for funding for economic development projects;
and
Whereas, There is insufficient funding resources for every worthy project and no clear
procedure to prescreen and coordinate the application process; and
Whereas, Senate Bill No. 617, introduced during the regular session of the Legislature,
2004, proposes an Economic Development Funding Committee, composed of representatives of state
agencies that fund economic development projects, to develop uniform guidelines for review and
evaluation of applications to determine whether the application should be funded and from what
source; and
Whereas, Under section eleven, article fifteen-a, chapter thirty-one of the code of West
Virginia, all West Virginia infrastructure fund applications must first be reviewed and recommended
by the Council for Community and Economic Development; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
procedure for applying for funding for economic development projects; and, be it
Further Resolved, That every state agency participating in economic development funding
should be included in the study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Messages from the Executive
The Speaker laid before the House of Delegates a Proclamation from His Excellency, the
Governor, which was read by the Clerk as follows:
State of West Virginia
EXECUTIVE DEPARTMENT
Charleston
A P R O C L A M A T I O N
By the Governor
Whereas, the Constitution of West Virginia delineates the respective powers, duties and
responsibilities of the three separate branches of government; and
Whereas, Article 6, Section 22 of the Constitution of West Virginia provides that this
regular session of the Legislature not exceed sixty calendar days computed from and including the
second Wednesday of January; and
Whereas, pursuant to Article 6, Section 22 of the Constitution of West Virginia, the 2004
regular session of the Legislature concludes on March 13, 2004; and
Whereas, Article 6, Section 51 of the Constitution of West Virginia sets forth the legal
authority of the Governor and the Legislature relating to the preparation and enactment of the Budget
Bill; and
Whereas, Subsection D of said section requires the Governor to issue a proclamation to extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular session; and
Whereas, the Legislature has not finally acted upon the Budget Bill three days before the
expiration of this current regular session of the State Legislature.
Now, Therefore, I, Bob Wise, Governor of the State of West Virginia, do hereby issue
the following proclamation, in accordance with Article 6, Section 51, Subsection D(8) of the
Constitution of West Virginia, extending this regular session of the State Legislature for
consideration of the Budget Bill for a period not to exceed eight days beyond the conclusion of this
regular session, including any extension thereof, under the provisions of Section 22 of Article 6 of
the Constitution of West Virginia; but no matters other than the Budget Bill and a provision for the
cost of said extended session shall be considered during this extension of the session.
In Witness Whereof, I have hereunto set my hand and caused the Great Seal of the State
of West Virginia to be affixed.
(Insert Great Seal) DONE at the Capitol in the City of
Charleston, State of West Virginia, on this the
tenth day of March, in the year of our Lord,
Two Thousand Four, and in the One Hundred
Forty-First year of the State.
Bob Wise,
Governor
By the Governor
Joe Manchin, III
Secretary of State
Miscellaneous Business
Delegate Blair announced that he was absent when the votes were taken on Roll Nos. 484
and 485, and that had he been present, he would have voted "Yea" thereon.
At 6:14 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Thursday, March, 11, 2004.