__________*__________
Saturday, April 9, 2005
The House of Delegates met at 9:00 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 Friday, March 8, 2005, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Messages from the Senate
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for S. B. 357, Authorizing Department of Revenue promulgate legislative rules.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 579),
and there were--yeas 65, nays 3, absent and not voting 32, with the nays and absent and not voting
being as follows:
Nays: Armstead, Lane and Walters.
Absent And Not Voting: Amores, Anderson, Beach, Beane, Blair, Border, Brown,
Canterbury, Craig, Doyle, Duke, Eldridge, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Howard,
Hunt, Leach, Long, Mahan, Miley, Schoen, Sobonya, Spencer, Stevens, Susman, Tansill, Thompson, Ron and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 357) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 580), and there were--yeas 70, nays
1, absent and not voting 29, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Amores, Anderson, Beach, Beane, Border, Brown, Canterbury,
Craig, Doyle, Duke, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Leach, Long, Mahan, Miley,
Schoen, Sobonya, Spencer, Stevens, Susman, Tansill, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 357) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Eldridge announced that he was absent when the vote was taken on Roll No. 579,
and that had he been present, he would have voted "Yea" thereon.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com . Sub. for H. B. 2663, Relating to digging, growing, collecting, gathering, possessing
and selling ginseng.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page twenty, section three-a, line two hundred ninety-eight, by striking out the words
"imprisoned in jail" and inserting in lieu thereof the words "confined in a correctional facility".
On page sixteen, section three-a, line two hundred twenty-two, by striking out all of
paragraph (ii).
And,
By renumbering the remaining paragraphs.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
with amendment, as follows:
On page twenty, section three-a, line two hundred ninety-eight, by striking out the words
"confined in a correctional facility" and inserting in lieu thereof "confined in jail".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 581), and there were--yeas
75, nays 1, absent and not voting 24, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Anderson, Beach, Beane, Border, Brown, Canterbury, Craig,
Doyle, Ellem, Ennis, Ferrell, Fragale, Hall, Hatfield, Hunt, Long, Mahan, Miley, Schoen, Sobonya,
Spencer, Tansill, Ron Thompson and Webster.
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. 2663) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2718, Authorizing the Department of Commerce to promulgate
legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the enacting clause and inserting in lieu
thereof the following:
That article 10, chapter 64 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Economic development authority.
The legislative rule filed in the state register on the twenty-fourth day of August, two
thousand four, under the authority of section nine, article thirteen-u, chapter eleven, of this code,
modified by the Economic Development Authority to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on the first day of February, two thousand
five, relating to the Economic Development Authority (high-growth business investment tax credit,
117 CSR 5), is authorized, with the following amendments:
On page three, section three, line 4, by striking all of sections 3.2.b., 3.2.c. and 3.2.c.1 and
inserting in lieu thereof the following:
"3.2.b. The Authority may not allocate more than fifty thousand dollars of this tax credit to
an eligible taxpayer in a fiscal year.
3.2.c. Any unused portion of the tax credit may be carried forward to succeeding taxable
years until the expiration of the fourth taxable year after the taxable year in which the investment was
made. The tax credit remaining thereafter is forfeited."
On page three, section three, line eighteen, following the word "The", by striking out the
word "Statute" and inserting in lieu thereof the words "tax credit".
§64-10-2. Bureau of Employment Programs.
The legislative rule filed in the state register on the nineteenth day of March, two thousand
four, under the authority of section six, article two, chapter twenty-one-a, of this code, modified by
the Bureau of Employment Programs to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the seventeenth day of June, two thousand four,
relating to the Bureau of Employment Programs (implementing the requirement that prohibits agencies from granting, issuing or renewing contracts, licenses, permits, certificates or other
authority to conduct a trade, profession or business, 96 CSR 1), is authorized, with the following
amendment:
On page five, section five, line one, following the word "The", by striking out the word
"authorizing" and inserting the word "approval".
§64-10-3. Division of labor.
(a) The legislative rule filed in the state register on the twelfth day of August, two thousand
four, under the authority of section eleven, article three-c, chapter twenty-one, of this code, modified
by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on the sixteenth day of February, two thousand five, relating to the
Division of Labor (Elevator Safety Act, 42 CSR 21), is authorized, with the following amendments:
On page three, subdivision 6.1., after the words "private inspector may not" by striking out
the words "provide inspection services to an elevator on which the inspector, his or her employer or
employee of his or her employer has made repairs or provided routine maintenance" and inserting
in lieu thereof the words "inspect repairs or routine maintenance work performed by the inspector,
the inspector's employer or another employee of the inspector's employer".
On page three, subdivision 6.1., after the words "may enter into any" by inserting the words
"state owned".
(b) The legislative rule filed in the state register on the twelfth day of August, two thousand
four, under the authority of section twenty, article one, chapter forty-seven, of this code, modified
by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on the sixteenth day of February, two thousand five, relating to the
Division of Labor (weights and measures calibration fees, 42 CSR 26), is authorized.
(c) The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section four, article nine, chapter twenty-one, of this code,
relating to the Division of Labor (West Virginia Manufactured Housing Construction and Safety Standards Board, 42 CSR 19), is authorized.
§64-10-4. Division of Natural Resources.
(a) The legislative rule filed in the state register on the twenty-seventh day of August, two
thousand four, under the authority of section twenty-three-a, article two, chapter twenty, of this code,
relating to the Division of Natural Resources (commercial whitewater outfitters, 58 CSR 12), is
authorized.
(b) The legislative rule filed in the state register on the twenty-third day of August, two
thousand four, under the authority of section seven, article one, chapter twenty, and section eleven,
article two, chapter twenty, of this code, relating to the Division of Natural Resources (commercial
sale of wildlife, 58 CSR 63), is authorized.
(c) The legislative rule filed in the state register on the twelfth day of August, two thousand
four, under the authority of section seven, article one, chapter twenty, of this code, modified by the
Division of Natural Resources to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the state register on the seventeenth day of November, two thousand four,
relating to the Division of Natural Resources (revocation of hunting and fishing licenses, 58 CSR
23), is authorized.
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. 582), and there were--yeas
79, nays 1, absent and not voting 20, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis,
Ferrell, Fragale, Hall, Hatfield, Hunt, Long, Mahan, Miley, Schoen, Sobonya, Ron Thompson and
Webster.
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. 2718) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 583), and there were--yeas 82, nays
none, absent and not voting 18, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis,
Ferrell, Fragale, Hall, Hatfield, Hunt, Mahan, Schoen, Sobonya, Ron Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2718) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2816, Creating the West Virginia Healthy Act of 2005.
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 the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §5-1E-1, §5-1E-2, §5-1E-3, §5-1E-4 and §5-1E-5; and that §18-2-6a, §18-2-7a
and §18-2-9 of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC
WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS,
ETC.
ARTICLE 1E. HEALTHY WEST VIRGINIA PROGRAM.
§5-1E-1. Findings and purposes.
The Legislature finds and declares that the rise in obesity and related weight problems
accompanied by the resulting incidence of chronic disease has created a health care crisis that burdens the health care infrastructure of the state. The Legislature also finds that the State of West
Virginia must take an informed, sensitive approach to communicate and educate the citizens of the
state about health issues related to obesity and inappropriate weight gain. The Legislature further
finds that the state must take action to assist West Virginia citizens in engaging in healthful eating
and regular physical activity. The Legislature further finds that the state must invest in research that
improves understanding of inappropriate weight gain and obesity. These efforts are needed to
coordinate the state's interest in improving the health of its citizens and in reducing the cost of health
care. Therefore, it is the purpose of this article to create, as an integral part of the Department of
Health and Human Resources, an entity to coordinate the efforts of all agencies to prevent and
remedy obesity and related weight problems and to ensure that all citizens are being educated on this
serious health risk that is affecting the state.
§5-1E-2. Creation of the Office of Healthy Lifestyles.
There is hereby created the Office of Healthy Lifestyles within the Department of Health and
Human Resources. The management of this office shall be provided in the manner determined by
the Secretary of the Department of Health and Human Resources to be in the best interest of the state
and its citizens.
§5-1E-3. Powers and duties of the Office.
The Office of Healthy Lifestyles shall:
(1) Establish a Healthy Lifestyle Coalition to assure consistency of the public health and
private sector approach to dealing with programs that address the problems that affect overweight
and obese individuals; to provide a forum for discussing the issues that affect healthy lifestyles and
to identify best practices that can be replicated. By the first day of July, two thousand five, the
Governor shall appoint thirteen members of the Coalition whose terms shall be for a period of four
years, and the members may be reappointed to a second term. The terms may be staggered by the
Governor to assure continuity of experience on the coalition. Members shall represent state agencies,
community organizations and other entities which have an interest and expertise in obesity. Members
may not be compensated but shall receive reimbursement for expenses incurred while performing
the business of the coalition. The Coalition shall meet monthly for at least the first eighteen months of the Coalition to develop and implement an action plan to meet the goals established by the
Coalition;
(2) Establish a clinical advisory committee to assure a unified approach using the latest
research to assure consistency in program development;
(3) Establish a statewide voluntary private sector partnership and recognition program for
employers, merchants, restaurants and other private sector businesses to encourage the development
or further advance current programs that encourage healthy lifestyles;
(4) Coordinate higher education training programs for dietary and exercise physiology
students with rural health care providers;
(5) Coordinate existing health promotion initiatives to assure clear, concise and consistent
communication;
(6) Solicit, accept and expend grants, gifts, bequests, donations and other funds from any
source for programs that will enable the state to accomplish the goals of this program;
(7) Develop a cross-agency series of goals to ensure consistency throughout the system of
providers and agencies working in the area of improving lifestyles;
(8) Establish as a goal to increase the prevalence of healthy weight among all people in the
state because obesity leads to diabetes, heart disease, strokes and kidney failure. These diseases,
often arising in older age as a result of unhealthy lifestyles that began during a person's youth, place
an undue financial burden on individuals, the health care industry and state health care programs;
(9) Consider the resources of the local health departments and recommend ongoing
relationships, as appropriate, between local health departments, family resource networks, faith-
based organizations, cooperative extension services, farm bureaus and other health care providers;
(10) Encourage the development of incentives for participation in employee wellness
programs. Incentives may be based upon, but should not be limited to, the employee's completion
of health questionnaires or participating in healthy lifestyles initiatives, and may use experiences of
successful initiatives that have occurred in this state. The action plan should include among its
targets, state government employees in this incentive program;
(11) Build upon existing initiatives that focus on any of the coalition's goals, soliciting input from these initiatives and eliminating duplication of efforts;
(12) Report its progress annually by the first of December to the Legislative Oversight
Commission on Health and Human Resource Accountability.
§5-1E-4. Partnership to encourage healthy lifestyles by children and families.
(a) The West Virginia Healthy Lifestyles program will develop a statewide voluntary private
sector partnership program to work with businesses throughout the State that encourage and promote
healthy lifestyles among their employees and communities.
(b) Beginning the first day of July, two thousand five, those businesses voluntarily choosing
to participate in the Healthy Lifestyles program shall submit their own detailed programs to the
Office of Healthy Lifestyles for review. The programs should be creative and unique, highlighting
the efforts of the business to promote healthy lifestyles to West Virginians through sensible diet and
physical fitness.
(c) The West Virginia Healthy Lifestyles program will develop a recognition program for
private sector enterprises that develop or advance programs that address the problems affecting
overweight and obese individuals and that promote a healthy lifestyle.
(d) Any business program promoting healthy lifestyles that is recognized by the Office of
Healthy Lifestyles will be issued a universally recognized logo, suitable for public display by the
business.
(e) Marketing of programs recognized by the Office of Healthy Lifestyles shall take place
through all state agencies. The West Virginia Public Employees Insurance Agency, the Bureau for
Medical Services and the West Virginia Workers' Compensation Commission shall aggressively
market this program to their members for the purposes of health promotion among their members.
(f) The Office of Healthy Lifestyles shall market recognized programs to other businesses,
as models, to help create additional programs promoting healthy lifestyles.
(g) The Office of Healthy Lifestyles shall report annually by the first day of December to the
Legislative Oversight Commission on Health and Human Resources Accountability: (1) The number
of participants; (2) the impact on businesses as established by a survey of participating businesses;
and (3) the results of consumer satisfaction surveys all designed by the Office of Healthy Lifestyles.
§5-1E-5. Creation of a Healthy Lifestyles Fund.
There is hereby created in the State Treasury a separate special revenue account, which shall
be an interest bearing account, to be known as the 'Healthy Lifestyles Fund'. The special revenue
account shall consist of all appropriations made by the Legislature, income from the investment of
moneys held in the special revenue account and all other sums available for deposit to the special
revenue account from any source, public or private. No expenditures for purposes of this section are
authorized from collections except in accordance with the provisions of article three, chapter twelve
of this code and upon fulfillment of the provisions set forth in article two, chapter eleven-b of this
code. Any balance remaining in the special revenue account at the end of any state fiscal year does
not revert to the general revenue fund but remains in the special revenue account and shall be used
solely in a manner consistent with this article. No expenses incurred under this section shall be a
charge against the general funds of the state.
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-6a. Sale of healthy beverages and soft drinks in schools.
(a) In order to generate funding for necessary programs and supplies, county boards may
permit the sale of healthy beverages and soft drinks in county high schools except during breakfast
and lunch periods as follows:
(1) During a school day, soft drinks may not be sold in areas accessible to students in an
elementary school, middle school or junior high school through vending machines on the premises,
in school stores or in school canteens or through fund raisers by students, teachers, groups or by any
other means. In elementary, middle school or junior high school, only healthy beverages may be sold
in vending machines on the premises, in school canteens or through fundraisers by students, teachers,
groups or by any other means. Nothing in this section shall be construed to prohibit or limit sale or
distribution of any food or beverage item through fund-raising activities of students, teachers or
educational groups when the items are intended for sale off the school grounds.
(2) Those high schools which permit the sale of soft drinks through vending machines also shall offer for sale healthy beverages. Of the total beverages offered for sale, at least fifty percent
shall be healthy beverages. Vending machines containing healthy beverages shall be in the same
location or substantially similar location as vending machines containing soft drinks.
(3) The sale of such healthy beverages and soft drinks shall be in compliance with the rules
of the National School Lunch Program and the School Breakfast Program of the State Board and the
Nutrition Service of the United States Department of Agriculture, which became effective on the
seventeenth day of June, one thousand nine hundred eighty-five. Provided, That, if under such rules,
the sale of soft drinks shall become prohibited, such rules shall not prohibit the sale of soft drinks
in high schools in the state of West Virginia. Seventy-five percent of the profits from the sale of
healthy beverages and soft drinks shall be allocated by a majority vote of the faculty senate of each
school and twenty-five percent of the profits from the sale of healthy beverages and soft drinks shall
be allocated to the purchase of necessary supplies by the principal of the school.
(b) For the purposes of this section:
(1) 'School day' means the period of time between the arrival of the first student at the school
building and the end of the last instructional period; and
(2) 'Healthy beverage' means water, one hundred percent fruit and vegetable juice, low-fat
milk and other juice beverages with a minimum of twenty percent real juice.
§18-2-7a. Legislative findings; required physical education; program in physical fitness.
(a) The Legislature hereby finds that obesity is a problem of epidemic proportions in this
state. There is increasing evidence that all segments of the population, beginning with children, are
becoming more sedentary, more overweight, and more likely to develop health risks and diseases
including Type II Diabetes, high blood cholesterol and high blood pressure. The Legislature further
finds that the promotion of physical activity during the school day for school children is a crucial
step in combating this growing epidemic and in changing the attitudes and behavior of the residents
of this state toward health promoting physical activity.
(b) As a result of these findings, the State Department of Education shall establish the
requirement that each child enrolled in the public schools of this state actively participates in
physical education classes during the school year to the level of his or her ability as follows:
(1) Kindergarten to and including grade five. -- Not less than thirty minutes of physical
education, including physical exercise and age appropriate physical activities, for not less than three
days a week.
(2) Grade six to and including grade eight. -- Not less than one full period of physical
education, including physical exercise and age appropriate physical activities, each school day of one
semester of the school year.
(3) Grade nine to and including grade twelve. -- Not less than one full course credit of
physical education, including physical exercise and age appropriate physical activities which shall
be required for graduation and the opportunity to enroll in an elective lifetime physical education
course.
(c) Enrollment in physical education classes and activities required by the provisions of this
section shall not exceed, and shall be consistent with, state guidelines for enrollment in all other
subjects and classes: Provided, That schools which do not currently have the number of certified
physical education teachers or required physical setting may develop alternate programs that will
enable current staff and physical settings to be used to meet the physical education requirements
established herein. These alternate programs shall be submitted to the State Department of
Education and the Healthy Lifestyle Council for approval. Those schools needing to develop
alternate programs shall not be required to implement this program until the school year commencing
two thousand six.
(d) The State Board of Education shall prescribe a program within the existing health and
physical education program which incorporates the fitness testing, awards reporting, recognition,
fitness events and incentive programs designed under the auspices of the President's Council on
Physical Fitness and Sports and which requires the participation through grade in grades four through
eight and the required high school course nine of each student and of each school in the state in both
the challenge program and the state champion program of the council. The program shall be selected
from nationally accepted fitness testing programs designed for school-aged children that test
cardiovascular fitness, muscular strength and endurance, flexibility and body composition:
Provided, That nothing in this subsection shall be construed to prohibit the use of programs designed under the auspices of the President's Council on Physical Fitness and Sports. The program shall
include the modified test tests for exceptional students. Each school in the state shall participate in
National Physical Fitness and Sports Month in May of each year and shall make every effort to
involve the community it serves in the related events.
(e) Body mass index measures shall be used as an indicator of progress toward promoting
healthy lifestyles among school-aged children. The body mass index measures shall be determined
using student height and weight data and reported to the State Department of Education via the West
Virginia Education Information System. Body mass index measures shall be included in
kindergarten screening procedures. Students in grades four through eight and students enrolled in
high school physical education courses shall have their body mass index measured through required
fitness testing procedures. All school personnel responsible for conducting and reporting body mass
index measures shall receive training or written documentation on the appropriate methodology for
assessing the body mass index and reporting data in a manner that protects student confidentiality.
All body mass index data shall be reported in aggregate to the Governor, the State Board of
Education, the Healthy Lifestyles Coalition and the Legislative Oversight Commission on Health and
Human Resource Accountability.
§18-2-9. Required courses of instruction; violation and penalty.
(a) In all public, private, parochial and denominational schools located within this state there
shall be given prior to the completion of the eighth grade at least one year of instruction in the history
of the state of West Virginia. Such The schools shall require regular courses of instruction by the
completion of the twelfth grade in the history of the United States, in civics, in the constitution of
the United States, and in the government of the state of West Virginia for the purpose of teaching,
fostering and perpetuating the ideals, principles and spirit of political and economic democracy in
America and increasing the knowledge of the organization and machinery of the government of the
United States and of the state of West Virginia. The State Board of education shall, with the advice
of the State Superintendent, of schools prescribe the courses of study covering these subjects for the
public schools. It shall be the duty of the officials or boards having authority over the respective
private, parochial and denominational schools to prescribe courses of study for the schools under their control and supervision similar to those required for the public schools. To further such study,
every high school student eligible by age for voter registration shall be afforded the opportunity to
register to vote pursuant to section twenty-two, article two, chapter three of this code.
(b) The State Board of education shall cause to be taught in all of the public schools of this
state the subject of health education, including instruction in any of the grades six through twelve
as deemed considered appropriate by the county board, on (1) the prevention, transmission and
spread of acquired immune deficiency syndrome and other sexually transmitted diseases, and (2)
substance abuse, including the nature of alcoholic drinks and narcotics, tobacco products, and other
potentially harmful drugs, with special instruction as to their effect upon the human system and upon
society in general and (3) the importance of healthy eating and physical activity to maintaining
healthy weight. The course curriculum requirements and materials for such the instruction shall be
adopted by the State Board by rule in consultation with the Department of Health and Human
Resources. The State Board shall prescribe a standardized health education assessment to be
administered within health education classes to measure student health knowledge and program
effectiveness.
An opportunity shall be afforded to the parent or guardian of a child subject to instruction
in the prevention, transmission and spread of acquired immune deficiency syndrome and other
sexually transmitted diseases to examine the course curriculum requirements and materials to be
used in such the instruction. The parent or guardian may exempt such the child from participation
in such the instruction by giving notice to that effect in writing to the school principal.
(c) Any person violating the provisions of this section shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not exceeding ten dollars for each violation, and each week
during which there is a violation shall constitute a separate offense. If the person so convicted
occupy a position in connection with the public schools, that person shall automatically be removed
from such that position and shall be ineligible for reappointment to that or a similar position for the
period of one year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2816 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §5-1E-1, §5-1E-2, §5-1E-3, §5-1E-4 and §5-1E-5; and
to amend and reenact §18-2-6a, §18-2-7a and §18-2-9 of said code, all relating to promoting healthy
lifestyles; creating a Healthy Lifestyles Office in the Department of Health and Human Resources;
establishing the functions of the Office; creating a special revenue account; establishing a voluntary
private sector partnership program to encourage healthy lifestyles; establishing physical activity
requirements in the schools; using body mass index as an indicator of progress; encouraging the use
of healthy beverages in schools; and adding requirements for health education."
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. 584), and there were--yeas
81, nays none, absent and not voting 19, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Beane, Border, Brown, Canterbury, Craig, Doyle, Ennis,
Ferrell, Fragale, Hall, Hatfield, Hunt, Iaquinta, Mahan, Schoen, Sobonya, Ron Thompson and
Webster.
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. 2816) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2866, Providing for continuation of tuition and fee payments to members after
discharge from military service due to wounds or injuries received in the line of duty.
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 twenty-one, line twelve, by striking out the word "such" and inserting
in lieu thereof the word "the".
On page two, section twenty-one, line seventeen, by striking out the word "such" and
inserting in lieu thereof the word "the".
On page two, section twenty-one, line nineteen, after the word "may" by inserting the word
"it".
And,
On page three, section twenty-one, line thirty-one, by striking out the word "Such" and
inserting in lieu thereof the word "The".
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. 585), and there were--yeas
87, nays none, absent and not voting 13, with the absent and not voting being as follows:
Absent And Not Voting: Beane, Canterbury, Doyle, Ennis, Ferrell, Fragale, Hall, Hatfield,
Hunt, Mahan, Schoen, Ron Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2866) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 586), and there were--yeas 91, nays
none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Mahan, Ron
Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2866) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3018, Relating to designation of Mountaineer Challenge Academy as a special alternative education program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages three through seven, by striking out all of section six and inserting in lieu thereof
a new section six, to read as follows:
"§18-2-6. Classification and standardization of schools; standards for degrees and diploma;
certificates of proficiency; establishment of alternative education programs.
(a) The State Board shall make promulgate rules for the accreditation, classification and
standardization of all schools in the state, except institutions of higher education, and shall determine
the minimum standards for the granting of diplomas and certificates of proficiency by those schools.
Not later than the school year one thousand nine hundred ninety--ninety-one, The certificates of
proficiency including shall include specific information regarding the graduate's skills, competence
and readiness for employment or honors and advanced education and shall be granted, along with
the diploma, to every eligible high school graduate. The certificate of proficiency shall include the
program of study major completed by the student only for those students who have completed the
required major courses, or higher level courses, advanced placement courses, college courses or
other more rigorous substitutes related to the major, and the recommended electives.
No (b) An institution of less than collegiate or university status may not grant any diploma
or certificate of proficiency on any basis of work or merit below the minimum standards prescribed
by the State Board.
No (c) A charter or other instrument containing the right to issue diplomas or certificates of
proficiency shall may not be granted by the State of West Virginia to any institution or other
associations or organizations of less than collegiate or university status within the state until the
condition of granting or issuing such diplomas or other certificates of proficiency has first been
approved in writing by the State Board.
(d) The State Board also may establish policies and procedures shall promulgate a rule for
the approval of alternative education programs for disruptive students who are at risk of not succeeding in the traditional school structure. These policies and procedures This rule may provide
for the waiver of other policies of the State Board, the establishment and delivery of a nontraditional
curriculum, the establishment of licensure requirements for alternative education program teachers,
and the establishment of performance measures for school accreditation.
(e) If a student attends an approved alternative education program or the Mountaineer
Challenge Academy, which is designated as a special alternative education program pursuant to
section twenty-four, article one-b, chapter fifteen of this code, and the student graduates or passes
the General Equivalency Development (GED) tests within five years of beginning ninth grade, that
student shall be considered graduated for the purposes of calculating the high school graduation rate
used for school accreditation and school system approval, subject to the following:
(1) The student shall only be considered graduated to the extent that this is not in conflict
with any provision of federal law relating to graduation rates;
(2) If the State Board determines that this is in conflict with a provision of federal law
relating to graduation rates, the State Board shall request a waiver from the United States Department
of Education; and
(3) If the waiver is granted, notwithstanding the provisions of subdivision (1) of this
subsection, the student graduating or passing the General Educational Development (GED) tests
within five years shall be considered graduated.
(f) The State Board shall promulgate a rule to support the operation of the National Guard
Youth Challenge Program operated by the Adjutant General and known as the 'Mountaineer
Challenge Academy' which is designated as a special alternative education program pursuant to
section twenty-four, article one-b, chapter fifteen of this code, for students who are at risk of not
succeeding in the traditional school structure. The rule shall set forth policies and procedures
applicable only to the Mountaineer Challenge Academy that provide for, but are not limited to, the
following:
(1) Implementation of provisions set forth in section twenty-four, article one-b, chapter
fifteen of this code;
(2) Precedence of the policies and procedures designated by the National Guard Bureau for the operation of the Mountaineer Challenge Academy special alternative education program;
(3) Consideration of a student participating in the Mountaineer Challenge Academy special
alternative education program at full enrollment status in the referring county for the purposes of
funding and calculating attendance and graduation rates, subject to the following:
(A) The student shall only be considered at full enrollment status for the purposes of
calculating attendance and graduation rates to the extent that this is not in conflict with any provision
of federal law relating to attendance or graduation rates;
(B) If the State Board determines that this is in conflict with a provision of federal law
relating to attendance or graduation rates, the State Board shall request a waiver from the United
States Department of Education;
(C) If the waiver is granted, notwithstanding the provisions of paragraph (A) of this
subdivision, the student shall be considered at full enrollment status in the referring county for the
purposes of calculating attendance and graduation rates; and
(D) Consideration of the student at full enrollment status in the referring county is for the
purposes of funding and calculating attendance and graduation rates only. For any other purpose,
a student participating in the Academy is considered withdrawn from the public school system.
(4) Articulation of the knowledge, skills and competencies gained through alternative
education so that students who return to regular education may proceed toward attainment or attain
the standards for graduation without duplication; and
(5) Consideration of eligibility to take the General Educational Development (GED) Tests
by qualifying within the extraordinary circumstances provisions established by State Board rule of
a student participating in the Mountaineer Challenge Academy special alternative education program
who does not meet any other criteria for eligibility.
(g) Nothing in this section or the rules promulgated hereunder compels the Mountaineer
Challenge Academy to be operated as a special alternative education program or to be subject to any
other laws governing the public schools except by its consent.
(h) The State Board shall report to the Legislative Oversight Commission on Education
Accountability on or before the first day of January of each year on its efforts to cooperate with and support the Mountaineer Challenge Academy pursuant to this section and section twenty-four, article
one-b, chapter fifteen of this code."
And,
By amending the title of the bill to read as follows:
H. B. 3018 - "A Bill to amend and reenact §15-1B-24 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §18-2-6 of said code, all relating to cooperation of the State
Board of Education with the Mountaineer Challenge Academy; mandating a rule for the approval
of alternative education programs; diplomas and certificates of proficiency; designation of Academy
as special alternative education program; calculation of graduation rate for student attending an
approved alternative education program or the Academy; requiring State Board rule to support the
operation of the Academy; providing minimum provisions to be included in the rule; application
limited to Academy consent; requiring report to Legislative Oversight Commission on Education
Accountability; and technical amendments."
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. 587), and there were--yeas
92, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson
and Webster.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3018) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3031, Prohibiting unlicensed practice of landscape architecture.
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 clause and inserting in lieu thereof
the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §30-22-5a, to read as follows:
ARTICLE 22. LANDSCAPE ARCHITECTS.
§30-22-5a. Limited fee increase.
Notwithstanding the fees set forth in this article, the West Virginia State Board of Landscape
Architects is hereby authorized to increase the fees it assesses under the provisions of this article.
The fee increase shall be for one year, commencing the first day of July, two thousand five. Each
increased fee may not exceed one hundred dollars."
And,
By amending the title of the bill to read as follows:
H. B. 3031 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §30-22-5a, relating to the West Virginia State Board of Landscape
Architects; authorizing an increase of fees for one year; and limiting the increase."
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. 588), and there were--yeas
83, nays 9, absent and not voting 8, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Carmichael, Lane, Sumner, Rick Thompson, Trump and
Walters.
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson
and Webster.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3031) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 589), and there were--yeas 91, nays
none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hartman, Hunt, Ron
Thompson and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3031) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 3051, Relating to defining certain terms relative to hunting.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section two, line forty-three, by striking out the word "galliformes" and
inserting in lieu thereof the word "gallinule".
And,
On page four, line forty-five, by striking out the word "galli" and inserting in lieu thereof the
word "galliformes".
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. 590), and there were--yeas
90, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson
and Webster.
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. 3051) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3203, Authorizing the closure of certain existing retirement funds for municipal
policemen and firemen and establishment of a defined contribution plan in lieu thereof.
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 §8-13C-1 and §8-13C-9 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; and that said code be amended by adding thereto a new section, designated §8-13C-
14, all to read as follows:
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX;
AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS;
ADDITIONAL AUTHORITIES RELATING TO PENSIONS AND
BOND ISSUANCE.
§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the citizens of the state;
(b) Imposing additional taxes can be detrimental to the economy of the state;
(c) Imposing additional taxes is only proper under certain circumstances;
(d) For many municipalities with severe unfunded liabilities of the police and fire pension
funds, all available sources of local revenue have been exhausted. Property taxes are at the
maximum allowed by the State Constitution and local business and occupation taxes and utility taxes
are at the maximum rates allowed by state law. Other fees have reached the economic maximum
and are causing relocation of business outside the municipal boundaries;
(e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of
significant future growth;
(f) For many municipalities with severe unfunded police and fire pension fund liabilities,
payments required under state law to fund fire and police pension funds are now close to equaling
the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year
period;
(g) For many municipalities with severe unfunded police and fire pension fund liabilities,
payments required under state law to fund fire and police pension funds now constitute a large
percentage of those municipalities' total budget and will rise to an even larger percentage of the
available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities
by state law;
(h) As the required pension payments rise, many of the municipalities with severe unfunded
police and fire pension fund liabilities will find it impossible to maintain at minimum levels
necessary and proper city services including, but not limited to, police and fire protection, street
maintenance and repair and sanitary services;
(i) For some of the municipalities with severe unfunded liabilities of the police and fire
pension funds, the combination of the steeply rising pension obligations and the stagnant revenue
sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this
happens, pensioners would either not receive the full benefits which they have been promised or
pressure would be placed on the state to fund these programs;
(j) For a municipality that has the most severe unfunded liability in its pension funds, paying
off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss
of many services that would otherwise be provided to the municipality's citizens;
(k) Only for a municipality that has the most severe unfunded liability in its pension funds
would the imposition of the pension relief municipal occupational tax, the pension relief municipal
sales and service tax, the pension relief municipal use tax or any combination of those taxes be an
appropriate method of addressing the unfunded liability; and
(l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax
and an alternative municipal use tax be appropriate;
(m) Only for a municipality that has the most severe unfunded liability in its pension funds
would the closure of its existing pension and relief fund plan for policemen and firemen to those
newly employed and the creation of a defined contribution plan for newly employed policemen and
firemen be appropriate; and
(n) Only for a municipality that has the most severe unfunded liability in its pension funds,
that closes its existing pension and relief fund plan for policemen and firemen to those newly
employed and that creates a defined contribution plan for newly employed policemen and firemen,
would the issuance of bonds to address the unfunded liability of its existing pension and relief fund
plan for policemen and firemen be appropriate.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal
sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be
used solely for one of the purpose of following purposes:
(1) Directly reducing the unfunded actuarial accrued liability of policemen's and firemen's
pension and relief funds of the qualifying municipality imposing the tax; or The proceeds used for
this purpose shall be in addition to the minimum annual contribution required by section twenty,
article twenty-two of this chapter.
(2) Meeting the principal, interest and any reserve requirement obligations of any bonds
issued pursuant to section fourteen of this article.
(b) A qualifying municipality loses its authority to impose a pension relief municipal
occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use
tax pursuant to this article after: For any qualifying municipality that chooses to apply the proceeds
from a pension relief municipal occupational tax, a pension relief municipal sales and service tax,
a pension relief municipal use tax or any permitted combination of these taxes directly to reducing
the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds, the
qualifying municipality loses its authority to impose those taxes after:
(1) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and
firemen's pension and relief funds is eliminated; or
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational
tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any
permitted combination of these taxes to eliminate the unfunded actuarial accrued liability of the
qualifying municipality's policemen's and firemen's pension and relief funds.
(c) For any qualifying municipality that chooses to apply the proceeds from a pension relief
municipal occupational tax, a pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes to the principal, interest and any
reserve requirement and arbitrage rebate obligations on any bonds issued pursuant to section fourteen
of this article, the qualifying municipality loses its authority to impose those taxes after:
(1) The principal, interest and any reserve requirement and arbitrage rebate obligations on
the bonds issued pursuant to section fourteen of this article are met; or
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational
tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any
permitted combination of these taxes to meet the principal, interest and any reserve requirement and
arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article; and
(3) After retirement of bonds issued pursuant to section fourteen of this article, any unfunded
actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and
relief funds is eliminated.
§8-13C-14. Authorization for closure of existing retirement plans, creation of defined
contribution plans and issuance of bonds for certain qualifying
municipalities.
(a) Notwithstanding any other section of code to the contrary and subject to subsection (b)
of this section, any qualifying municipality, as that term is defined in section two of this article, has
the following authority:
(1) To close its existing pension and relief fund plan for policemen and firemen provided in
article twenty-two of this chapter for policemen and firemen hired on and after a future date to be set by the governing body of the municipality;
(2) To establish a defined contribution plan for policemen and firemen hired on and after the
future date set by the governing body of the municipality to close its existing pension and relief fund
plan for policemen and firemen; and
(3) to issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued
liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding
bonds issued to refund, in whole or in part, bonds issued for such purpose.
(b) The authority granted in subsection (a) of this section is subject to the following:
(1) No qualifying municipality may close an existing pension and relief fund plan for
policemen and firemen pursuant to subdivision (1), subsection (a) of this section unless the
qualifying municipality also establishes a defined contribution plan for policemen and firemen
pursuant to subdivision (2), subsection (a) of this section. No qualifying municipality may establish
a defined contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of
this section unless the qualifying municipality also closes its existing pension and relief fund plan
for policemen and firemen pursuant to subdivision (1), subsection (a) of this section. No qualifying
municipality may issue bonds pursuant to subdivision (3), subsection (a) of this section unless the
qualifying municipality also closes its existing pension and relief fund plan for policemen and
firemen pursuant to subdivision (a) (1), subsection (a) of this section and establishes a defined
contribution plan for policemen and firemen pursuant to subdivision (2), subsection (a) of this
section. If a qualifying municipality elects not to issue bonds pursuant to subdivision (3), subsection
(a) of this section, nothing in this section may be construed to prohibit the qualifying municipality
from closing its existing pension and relief fund plan for policemen and firemen pursuant to
subdivision (1), subsection (a) of this section and establishing a defined contribution plan for
policemen and firemen pursuant to subdivision (2), subsection (a) of this section.
(2) No qualifying municipality may exercise any authority provided in subsection (a) of this
section unless it obtains a determination of the unfunded actuarial accrued liability of its existing
pension and relief fund plans for policemen and firemen from the State Treasurer;
(3) If the qualifying municipality chooses to issues bonds pursuant to subdivision (3), subsection (a) of this section, the following applies:
(A) The proceeds of the revenue bonds shall be at least equal to the unfunded actuarial
accrued liability as determined by the State Treasurer plus any reserve fund requirements and any
costs, including accrued or capitalized interest, associated with issuing the bonds. All of the
proceeds shall be applied to the payment of the unfunded actuarial accrued liability, the funding of
reserve requirements and the payment of costs associated with the issuance of the bonds, and may
not be used for any other purpose; and
(B) The proceeds of any refunding bonds shall be used to refund all or any portion of the
revenue bonds authorized in this section, to fund any required reserve requirements for such
refunding bonds and to pay costs of issuance associated with such refunding bonds and for no other
purpose;
(4) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection
(a) (1) of this section, the qualifying municipality shall impose a pension relief municipal
occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax
or any permitted combination of these taxes at a rate projected to generate sufficient revenue to meet
the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds,
subject to the following:
(A) This requirement is void after the qualifying municipality loses its authority to impose
those taxes pursuant to subsections (b) or (c), section nine of this article; and
(B) If the revenue generated by a pension relief municipal occupational tax, a pension relief
municipal sales and service tax and a pension relief municipal use tax is insufficient to meet the
principal, interest, and any reserve requirement and arbitrage rebate obligations on the bonds, the
qualifying municipality shall not issue the bonds;
(5) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection
(a) of this section, all proceeds from the taxes shall be dedicated solely to paying the principal,
interest and any reserve requirement and arbitrage rebate obligations on the bonds;
(6) If the qualifying municipality elects to close an existing pension and relief fund plan for
policemen and firemen pursuant to subdivision (1), subsection (a) of this section, all current and retired employees in the existing pension and relief fund plans for policemen and firemen shall
remain in that plan and shall be paid all benefits of that plan in accordance with Part III, article
twenty-two of this chapter;
(7) Any such revenue bonds or refunding bonds shall bear interest at not more than twelve
percent per annum, payable semiannually, or at shorter intervals, and shall mature at such time or
times, not exceeding thirty years, as may be determined by the ordinance authorizing the issuance
of such bonds. Such bonds may be made redeemable before maturity, at the option of the
municipality at not more than the par value thereof, plus a premium of not more than five percent,
under such terms and conditions as may be fixed by the ordinance authorizing the issuance of the
bonds. The principal and interest of the bonds may be made payable in any lawful medium. The
ordinance shall determine the form of the bonds and shall set forth any registration or conversion
privileges, and shall fix the denomination or denominations of such bonds, and the place or places
of the payment of principal and interest thereof, which may be at any banking institution or trust
company within or without the state. The bonds shall contain a statement on their face that the
municipality shall not be obligated to pay the same, or the interest thereon, except from the special
fund derived from revenues collected by the municipality from the imposition of a pension relief
municipal occupational tax, a pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes and which the municipality may
pledge as security for such bonds. All such bonds shall be, and shall have and are hereby declared
to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial
Code of the state. The bonds shall be executed in such manner as the governing body of the
municipality may direct. The bonds shall be sold by municipality in such manner as may be
determined to be for the best interest of the municipality. Any surplus of the bond proceeds over and
above the cost of paying the unfunded liability, plus any amount required for reserves, capitalized
interest and costs of issuance thereof or in the case of refunding bonds over and above the amount
necessary to refund the existing bonds being refunded by such issue, plus any amount required for
reserves, capitalized interest and costs of issuance thereof, shall be paid into the debt service fund
for such bonds; and
(8) The defined contribution plan established by the municipality shall:
(A) Meet the federal qualification requirements of 26 U.S.C. §401 and related sections of the
Internal Revenue Code as applicable to governmental plans;
(B) Set the amount of each employee's contribution and the amount of each employer's
contribution;
(C) Require that the amount of annuity payments a retired member receives be based solely
upon the balance in the member's annuity account at the date of retirement, the retirement option
selected, or in the event of an annuity option being selected, the actuarial life expectancy of the
member of any other factors that normally govern annuity payments;
(D) Include detailed provisions that require the prudent and safe handling of the retirement
funds;
(E) Provide retirement options; and
(F) Include any other provision and authorize any policy that the qualifying municipality
determines is necessary or incidental to the establishment and operation of the defined contribution
plan. The other provisions may include, but are not limited to, the authorization to contract with a
one or more private pension, insurance, annuity, mutual fund or other qualified company or
companies to administer the day-to-day operations of the plan and to provide investments.
(c) The right of any person to a benefit provided under a defined contribution plan established
by a qualifying municipality pursuant to this section shall not be subjected to execution, attachment,
garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever nor shall
any assignment thereof be enforceable in any court with the exception that the benefits or
contributions under the plan shall be subject to 'qualified domestic relations orders' as that term is
defined in 26 U.S.C. §414 with respect to governmental plans.
(d) The interest earned on any bonds issued under the authority granted in this section is
exempt from any tax imposed under the provisions of this code."
And,
By amending the title of the bill to read as follows:
H. B. 3203 - "A Bill to amend and reenact §8-13C-1 and §8-13C-9 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §8-
13C-14, all relating to the use of proceeds from a pension relief municipal occupational tax, a
pension relief municipal sales and service tax and a pension relief municipal use tax; the loss of
authority to impose those taxes; authorizing a qualifying municipality, subject to meeting certain
requirements, to close their existing pension and relief fund plan for policemen and firemen to those
hired after a future date; authorizing a qualifying municipality, subject to meeting certain
requirements, to establish a defined contribution plan for policemen and firemen hired on and after
the future date; and authorizing policy and authorizing a qualifying municipality, subject to meeting
certain requirements, to issue revenue bonds for the purpose of eliminating the unfunded actuarial
accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue
refunding bonds issued to refund, in whole or in part, bonds issued for that purpose."
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. 591), and there were--yeas
90, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt, Ron Thompson
and Webster.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3203) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3281, Relating to making it a crime to alter, destroy, or tamper with computer
equipment containing voter registration information.
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 clause and inserting in lieu thereof
the following:
"That §3-9-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-1. False or fraudulent returns; tampering with, destroying or misdelivering ballots,
records, etc.; forgeries; aiding, etc., in offense; penalties.
Every person named and identified in this section, who shall violate any of the provisions of
the election laws as herein specified, shall be deemed guilty of a felony and, upon conviction thereof,
shall be punished by imprisonment in the penitentiary a state correctional facility for not less than
one nor more than ten years:
(a) Any commissioner of election or poll clerk who shall knowingly make or cause to be
made, or conspire with others to make, a false return of the result of the votes cast for any candidate
at any precinct in an election held pursuant to law; or
(b) Any commissioner of election receiving the ballot of a voter to be deposited in the ballot
box at any election precinct, who shall put another ballot in the box instead of the one received by
him; or
(c) Any commissioner of election or poll clerk, who knowingly shall count and string a ballot
not taken from the ballot box, in lieu of one taken, or which should have been taken from such ballot
box; or
(d) Any commissioner of a county court, whether acting as such or ex officio as a member
of a board of canvassers or otherwise, clerk of a county court, or other person, who shall, except as
authorized by law, abstract any ballot from any package of ballots voted, sealed or returned from any
election precinct, either before or after they are filed with the clerk of the county court, or who shall
in any manner change any such ballot from what it was when voted by the voter, or who shall put
another ballot in such package in the place of the one so abstracted therefrom; or
(e) Any commissioner of a county court, whether acting as such commissioner or ex officio as a member of a board of canvassers, or otherwise, who shall knowingly make and enter of record,
or in any way aid, counsel, or advise the same to be done, or permit the same to be done without
objection on his part, any false or fraudulent statement of the result of any election held within the
county; or
(f) Any person who shall falsely make, or fraudulently deface, or fraudulently destroy, any
certificate of nomination, or any part thereof, or file any certificate of nomination, knowing the same,
or any part thereof, to be falsely made, or suppress any certificate of nomination which has been duly
filed, or any part thereof; or erase, deface, or change in any manner, any election record, or any
ballot, poll book, tally sheet or certificate of election, deposited with either of the clerks of the county
or circuit courts; or conspire with another to do any of said acts; or induce or attempt to induce any
other persons to do any of said acts; or
(g) Any person who shall aid, assist, counsel or advise in the commission of any of the
offenses above specified, whether or not said acts, or any of them be committed or attempted to be
committed; or
(h) Any person, who, without the assent of another, shall sign the name of such other person
to any certificate, affidavit, ballot, report, statement or writing, required under any provision of this
chapter, with intent to mislead and deceive; or who shall use or employ any certificate, affidavit,
ballot, report, statement or writing to which the name of a person has been signed without the
authority of such person, knowing that such name has been so signed with intent to mislead or
deceive; or
(i) Any clerk of a court, poll clerk, member of the board of ballot commissioners,
commissioner of election, or messenger intrusted with the custody of the ballots, who shall open
unlawfully any of the packages in which the ballots are contained, or permit any of them to be
opened, or destroy any of such ballots, or permit them to be destroyed, or give, or deliver any such
packages or ballots to any person not lawfully entitled to receive them, as in this chapter provided,
or conspire to procure, or in any way aid, abet, or connive at any robbery, loss or unlawful
destruction of any such ballots or packages; or
(j) Any person not duly authorized by law who shall, during the progress of any election in this state, or after the closing of the polls and before the ballots are counted and the results
ascertained, or within twelve months thereafter, open without breaking, or break open or violate, the
seals or locks of any ballot box, paper, envelope or bag, in which ballots have been deposited at or
after such election, or who shall obtain possession of such ballot box, paper, envelope or bag
containing such ballots, and cancel, withhold, or destroy such ballots, or who shall fraudulently or
forcibly add to or diminish the number of ballots legally deposited therein, or who shall fraudulently
make any erasure or alteration of any kind, upon any tally sheet, poll book, list of voters, or election
returns, deposited therein; or
(k) Any person who knowingly, willfully and without authorization from the Secretary of
State, a county clerk or municipal clerk directly or indirectly, tampers with, deletes, alters, damages
or destroys or attempts to tamper with, delete, alter, damage or destroy any computer or computer
network that contains voter registration files, records or data or who knowingly introduces, directly
or indirectly, a computer contaminant into any computer, computer program or computer network
that contains voter registration files, records or data; or
(l) Any person who knowingly, directly or indirectly, accesses, attempts to access, or causes
to be accessed any voter registration files, records or data stored on or in a computer owned by the
Secretary of State, a county commission or municipality, without authorization; or
(m) Any person employed by the Secretary of State, a county commission or a municipality
who knowingly, directly or indirectly accesses, attempts to access or causes to be accessed any voter
registration files, records or data stored on or in a computer in an unauthorized manner, in excess
of his or her authorization or for unauthorized use or purpose."
And,
By amending the title of the bill to read as follows:
H. B. 3281 - "A Bill to amend and reenact §3-9-1 of the Code of West Virginia, 1931, as
amended, relating to the crime of altering, destroying, or tampering with computer equipment
containing voter registration information; accessing or attempting to access confidential voter
registration information; and 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. 592), and there were--yeas
91, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Crosier, Doyle, Ennis, Ferrell, Fragale, Hunt and
Ron Thompson.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3281) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3356, Powers and duties of solid waste management board.
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 twenty-six, line four, by striking out the word "authority" and inserting
in lieu thereof the word "authorities".
On page three, section twenty-six, line nine, by striking out the words "operates a" and
inserting in lieu thereof the word "operate".
On page three, section twenty-six, line ten, by striking out the word "facility" and inserting
in lieu thereof the word "facilities".
On pages three through eight, by striking out all of sections three and four.
On page eight, section nine-a, line eight, after the word "county" by inserting the words "and
regional solid waste authority".
On page eight, section nine-a, lines nine and ten, by striking out the words "and regional solid
waste authority that operates a commercial solid waste facility".
And,
On page two, 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
section, designated §22C-3-26; and that said code be further amended by adding thereto a new
section, designated §22C-4-9a, all to read as follows" and a colon.
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. 593), and there were--yeas
91, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Doyle, Ennis, Ferrell, Fragale, Hunt and Ron
Thompson.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3356) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3361, Relating to the West Virginia Sunset Law.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section four, line fifteen, after the word "Board" and the semicolon, by
inserting the words "Public Land Corporation" and the semicolon.
On page three, section four, line thirty, after the word "Compensation" by changing the
semicolon to a period and striking out the words "and Public Land Corporation" and the period.
On page seven, section five, line fifty-four, after the word "Board" and the semicolon by
inserting the words "West Virginia Prosecuting Attorneys Institute" and a semicolon.
On page seven, section five, lines sixty-two and sixty-three, by striking out the words "West
Virginia Prosecuting Attorneys Institute" and the semicolon.
On page ten, section five-b, lines nineteen and twenty, by striking out the words "Board of
Examiners of Psychologists" and the semicolon.
On page eleven, section five-b, after line thirty-eight, by inserting a new subsection,
designated subsection (6), to read as follows:
"(6) On the first day of July, two thousand twelve: Board of Examiners of Psychologists."
And,
By renumbering the remaining subdivisions.
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. 594), and there were--yeas
94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3361) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 595), and there were--yeas 94, nays
none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Doyle, Ennis, Ferrell, Fragale, Hunt and Ron Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3361) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
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. 62, Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge",
H. C. R. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the
southern entrance to Wellsburg in Brooke County, the "John G. Chernenko Bridge",
H. C. R. 90, Requesting the Joint Committee on Government and Finance to conduct a study
on oral health in West Virginia,
H. C. R. 93, Providing for the issuance of not to exceed three hundred seventy-five million
dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996",
H. C. R. 98, Requesting the Joint Committee on Government and Finance study the
development of a coordinated deployment and operation of broadband Internet access throughout
the state,
H. C. R. 100, Expressing support of the College Summit program and requesting the Joint
Committee on Government and Finance to make a study on finding funding to help College Summit
in its goal to assist West Virginia's students in furthering their education,
And reports the same back with the recommendation that they each be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and
future highway financing,
And reports the same back, with amendment, with the recommendation that it be adopted,
as amended.
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. 159, Creating Consolidated Local Government Act,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the 2004 West Virginia Youth Services Annual Report and
Comprehensive Plan Update for the West Virginia Department of Health and Human Resource, in
accordance with section seven, article five-b, chapter forty-nine of the Code; which was filed in the
Clerk's Office.
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor,
advising that on April 6, 2005, he approved H. B. 2129, Com. Sub. for H. B. 2764, S. B. 153 and
S. B. 229.
Mr. Speaker, Mr. Kiss, laid before the House communications from His Excellency, the
Governor, which were read by the Clerk as follows:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston 25305
April 8, 2005
EXECUTIVE MESSAGE NO. 2
2005 REGULAR SESSION
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
In accordance with the provisions of Section 11, Article 7 of the Constitution of the State of
West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I hereby report that
I granted no pardons or reprieves, nor commuted punishment to any person, and remitted no fines
or penalties during the period of January 17, 2005 through April 8, 2005.
Very truly yours,
Joe Manchin III
Governor.
April 8, 2005
EXECUTIVE MESSAGE NO. 3
2005 REGULAR SESSION
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that for
the period January 17, 2005 through April 8, 2005, the following 2003-2004 annual reports have
been received in the Office of the Governor:
1.Adjutant General, West Virginia
2.Coal Heritage Highway Authority and National Coal Heritage Area Authority
3.Community and Technical College, West Virginia State
4.Consolidated Public Retirement Board, West Virginia
5.Economic Development Authority, West Virginia
6.Employee Suggestion Award Board, West Virginia Legislature
7.Equal Employment Opportunity Office, West Virginia
8.Interstate Pest Control Compact
9.Labor, West Virginia Division of
10. Library Commission, West Virginia
11.Literacy, Governor's Council on
12.Medicine, West Virginia Board of, Volumes I and II
13.National and Community Service, West Virginia Commission for
14.Oil and Gas Inspectors' Examining Board, West Virginia
15.Optometry, West Virginia Board of
16.Parole Board, West Virginia
17.Personnel, West Virginia Division of
18.Professional Surveyors, West Virginia Board of
19.Real Estate Appraiser Licensing and Certification Board, West Virginia
20.Real Estate Commission, West Virginia
21.Rehabilitation Services, West Virginia Division of
22.Social Work Examiners, West Virginia Board of
23.State Police, West Virginia
24.Support Enforcement Commission, West Virginia
25.Veterinary Medicine, West Virginia Board of
26.Water Development Authority, West Virginia
Very truly yours,
Joe Manchin III
Governor.
Conference Committee Report Availability
At 9:25 a.m., the Clerk announced the availability in his office, of the report of the
Committee of Conference on Com. Sub. for H. B. 2492, Providing a funding mechanism for teen
court programs.
Resolutions Introduced
Delegates Proudfoot and Hartman offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. R. 42 -- "Urging the Federal Aviation Administration to maintain the Elkins Automated
Flight Service Station as a federal traffic facility properly staffed by government employees."
Whereas, The Elkins Automated Flight Service Station provides pilots with weather and
aeronautical data to help them make critical and often life saving decisions; and
Whereas, Whether assisting West Virginia University student pilots, coordinating air
ambulance flights to rural communities, relaying data to commercial operators flying passengers and supplies or assisting the military in matters of national security - the Elkins Automated Flight
Service Station provides an invaluable service; and
Whereas, The Elkins Automated Flight Service Station is responsible for the continuous
monitoring of and daily support of the missions of the Charleston Air Force Base, Martinsburg Air
Force Base, Parkersburg Air National Guard, Wheeling Air National Guard, Camp Dawson and
Clarksburg National Guard flight operations; and
Whereas, Maintaining the Elkins Automated Flight Service Station with proper staffing
levels and equipment is a fundamental necessity in the continuation of these crucial services; and
Whereas, The Federal Aviation Administration (FAA) is primarily responsible for the safety
and security of aviation; therefore, be it
Resolved by the West Virginia House of Delegates:
That the Federal Aviation Administration is urged to maintain the Elkins Automated Flight
Service Station as a federal air traffic facility properly staffed by government employees; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to
the Clerk of the United States House of Representatives, the Clerk of the United States Senate and
the Administrator of the Federal Aviation Administration.
Consent Calendar
Third Reading
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund; on
third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §11A-3-20 and §11A-3-23 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-20. Refund to purchaser of payment made at sheriff's sale where property is subject
of an erroneous assessment or is otherwise nonexistent.
If, after by the thirty-first day of December one year after the payment of the amount bid at
a sheriff's sale, the purchaser discovers that the lien purchased at such that sale is the subject of an
erroneous assessment or is otherwise nonexistent, such the purchaser shall submit the abstract or
certificate of an attorney at law that the property is the subject of an erroneous assessment or is
otherwise nonexistent. Upon receipt thereof, of the abstract or certificate, the sheriff shall cause the
moneys so paid to be refunded. Upon refund, the sheriff shall inform the assessor of the erroneous
assessment for the purpose of having the assessor correct said the error. For failure to meet this
requirement, the purchaser shall lose all benefits of his or her purchase.
§11A-3-23. Redemption from purchase; receipt; list of redemptions; lien; lien of person
redeeming interest of another; record.
(a) After the sale of any tax lien on any real estate pursuant to section five of this article, the
owner of, or any other person who was entitled to pay the taxes on, any real estate for which a tax
lien thereon was purchased by an individual may redeem at any time before a tax deed is issued for
the real estate. In order to redeem, he or she shall pay to the clerk of the county commission the
following amounts: (1) An amount equal to the taxes, interest and charges due on the date of the
sale, with interest at the rate of one percent per month from the date of sale; (2) all other taxes which
have since been paid by the purchaser, his or her heirs or assigns, with interest at the rate of one
percent per month from the date of payment; (3) any additional expenses incurred from the first day
of January October of the year following the sheriff's sale to the date of redemption for the
preparation of the list of those to be served with notice to redeem and any title examination incident
thereto, with interest at the rate of one percent per month from the date of payment for reasonable
legal expenses incurred for the services of an attorney who has performed an examination of the title
to the real estate and rendered a written opinion and certification thereon: Provided, That the amount
he or she shall be required to pay, excluding the interest, for the expenses incurred for the preparation
of the list of those to be served with notice to redeem required by section nineteen of this article and
any title examination performed, shall not exceed two four hundred dollars; and (4) all additional statutory costs paid by the purchaser. Where the clerk has not received from the purchaser
satisfactory proof of the expenses incurred in preparing the notice to redeem, and any examination
of title incident thereto, in the form of receipts or other evidence of legal expenses incurred as
provided in section nineteen of this article, the person redeeming shall pay the clerk the sum of two
hundred dollars plus interest at the rate of one percent per month from the first day of January
October of the year following the sheriff's sale for disposition by the sheriff pursuant to the
provisions of sections ten, twenty-four, twenty-five and thirty-two of this article.
The person redeeming shall be given a receipt for the payment.
(b) Any person who, by reason of the fact that no provision is made for partial redemption
of the tax lien on real estate purchased by an individual, is compelled in order to protect himself or
herself to redeem the tax lien on all of the real estate when it belongs, in whole or in part, to some
other person, shall have a lien on the interest of that other person for the amount paid to redeem the
interest. He or she shall lose his or her right to the lien, however, unless within thirty days after
payment he or she files with the clerk of the county commission his or her claim in writing against
the owner of the interest, together with the receipt provided in this section. The clerk shall docket
the claim on the judgment lien docket in his or her office and properly index the claim. The lien may
be enforced as other judgment liens are enforced."
Delegate Staton, by unanimous consent, asked that the bill be removed from the Consent
Calendar to the House Calendar.
Com. Sub. for S. B. 198, Relating to fire safety standards for bed and breakfast
establishments; on third reading, coming up in regular order, was read a third time.
Com. Sub. for S. B. 433, Increasing membership of Environmental Protection Advisory on
third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.
(a) There is created within the Department of commerce, labor and environmental resources
Environmental Protection the Environmental Protection Advisory Council. The Environmental
Protection Advisory Council consists of seven eleven members. The director Secretary serves as an
ex officio member of the Council and as its Chair. The remaining six ten members are appointed
by the Governor. Each member serves for a term of four years and may be reappointed. Members
of the Council serving on the effective date of this section shall continue to serve until their terms
expire or their successors have been appointed. Of the members of the council first appointed, two
shall be appointed for terms ending on the thirtieth day of June, one thousand nine hundred
ninety-six, and two each for terms ending one and two years thereafter. Of the four new members
of the Council, two shall be appointed for a term ending on the thirtieth day of June, two thousand
eight, and two shall be appointed for the term ending the thirtieth day of June, two thousand ten.
Vacancies on the Council shall be filled within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the division or their
trade associations. Two members shall represent organizations advocating environmental protection.
One member shall represent organizations representing local governments. One member shall
represent public service districts.
Any future appointments to the Council shall be representative of the following entities.
They are:
(1) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the largest organization representing manufacturing in this state and one member
of the Council shall be appointed from a list of three names submitted to the Governor by the largest
organization representing the interests of coal producers in this state;
(2) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the largest organization representing farming interests in this state and one member
of the Council shall be appointed from a list of three names of registered foresters submitted to the
Governor by the largest organization representing the interests of private owners of forest land in this
state;
(3) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the two largest organizations representing environmental protection organizations;
(4) One member of the Council shall be appointed from a list of three names submitted
jointly to the Governor by the largest organizations representing counties and municipalities in this
state;
(5) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the largest organization representing public service districts in this state;
(6) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the largest organization representing oil and gas producers in this state;
(7) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the largest organization representing coal miners in this state; and
(8) One member of the Council shall be appointed from a list of three names submitted to
the Governor by the West Virginia Wildlife Federation. In making subsequent appointments this
balance of membership shall be maintained.
(c)
Except for state employee and officer members, appointed members shall be paid the
same compensation and expense reimbursement as is paid to members of the Legislature for their
interim duties as recommended by the citizens legislative compensation commission and authorized
by law for each day or portion thereof engaged in the discharge of official duties.
(d) The Council shall meet at least once every quarter and at the call of the Chair or at the
request of any four members of the Council in writing signed by the members requesting the
meeting, the Chair shall schedule a meeting. At least fifteen days prior to a regularly scheduled
meeting, or ten days in advance of a meeting called by the Chair, the Secretary shall provide the
members of the Council with an agenda of all matters scheduled for discussion at the meeting and
copies of any rules the Secretary intends to propose.
(e) The council shall:
(1) Consult with and advise the Secretary on program and policy development, problem
solving and other appropriate subjects;
(2) Identify and define problems associated with the implementation of the policy set forth
in section one of this article;
(3) Provide and disseminate to industry and the public early identification of major federal
program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between constituency groups;
(5) To the extent possible, strive for consensus on the development of overall environmental
policy; and
(6) The council may, upon a majority vote of the members, offer suggestions to the secretary
for proposed new or amended legislative rules;
(67) Provide an annual report to the joint committee on government and finance on or before
the first day of January of each year relating to its findings with regard to the division's Department's
performance during the previous year. The report will specifically address the division's
performance in accomplishing the nine ten purposes set forth in subsection (b), section one of this
article.;and
(8) Appoint technical advisory committees as may be necessary to carry out the provisions
of this section.
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 450, Prohibiting compensation of board members from receiving
compensation for certain travel days,
S. B. 463, Allowing supplemental assessment on personal property when omitted from record
books,
Com. Sub. for S. B. 473, Relating to crime of cyber-shoplifting (Regular) (Amores)
S. B. 585, Allowing disclosure of juvenile records in certain cases,
S. B. 703, Providing consistency in filing procedures for all organization types and cleaning
up outdated language,
S. B. 735, Relating to cancellation of motor vehicle agreement,
And,
S. B. 737, Establishing time limit for licensing board to issue final ruling.
Delegate Hrutkay requested to be excused from voting on the passage of Com. Sub. for S.
B. 198 under the provisions of House Rule 49.
The Speaker stated that she demonstrated a possible pecuniary interest but was a member of
a class of persons possibly to be affected by the passage of the bill and in an abundance of caution,
excused the Lady from voting.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bills, the yeas and nays were taken (Roll No. 596), and there were--yeas
94, nays none, absent and not voting 4, excused from voting 1, with the absent and not voting and
excused being as follows:
Absent And Not Voting: Armstead, Doyle, Ferrell, Fragale and Ron Thompson.
Excused from Voting: Hrutkay.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (Com. Sub. For S. B. 198, Com. Sub. for S. B. 433, Com. Sub. for S. B. 450, S.
B. 463, Com. Sub. for S. B. 473, S. B. 585, S. B. 703, S. B. 705, S. B. 735 and S. B. 737) passed.
An amendment to the title of Com. Sub. for S. B. 433, recommended by the Committee on
the Judiciary, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 433 - "A Bill to amend and reenact §22-1-9 of the Code of West
Virginia, 1931, as amended, relating to the Environmental Protection Advisory Council generally;
increasing the membership of the Council to eleven members; specifying the Governor's power of
appointment from named organizations and entities; making certain procedural changes in Council
activities; allowing Council members to offer rule-making suggestions to the Secretary upon
majority vote of the members; and authorizing appointment of technical advisory committees which
will serve without compensation."
Delegate Staton moved that Com. Sub. for S. B. 433 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 607), and there were--yeas 94, nays
none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Armstead, Doyle, Ferrell, Fragale, Longstreth and Ron
Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 433) takes effect July 1, 2005.
Delegate Staton moved that Com. Sub. for S. B. 450 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 608), 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: Armstead, Doyle, Ferrell, Fragale and Ron Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 450) takes effect July 1, 2005.
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.
Delegate Hrutkay announced that had she been allowed to vote on Roll No. 596 she would
have voted "yea" thereon.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished
Business.
Special Calendar
Unfinished Business
H. C. R. 88, Requesting the West Virginia Division of Highways to name State Route 25
from Glen Jean to Thurmond in Fayette County the "Jon Dragan Road"; coming up in regular order,
as unfinished business, was reported by the Clerk.
The question now being on the adoption of the resolution, Delegate H. White demanded the
yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 609), and there were--yeas
91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Amores, Blair, Doyle, Ennis, Ferrell, Fragale, Hall, Martin and
Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the resolution (H. C. R. 88) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
The following resolutions, coming up in regular order, as unfinished business, were reported
by the Clerk and adopted:
H. C. R. 63, Requesting the Joint Committee on Government and Finance study the West
Virginia Board of Dental Examiners whether the Board is sufficiently carrying out its purpose,
H. C. R. 102, Requesting the Joint Committee on Government and Finance to conduct a
study on the stocking of bass in the Ohio River,
And,
H. C. R. 103, Requesting the Joint Committee on Government and Finance to conduct a
study of court appointed counsel and Public Defender Services within West Virginia.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
Com. Sub. for S. B. 147, Limiting purchase of substances used in production of
methamphetamine; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 610),
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, Ennis, Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 147) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 147 -- "A Bill to amend and reenact §60A-1-101 of the Code of West
Virginia, 1931, as amended; to amend and reenact §60A-2-212 of said code; to amend and reenact
§60A-3-308 of said code; to amend and reenact §60A-9-4 and §60A-9-5 of said code; and to amend
said code by adding thereto a new article designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4,
§60A-10-5, §60A-10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10, §60A-10-11, §60A-10-12,
§60A-10-13 and §60A-10-14, all relating to limiting the purchase of substances used in the
production of methamphetamine; providing that certain substances containing ephedrine,
pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers
are Schedule V substances; providing legislative findings; defining terms; limiting access to such
substances; providing procedures for purchasing such substances from pharmacists or licensed
pharmacy technicians; providing for the registration of every wholesaler, manufacturer or distributor
of certain drug products containing such substances; providing for a supplemental list of drug
products used in methamphetamine production; adding ephedrine, pseudoephedrine and
phenylopropanolamine to controlled substances subject to controlled substances monitoring;
requiring medical and dental professionals to report methamphetamine-related injuries; criminalizing
exposure of children to methamphetamine production; creating offense of improper storage of
anhydrous ammonia; allowing the State Police to leverage grant funds; requiring reporting by the
State Police to the Legislative Oversight Commission on Health and Human Resources; and
providing penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 194, Relating to Affordable Housing Trust Fund; on third reading,
coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and
adopted, amending the bill on page two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 18D. WEST VIRGINIA AFFORDABLE HOUSING TRUST FUND.
§31-18D-5. Housing Trust Fund Board of Directors.
(a) The Affordable Housing Trust Fund has a Board of Directors, which consists of eleven
voting members. The members of the Board are responsible for administering the Trust Fund.
(b) The Trust Fund Board of Directors consists of:
(1) The Secretary of the Department of Health and Human Resources, ex officio, or his or
her designee;
(2) The Executive Director of the West Virginia Development Office, ex officio, or his or
her designee;
(3) The Executive Director of the West Virginia Housing Development Fund, ex officio, or
his or her designee;
(4) One member who is chosen from the private directors appointed by the governor to the
Board of the West Virginia housing development fund representative of the manufactured housing
sales industry, with special consideration of three nominees submitted by the West Virginia
Manufactured Housing Association;
(5) One member who is an officer of a corporation or member of a limited liability company,
which is currently licensed to do business in West Virginia and is engaged in real estate development
representative of the real estate development or real estate sales industry, with special consideration
of three nominees submitted by the West Virginia Association of Realtors;
(6) Three members who are executive directors or officers of not-for-profit organizations,
which are not affiliated with one another through common management control and which are One
member who is an executive director or an officer of a local, community-based not-for-profit organization currently licensed to do business in West Virginia and which have been recognized as
is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as
amended, codified in 26 U. S. C. §501 (c)(3), and are organized and operated exclusively for
charitable purposes within the meaning of that section, and in accordance with those purposes,
provide housing assistance to low or moderate income citizens of this state;
(7) One member representative of the banking industry;
(8) One citizen member who is representative of the population served by the trust fund; and
one One member who is an officer or member of a municipality or county commission, or his or her
designee;
(9) One member who is an executive director of a public housing authority operating in a
county or municipality in this state;
(10) One member who is an executive director or officer of a statewide not-for-profit
organization which has as one of its primary missions the provision of housing assistance to low and
moderate income citizens of this state, currently licensed to do business in West Virginia and is
exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended,
codified in 26 U. S. C. §501 (c)(3), and is organized and operated exclusively for charitable purposes
within the meaning of that section; and
(11) One member representative of the homebuilding industry, with special consideration
of three nominees submitted by the Homebuilders Association of West Virginia.
(c) Not more than three members, excluding the ex officio members, shall be appointed from
any one congressional district. Not more than four of the members, excluding the ex officio
members, may belong to the same political party. Except for initial appointments and midterm
special appointments made to fill irregular vacancies on the Board, members shall be appointed for
terms of three years each. Initial appointments shall consist of three members whose terms expire
after two years, three members whose terms expire after three years and two members whose terms
expire after four years. Members are eligible for reappointment. However, no member may serve
for more than two consecutive full terms. Except for midterm special appointments made to fill
irregular vacancies on the Board, appointment terms shall begin on the first day of July of the beginning year. All appointment terms, special and regular, end on the thirtieth day of June of the
final year of the term.
(d) All members of the Board except those who serve ex officio shall be appointed by the
Governor, with the advice and consent of the Senate.
(e) The Governor may remove any appointed member in case of incompetency, neglect of
duty, moral turpitude or malfeasance in office, and the Governor may declare the office vacant and
fill the vacancy as provided in other cases of vacancy.
(f) The Governor shall designate one of the initial members as chairperson of the Board.
During or after the first meeting of the Board the Board may select a new chairperson and shall
annually select its chairperson.
(g) The Board shall meet not less than four times during the fiscal year, and additional
meetings may be held upon a call of the chairperson or of a majority of the members. Board
members shall be reimbursed for sums necessary to carry out responsibilities of the Board and for
reasonable travel expenses to attend Board meetings. The ex officio members may not be
reimbursed by the Fund for travel expenses to attend Board meetings.
(h) Six members of the Board is a quorum. No vacancy in the membership of the Board
impairs the right of a quorum to exercise all the rights and perform all the duties of the Board. No
action may be taken by the Board except upon the affirmative vote of at least six of the members.
Action may be taken by the affirmative vote of a majority of members present at a properly noticed
and legally convened meeting of the Board.
§31-18D-6. Powers and responsibilities of the Board.
(a) It is the duty of the The Board to shall manage and control the Affordable Housing Trust
Fund. In order to carry out the day-to-day management and control of the Trust Fund and effectuate
the purposes of this article, the Board may appoint an Executive Director and other staff. The Board
shall fix the Executive Director's duties and compensation as well as that of other staff. The
Executive Director and other staff serve at the will and pleasure of the Board. The Board may
provide for staff payroll and employee benefits in the same manner as the West Virginia Housing
Development Fund provides for its employees.
(b) The members of the Board and its officers are not liable personally, either jointly or
severally, for any debt or obligation created by the Board.
(c) Members of the Board and its officers and employees shall be provided insurance
coverage by the state's Risk and Insurance Management Board to the same extent and in the same
manner the coverage is applicable to state government agencies and appointed state officials and
employees. The Board may elect to obtain other forms of insurance coverage it considers reasonable
for its operations.
(d) The acts of the Board are solely acts of its corporation and are not those of an agent of
the state, nor is any debt or obligation of the Board a debt or obligation of the state.
(e) The Board shall:
(1) Develop and implement comprehensive policies and programs for the use of the Trust
Fund that ensures the equitable distribution of moneys from the Trust Fund throughout the various
geographic areas of this state and between urban and rural areas of this state;
(2) Develop and implement an application and selection system to identify housing sponsors
or providers of affordable housing developments or programs that qualify to receive assistance from
the Trust Fund for eligible activities;
(3) Provide funds for technical assistance to prospective applicants;
(4) Monitor services, developments, projects or programs receiving assistance from the Trust
Fund to ensure that the developments are operated in a manner consistent with this article and in
accordance with the representations made to the Trust Fund Board by the sponsors of the services,
developments, projects or programs;
(5) Recommend legislation to further its mission of providing housing for low to moderate
income citizens of this state;
(6) Provide funding to increase the capacity of nonprofit community housing organizations
to serve their communities;
(7) Research and study housing needs and potential solutions to the substandard quality or
lack of affordable housing;
(8) Coordinate programs with other entities when doing so fulfills its mission to provide
housing to low to moderate income citizens of this state;
(9) Convene public meetings to gather information or receive public comments regarding
housing policy or issues;
(10) Distribute available funds pursuant to policies established by it which may permit the
establishment of a permanent endowment; and
(11) Serve as a clearinghouse for information regarding housing services and providers
within this state.
(f) The West Virginia Housing Development Fund shall provide office space and staff
support services for the Executive Director and the Board, shall act as fiscal agent for the Board and,
as such, shall provide accounting services for the Board, invest all funds as directed by the Board,
service all investment and loan activities of the Board as requested, and shall make the
disbursements of all funds as directed by the Board, and establish best practices for recipient
organizations, for which the West Virginia Housing Development Fund shall be reasonably
compensated, as determined by the Board.
§31-18D-7. Eligible activities; eligible organizations.
(a) The Board shall use the moneys from the Trust Fund to make, or participate in the making
of, loans or grants for eligible activities that shall include, but not be limited to:
(1) Providing funds for new construction, rehabilitation, repair or acquisition of housing to
assist low or moderate income citizens including land and land improvements;
(2) Providing matching funds for federal housing moneys requiring a local or state match;
(3) Providing funds for administrative costs for housing assistance programs or nonprofit
organizations eligible for funding pursuant to subsection (b) of this section if the grants or loans
provided will substantially increase the recipient's access to housing funds or increase its capacity
to supply affordable housing;
(4) Providing loan guarantees and other financial mechanisms to facilitate the provision of
housing products or services;
(5) Providing funds for down payments, closing costs, foreclosure prevention, home
ownership counseling and security bonds which facilitate the construction, rehabilitation, repair or
acquisition of housing by low to moderate income citizens; and
(6) Providing risk underwriting products not provided by private sector entities to facilitate
broader accessibility of citizens to other federal or state housing funds or loan programs. The
products shall be established using professional risk underwriting standards and separate corporate
vehicles may be created and capitalized by the Trust Fund to provide the products; and
(7) Providing start-up funds for initial operational expenses of local government programs
to reduce substandard housing or inappropriate land use patterns.
(b) Organizations eligible for funding from the Trust Fund include the following: (1) Local
governments; (2) local government housing authorities; (3) nonprofit organizations recognized as
exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended,
codified in 26 U. S. C. §501 (c)(3), and which are organized and operated exclusively for charitable
purposes within the meaning of that section, and in accordance with those purposes provide
assistance to low or moderate income citizens of this state; and (4) regional or statewide housing
assistance organizations that have been recognized as exempt under Section 501(c)(3) of the Internal
Revenue Code, as amended, and which provide assistance to low and moderate income or low
income citizens of this state.
§31-18D-9. Applications and selection criteria.
(a) The Board shall announce by public notice at least two periods annually for prospective
applicants to submit proposals, applications or requests for funding. Each period shall be for at least
ninety days duration during each calendar year in which funds are available from the trust fund. The
Board shall approve or deny properly submitted and completed applications, proposals or requests
within sixty days of their receipt.
(b) The Board shall determine whether each person making an application, proposal or
request for funding is an eligible entity and approve as many applications, proposals or requests as
will effectively use the available moneys in the trust fund less costs required to administer the
program. In selecting entities to receive trust fund assistance, the Board shall develop a qualified allocation and selection plan as often as it considers appropriate in order to provide affordable
housing and improve the capacity of nonprofit housing entities to supply affordable housing to low
and moderate income citizens of this state. The allocation and selection plan for each period shall
be available for review of prospective applicants and the general public in sufficient time for
prospective applicants to reasonably prepare an application, project proposal or request for funding.
(c) (a) No moneys may be expended from the Trust Fund for projects that discriminate
against any buyer or renter because of race, religion, sex, familial status or national origin.
(d) (b) The Board shall forward to the West Virginia Housing Development Fund for its
review and information approved requests, applications and proposals for funding containing
information as is necessary to permit the West Virginia Housing Development Fund to carry out its
duties under this article."
There being no further amendments, bill was then read a third time and put upon its passage
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 611),
and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Schoen.
Absent And Not Voting: Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 194) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 194 -- "A Bill to amend and reenact §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9
of the Code of West Virginia, 1931, as amended, relating to the West Virginia Affordable Housing
Trust Fund generally; changing the composition of the Board of Directors of the West Virginia
Affordable Housing Trust Fund by reducing the number of members appointed representing
nonprofit organizations; adding additional members representing real estate, manufactured housing
and homebuilding entities; reducing the number of votes necessary for Board action; providing that the West Virginia Housing Development Fund shall establish best practices for recipients of trust
fund moneys; permitting trust fund moneys to be used for initial operational expenses of local
governmental programs to reduce substandard housing or inappropriate land use patterns; and
eliminating certain restrictions on application procedures for trust fund moneys."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 254, Relating to reinsurance intermediaries; on third reading, coming up in regular
order, with an amendment pending and the further right to amend, was reported by the Clerk.
On motion of Delegate Amores the bill was amended on page eleven, section thee-a, line
forty-one, after the word "worthy" by inserting a comma and the following words "as that term may
be defined by the Commissioner in legislative rules promulgated pursuant to section twelve of this
article" and a comma.
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 612),
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: Crosier, Ferrell, Fragale and Ron Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 254) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 348, Clarifying when audits are required of state funds or grants;
penalty; on third reading, coming up in regular order, with an amendment pending and with the
further right to amend, was reported by the Clerk.
On recommendation of the Committee on Finance, the bill was amended on page one,
following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof
the following:
"ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
§12-4-14. Reviews of persons receiving state funds or grants; sworn statements by volunteer
fire departments; criminal penalties.
(a) For the purposes of this section:
(1) 'Grantor' means a state spending unit awarding a state grant.
(2) 'Person' includes any corporation, partnership, association, individual or other legal
entity. The term 'person' does not include a state spending unit or a local government as defined in
section one-a, article nine, chapter six of this code.
(3) 'Review' means an attestation engagement, conducted and prepared by a certified public
accountant to test whether state grants were spent as intended. The term 'review' does not mean
a full-scope audit or review of the person receiving state funds.
(4)'State grant' means funding provided by a state spending unit to a person upon application
for a specific purpose. The term 'state grant' does not include: (A) payments for goods and services
purchased by a state spending unit; (B) compensation to state employees and public officials; (C)
reimbursements to state employees and public officials for travel or incidental expenses; (D) grants
of student aid; (E) government transfer payments; (F) direct benefits provided under state insurance
and welfare programs; and (G) retirement benefits. The term 'state grant' does include formula
distributions to volunteer and part-volunteer fire departments made pursuant to sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve
of said chapter.
(b)(1) Any corporation, association, or other organization in West Virginia that is not a local
government as defined in section one-a, article nine, chapter six of this code and which person who
receives state funds or grants one or more state grants in the amount of fifteen thousand dollars or
more in the aggregate in a calendar year shall file an audit with the grantor a review of the
disbursement of state grant funds with the Legislative auditor's office.
(2) The audit review required by subdivision (1) of this subsection shall be filed within two
years of the end of the calendar year in which the disbursement of funds or grants state grant funds by the grantor and was made. The review shall be made by an independent certified public
accountant at the cost of the grantee and show person receiving the state grant. The scope of the
review is limited to showing that the state grant funds or grants were spent for the purposes intended
when the grant was made.
(c)(1) Any person failing to file a required review within the two-year period provided in
subdivision (2), subsection (b) of this section for any state grant funds disbursed after the first day
of July, two thousand three, is barred from subsequently receiving state grants until the person has
filed the review and is otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons failing to file a required review
within the required time period provided in subdivision (2), subsection (b) of this section for any
state grant disbursed after the first day of July, two thousand three, to the Legislative Auditor for
purposes of debarment from receiving state grants.
(d)(1) The state agency administering the funds or grants state grant shall notify the grantee
of the reporting requirements set forth in this section. A grantee failing to file a required audit within
the two-year time period is barred from subsequently receiving state funds or grants until the grantee
has filed the audit and is otherwise in compliance with the provisions of this section.
(2) Any state agency administering a state grant shall, in the manner designated by the
Legislative Auditor, notify the Legislative Auditor of the amount of funds to be disbursed, the
identity of the person authorized to receive the funds and the purpose and nature of the state grant
within thirty days of making the state grant or authorizing the disbursement of the funds: Provided,
That if the state grant was awarded prior to the effective date of the amendment and reenactment of
this section in the year two thousand five, the grantor shall provide the information required by this
section within ninety days of said effective date.
(3) All grantors making state grants that would be subject to the review requirements of this
section shall, prior to awarding a state grant, take reasonable actions to verify that the person is not
barred from receiving state grants pursuant to this section. The verification process shall, at a
minimum, include:
(A) A requirement that the person seeking the state grant provide a sworn statement from an
authorized representative that the person has filed all reviews for state grants received as required
under this section; and
(B) Confirmation from the Legislative Auditor by the grantor that the person has not been
identified as one who has failed to file a review under this section: Provided, That such confirmation
may be accomplished by accessing the computerized database provided pursuant to subdivision (4)
of this subsection.
(4) The Legislative Auditor shall maintain a list identifying persons who have failed to file
reviews required by this section. The list may be in the form of a computerized database that may
be accessed by state agencies over the Internet.
(e) If any review performed pursuant to the requirements of this section provides evidence
of a reportable condition or violation, the grantor shall provide a copy of the review to the
Legislative Auditor within thirty days of receipt by the grantor.
(f) The grantor shall maintain copies of reviews required by this section and make the reviews
available for public inspection, as well as for use in audits and performance reviews of the grantor.
(b)Audits (g) Reviews of state funds or grants under fifteen thousand dollars not required
under the provisions of this section may be authorized by the Joint Committee on Government and
Finance to be conducted by the Legislative auditor's office Auditor at no cost to the grantee.:
Provided, That
(h)(1) Volunteer and part-volunteer fire departments may satisfy the audit review
requirements of this section by submitting a sworn statement of annual expenditures to the
Legislative auditor's office Auditor, along with a filing fee of seventy-five dollars, on or before the
fourteenth day of February of each year, if the volunteer fire department elects not to be audited. The
sworn statement of expenditures shall be signed by the chief or director of the volunteer fire
department and shall be made under oath and acknowledged before a notary public. An additional
filing fee of twenty-five dollars shall be included with the sworn statement of annual expenditures
if the statement is submitted between the fifteenth day of February and the fifteenth day of March.
An additional filing fee of fifty dollars shall be included with the sworn statement of annual expenditures if the statement is submitted between the sixteenth day of March and the fifteenth day
of April.
(2) If the sworn statement is not submitted on or before the fifteenth day of April May, unless
the time period is extended by the Legislative Auditor, the volunteer fire department shall file an
audit of the disbursement of funds, made by an independent certified public accountant, with the
Legislative auditor's office no later than the first day of July. The audit shall be made at the cost of
the volunteer fire department. Legislative Auditor may conduct a review of the volunteer or part-
volunteer fire department.
(3) If the audit made by the independent certified public accountant sworn statement of
annual expenditures is not filed with the Legislative Auditor by the first day of July, unless the time
period is extended by the Legislative Auditor, the Legislative Auditor shall notify the State Treasurer
who shall withhold payment of one thousand dollars from any amount that would otherwise be
distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article
three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter and pay
the amount withheld to the fund from which it was distributed to be redistributed the following year
pursuant to the applicable provisions of those sections until the review is complete. Moneys
withheld pursuant to this subdivision are to be deposited in the special revenue account created in
subdivision (4) of this subsection and the Treasurer.
If the volunteer fire department does not timely file a sworn statement of annual expenditures
or an audit of the disbursement of funds, made by an independent certified public accountant, with
the Legislative auditor's office for three consecutive years, the Legislative Auditor shall notify the
State Treasurer who shall withhold payment of any amount that would otherwise be distributed to
the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter
thirty-three of this code and section sixteen-a, article twelve of said chapter and pay the amount
withheld to the fund from which it was distributed to be redistributed the following year pursuant
to the applicable provisions of those sections.
(c)(4) The office of the Legislative Auditor may assign an employee or employees to perform
audits reviews at the direction of the Legislative Auditor of the disbursement of state grant funds or grants to volunteer fire departments. The volunteer fire department shall cooperate with the
Legislative Auditor, the Legislative Auditor's employees and the State Auditor in performing their
duties under this section. If the Legislative Auditor determines a volunteer fire department is not
cooperating, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of
any amount that would otherwise be distributed to the fire department under the provisions of
sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter until the Legislative Auditor informs the Treasurer that the
fire department has cooperated as required by this section. The State Treasurer shall pay the amount
withheld into a special revenue account hereby created in the State Treasury and designated the
'Volunteer Fire Department Audit Account'. If, after one year from payment of the amount withheld
into the special revenue account, the Legislative Auditor informs the State Treasurer of continued
noncooperation by the fire department, the State Treasurer shall pay the amount withheld to the fund
from which it was distributed to be redistributed the following year pursuant to the applicable
provisions of those sections.
(d) Filing fees paid by volunteer fire departments pursuant to this section shall be paid into
a special revenue account created in the State Treasury known as the Special Legislative Audit Fund.
Expenditures from the fund are authorized to be made by the Legislative auditor's office solely for
the purposes of payment of costs associated with the audits conducted pursuant to this section. Any
person who files a fraudulent sworn statement of expenditures under this section is guilty of a felony
and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five
thousand dollars or imprisoned in a state correctional facility for not less than one year nor more than
five years, or both fined and imprisoned.
(e) (5) Whenever the State Auditor performs an audit of a volunteer fire department for any
purpose the Auditor shall also conduct an audit of other state funds received by the fire department
pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and
section sixteen-a, article twelve of said chapter. The Auditor shall send a copy of any such audit to
the Legislative Auditor. The Legislative Auditor may accept an audit performed by the Auditor in
lieu of performing an audit a review under this section.
(f) (i) Any audit review submitted pursuant to the provisions of this section may be filed
electronically in accordance with the provisions of article one, chapter thirty-nine-a of this code.
(j) Any person who files a fraudulent sworn statement of expenditures under subsection (g),
a fraudulent sworn statement under subsection (d), or a fraudulent review under this section is guilty
of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more
than five thousand dollars or imprisoned in a state correctional facility for not less than one year nor
more than five years, or both fined and imprisoned."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 613),
and there were--yeas 89, nays 9, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Border, Duke, Ellem, Frich, Hamilton, Louisos, Schoen, Sobonya and Stevens.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 348) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 348 - "A Bill to amend and reenact §12-4-14 of the Code of West
Virginia, 1931, as amended, relating to persons who receive state grants; providing definitions;
clarifying when reviews of state grants are required; providing consequences for not complying with
review requirements; providing the withholding of state grants or funds; providing for the debarment
from future state grants under certain circumstances; providing state agencies who administer grants
additional duties under certain circumstances; providing additional duties providing criminal
penalties."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 614), 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: Ferrell, Fragale, Houston and Marshall.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 348) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 419, Creating Local Government Flexibility Act; on third reading, coming up in regular
order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 615),
and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Armstead, Lane, Spencer and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 419) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 616), 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: Crosier, Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 419) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 421, Relating to apportionment of damages in court actions involving tortious conduct
in certain cases; on third reading, coming up in regular order, with an amendment pending and the
further right to amend, was reported by the Clerk.
On recommendation of the Committee on the Judiciary the bill was amended on page two,
following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof,
the following language:
"ARTICLE 7. ACTIONS FOR INJURIES.
|55-7-23. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of more than one defendant, the trial
court shall:
(1) Instruct the jury to determine, or, if there is no jury, find, the total amount of damages
sustained by the claimant and the proportionate fault of each of the parties in the litigation at the time
the verdict is rendered, enter judgment against each defendant found to be liable on the basis of the
rules of joint and several liability, and divide the damage allocation between actual, economic
damages and non-economic damages. All defendants shall be jointly and several liable for all
actual, economic damages.
(2) For non-economic damages, judgment against each defendant found to be liable on the
basis of the rules of joint and several liability, except that if any defendant is thirty-five percent or
less at fault, then that defendant's liability shall be several and not joint and he or she shall be liable
only for the non-economic damages attributable to him or her, except as otherwise provided in this
section.
(b) Notwithstanding subdivision (2), subsection (a) of this section, the rules of joint and
several liability all damages shall apply to:
(1) Any party who acted with the intention of inflicting injury or damage;
(2) Any party who acted in concert with another person as part of a common plan or design
resulting in harm;
(3) Any party who negligently or willfully caused the unlawful emission, disposal or spillage
of a toxic or hazardous substance;
(4) Any party strictly liable for the manufacture and sale of a defective product; or
(5) Ant party who negligently, unlawfully or recklessly sold or served alcohol.
(c) Notwithstanding subdivision (2), subsection (a) of this section, if a claimant through good
faith efforts is unable to collect from a liable defendant, the claimant may, not later than six months
after judgment becomes final through lapse of time for appeal or through exhaustion of appeal,
whichever occurs later, move for reallocation of any uncollectible amount of damages among the
other parties in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall determine whether all or part of a
defendant's proportionate share of the verdict for non-economic damages is uncollectible from that
defendant and shall reallocate such uncollectible amount among the other parties in the litigation at
the time the verdict is rendered, including a claimant at fault according to their percentages of fault:
Provided, That the court shall not reallocate to any defendant an uncollectible amount of
non-economic damages greater than that defendant's percentage of fault multiplied by such
uncollectible amount.
(2) If such a motion is filed, the parties may conduct discovery on the issue of collectability
prior to a hearing on such motion.
(3) Any order regarding such motion shall be entered within one hundred twenty days after
the date of filing such a motion.
(4) A defendant's share of the obligation for non-economic damages to a claimant may not
be increased by reason of reallocation under this subsection if:
(A) The percentage of fault of that defendant is equal to or less than the claimant's percentage
of fault; or
(B) The percentage of fault of that defendant is seven percent or less.
(5) A party whose liability is reallocated is nonetheless subject to contribution and to any
continuing liability to the claimant on the judgment.
(6) If any defendant's share of the obligation for non-economic damages to a claimant is not
increased by reason of the application of subdivision (4) of this subsection, the amount of that
defendant's share of the reallocation shall be considered uncollectible and shall be reallocated among
all other parties who are not subject to subdivision four of this subsection, including the claimant,
in the same manner as otherwise provided this subsection.
(d) Nothing in this section may be construed to affect, impair or abrogate any right of
indemnity or contribution arising out of any contract or agreement or any right of indemnity
otherwise provided by law.
(e) Nothing in this section creates or recognizes, either explicitly or impliedly, any new or
different cause of action not otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair or abrogate the provisions of
section seven, article twelve-a, chapter twenty-nine of this code or section nine, article seven-b of
this chapter.
(g) This section applies only to causes of action that accrue on or after the first day of July,
two thousand five."
Delegates Frich and Trump requested the Clerk to record them as voting "Nay" on the
adoption of the foregoing amendment.
The bill was then read a third time.
Delegate Schoen requested to be excused from voting on the passage of S. B. 421 under the
provisions of House Rule 49.
The Speaker then excused the Lady from voting.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 617),
and there were--yeas 97, nays none, absent and not voting 2, excused from voting 1, with the absent
and not voting and excused being as follows:
Absent And Not Voting: Ferrell and Fragale.
Excused from Voting: Schoen
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 421) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 421 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §55-7-23, relating to the apportionment of certain damages in court actions
involving the tortious conduct of more than one person; allowing for several liability for certain
defendants for non-economic damages; allowing for several liability subject to reallocation for
certain defendants; providing procedures for determining allocation; and providing for joint and
several liability for defendants that are found to be more than thirty-five percent at fault in certain
conditions."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 428, Relating to Rehabilitation Environmental Action Plan; on third reading, coming
up in regular order, with an amendment pending and the further right to amend, was reported by the
Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 514, Increasing salaries of certain state officials, justices, circuit judges
and family court judges; on third reading, coming up in regular order, with right to amend, was
reported by the Clerk.
On motion of Delegates Tabb, Wysong, Brown, Beane, Amores, Hunt, Walters, Rick
Thompson, Perdue, Browning, Williams, Paxton, Marshall, Houston, Longstreth, Eldridge, Butcher,
Hrutkay, Barker, Boggs, G. White, Staton and Ennis the bill was amended on page four, following
line forty-five, by inserting a new section to read as follows:
"CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.
(a) The Legislature finds and declares that:
(1) The West Virginia Supreme Court of Appeals has held that a salary system for
magistrates which is based upon the population that each magistrate serves does not violate the equal
protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for
magistrates which is based upon the population that each magistrate serves does not violate section
thirty-nine, article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational
manner by which magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less
than eight thousand four hundred in population and the second tier for magistrates serving eight
thousand four hundred or more in population is rational and equitable given current statistical
information relating to population and caseload; and
(5) That all magistrates who fall under the same tier should be compensated equally.
(b) The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than
eight thousand four hundred in population shall be paid annual salaries of thirty thousand six
hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in
population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after
the first day of July, two thousand three, magistrates who serve fewer than eight thousand four
hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty-five
dollars and magistrates who serve eight thousand four hundred or more in population shall be paid
annual salaries of forty thousand dollars: Provided, however, That on and after the first day of July,
two thousand five, magistrates who serve fewer than eight thousand four hundred in population shall
be paid annual salaries of forty-three thousand six hundred twenty-five dollars and magistrates who
serve eight thousand four hundred or more in population shall be paid annual salaries of fifty
thousand dollars.
(c) For the purpose of determining the population served by each magistrate, the number of
magistrates authorized for each county shall be divided into the population of each county. For the purpose of this article, the population of each county is the population as determined by the last
preceding decennial census taken under the authority of the United States government."
On page six, section six, line ten, following the words "annual salary of" by striking out the
words "seventy-five" and inserting in lieu thereof the words "eighty-two".
And,
On page two, by amending the enacting section to read as follows:
"That §6-7-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §50-1-3 of said code be amended and reenacted; that §51-1-10a of said code be amended and
reenacted; that §51-2-13 of said code be amended and reenacted; and that §51-2A-6 of said code be
amended and reenacted, all to read as follows" and a colon.
Delegate Cann moved to amend the bill by striking everything after the enacting clause and
inserting in lieu thereof the following:
"That §6-7-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §50-1-3 of said code be amended and reenacted; that §51-1-10a of said code be amended and
reenacted; that §51-2-13 of said code be amended and reenacted; and that §51-2A-6 of said code be
amended and reenacted, all to read as follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2. Salaries of certain state officers.
(a) The salaries for each of the state constitutional officers are as follows:
(1) The salary of the Governor is ninety thousand dollars per year;
(2) The salary of the Attorney General is seventy-five thousand dollars per year;
(3) The salary of the Auditor is seventy thousand dollars per year;
(4) The salary of the Secretary of State is sixty-five thousand dollars per year;
(5) The salary of the Commissioner of Agriculture is seventy thousand dollars per year; and
(6) The salary of the State Treasurer is seventy thousand dollars per year.
(b) (a) Beginning in the calendar year two thousand five, and for each calendar year
thereafter, salaries for each of the state constitutional officers shall be as follows:
(1) The salary of the Governor shall be ninety-five thousand dollars per year;
(2) The salary of the Attorney General shall be eighty thousand dollars per year;
(3) The salary of the Auditor shall be seventy-five thousand dollars per year;
(4) The salary of the Secretary of State shall be seventy thousand dollars per year;
(5) The salary of the Commissioner of Agriculture shall be seventy-five thousand dollars per
year; and
(6) The salary of the State Treasurer shall be seventy-five thousand dollars per year.
(b) Notwithstanding the provisions of subsection (a) of this section, beginning in the calendar
year two thousand nine, and for each calendar year thereafter, salaries for each of the state
constitutional officers shall be as follows:
(1) The salary of the Governor shall be one hundred fifty thousand dollars per year;
(2) The salary of the Attorney General shall be one hundred five thousand dollars per year;
(3) The salary of the Auditor shall be ninety-five thousand dollars per year;
(4) The salary of the Secretary of State shall be ninety-five thousand dollars per year;
(5) The salary of the Commissioner of Agriculture shall be ninety-five thousand dollars per
year; and
(6) The salary of the State Treasurer shall be ninety-five thousand dollars per year.
"CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.
(a) The Legislature finds and declares that:
(1) The West Virginia Supreme Court of Appeals has held that a salary system for
magistrates which is based upon the population that each magistrate serves does not violate the equal
protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for
magistrates which is based upon the population that each magistrate serves does not violate section
thirty-nine, article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational
manner by which magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less
than eight thousand four hundred in population and the second tier for magistrates serving eight
thousand four hundred or more in population is rational and equitable given current statistical
information relating to population and caseload; and
(5) That all magistrates who fall under the same tier should be compensated equally.
(b) The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than
eight thousand four hundred in population shall be paid annual salaries of thirty thousand six
hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in
population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after
the first day of July, two thousand three, magistrates who serve fewer than eight thousand four
hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty-five
dollars and magistrates who serve eight thousand four hundred or more in population shall be paid
annual salaries of forty thousand dollars: Provided, however, That beginning the first day of July,
two thousand five, the annual salary of all magistrates shall be forty-five thousand dollars.
(c) For the purpose of determining the population served by each magistrate, the number of
magistrates authorized for each county shall be divided into the population of each county. For the
purpose of this article, the population of each county is the population as determined by the last
preceding decennial census taken under the authority of the United States government."
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-10a. Salary of justices.
The salary of each of the Justices of the Supreme Court of Appeals shall be seventy-two
ninety-five thousand dollars per year: Provided, That beginning the first day of January July, one
thousand nine hundred ninety-five two thousand five, the salary of each of the Justices of the
Supreme Court shall be eighty-five one hundred ten thousand dollars per year. Provided, however, That beginning the first day of July, one thousand nine hundred ninety-nine, the salary of each of the
justices of the supreme court shall be ninety-five thousand dollars per year.
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-13. Salaries of judges of circuit courts.
The salaries of the judges of the various circuit courts shall be paid solely out of the State
Treasury. No county, county commission, board of commissioners or other political subdivision
shall supplement or add to such salaries.
The annual salary of all circuit judges shall be sixty-five ninety thousand dollars per year:
Provided, That beginning the first day of January July, one thousand nine hundred ninety-five two
thousand five, the annual salary of all circuit judges shall be eighty one hundred thousand dollars per
year. Provided, however, That beginning the first day of July, one thousand nine hundred ninety-
nine, the annual salary of all circuit judges shall be ninety thousand dollars per year.
ARTICLE 2A. FAMILY COURTS.
§51-2A-6. Compensation and expenses of family court judges and their staffs.
(a) Until the thirty-first day of December, two thousand two, a family court judge is entitled
to receive as compensation for his or her services an annual salary of sixty thousand dollars.
Beginning the first day of January, two thousand three, A family court judge is entitled to receive
as compensation for his or her services an annual salary of sixty-two thousand five hundred dollars:
Provided, That beginning the first day of July, two thousand five, a family court judge is entitled to
receive as compensation for his or her services an annual salary of sixty-seven thousand five hundred
dollars.
(b) The secretary-clerk of the family court judge is appointed by the family court judge and
serves at his or her will and pleasure. The secretary-clerk of the family court judge is entitled to
receive an annual salary of twenty-five thousand three hundred thirty-two dollars. In addition, any
person employed as a secretary-clerk to a family law master court judge on the effective date of the
enactment of this section during the sixth extraordinary session of the Legislature in the year two
thousand one who is receiving an additional five hundred dollars per year up to ten years of a certain
period of prior employment under the provisions of the prior enactment of section eight of this article during the second extraordinary session of the Legislature in the year one thousand nine hundred
ninety-nine shall continue to receive such additional amount. Further, the secretary-clerk will
receive such percentage or proportional salary increases as may be provided for by general law for
other public employees and is entitled to receive the annual incremental salary increase as provided
for in article five, chapter five of this code.
(c) The family court judge may employ not more than one family case coordinator who serves
at his or her will and pleasure. The annual salary of the family case coordinator of the family court
judge shall be established by the Administrative Director of the Supreme Court of Appeals but may
not exceed thirty-six thousand sixty dollars. The family case coordinator will receive such
percentage or proportional salary increases as may be provided for by general law for other public
employees and is entitled to receive the annual incremental salary increase as provided for in article
five, chapter five of this code.
(d) The sheriff or his or her designated deputy shall serve as a bailiff for a family court judge.
The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is
available when a family court judge determines the same is necessary for the orderly and efficient
conduct of the business of the family court.
(e) Disbursement of salaries for family court judges and members of their staffs are made by
or pursuant to the order of the Director of the Administrative Office of the Supreme Court of
Appeals.
(f) Family court judges and members of their staffs are allowed their actual and necessary
expenses incurred in the performance of their duties. The expenses and compensation will be
determined and paid by the Director of the Administrative Office of the Supreme Court of Appeals
under such guidelines as he or she may prescribe, as approved by the Supreme Court of Appeals.
(g) Notwithstanding any other provision of law, family court judges are not eligible to
participate in the retirement system for judges under the provisions of article nine of this chapter."
The Speaker put the question on the adoption of the foregoing amendment, and Delegate
Cann requested a division of the House thereon.
Whereupon,
The House then divided.
Members rising in favor of the amendment - 41
Member rising in opposition to the amendment - 57
Less than a majority of the members having arisen in favor, the Speaker declared the
amendment rejected.
Delegates Blair and G. White moved to amend the bill on page two, following the enacting
section, by striking out the remainder of the bill and inserting in lien thereof the provisions of H. B.
3004.
Delegate Mann arose to a point of order as to the germaneness of the amendment.
The Speaker replied that, upon examination, the amendment sought to include State Police
in the bill which dealt solely with salaries of constitutional officers and members of the judicial
branch of government and ruled the amendment not germane to the fundamental purpose of the bill.
The bill was then read a third time.
Delegate Overington requested to be excused from voting on the passage of the bill under
the provisions of House Rule 49, stating that his wife was a magistrate who would receive a salary
increase under the provisions of the bill.
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.
Delegate Shoen requested to be excused from voting on the passage of the bill under the
provisions of House Rule 49, stating that her brother serves as a circuit judge and would receive a
salary increase under the provisions of the bill.
The Speaker refused to excuse the Lady from voting, stating that she was a member of a class
of persons possibly to be affected by the passage of the bill and that she demonstrated no direct
personal or pecuniary interest therein.
These rulings will stand as the judgment of the Chair and of the House, pursuant to the
inherent right to make, interpret and enforce our rules of procedure as established by our sovereign,
non-reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 618),
and there were--yeas 67, nays 29, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Anderson, Armstead, Blair, Border, Cann, Carmichael, Doyle, Duke, Evans, Frich,
Hamilton, Hartman, Hatfield, Iaquinta, Lane, Leggett, Louisos, Mahan, Poling, Porter, Rowan,
Schadler, Spencer, Stevens,, Sumner, Susman, Tabb, Tansill and Wysong.
Absent And Not Voting: Ferrell, Fragale, Overington and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 514) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 514 -- "A Bill to amend and reenact §6-7-2 of the Code of West
Virginia, 1931, as amended; to amend and reenact §50-1-3 of said code; to amend and reenact §51-1-
10a of said code; to amend and reenact §51-2-13 of said code; and to amend and reenact §51-2A-6
of said code, all relating generally to the salaries of the Governor, Attorney General, State Treasurer,
State Auditor, Commissioner of Agriculture, Secretary of State, Supreme Court Justices, judges of
circuit courts, family court judges and magistrates; and effective dates."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 619), and there were--yeas 82, nays
14, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Border, Duke, Evans, Frich, Hamilton, Louisos, Poling, Porter, Rowan, Schadler,
Stevens, Sumner, Tabb and Wysong.
Absent And Not Voting: Ferrell, Fragale, Overington and Schoen.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 514) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 521, Requiring study on flood and general property insurance for State Board of
Education; was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 620),
and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Evans.
Absent And Not Voting: Ferrell, Fragale and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 521) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 524, Transferring centralized accounting system from Department of Administration
to Auditor's Office; on third reading, coming up in regular order, with the right to amend, was
reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and
adopted, amending the bill on page two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §5A-2-34, to read as follows:
ARTICLE 2. FINANCE DIVISION.
§5A-2-34. Study of centralized accounting system.
(a) The Legislature finds an examination of administration of the State's centralized
accounting system is warranted to determine whether improvements are necessary to obtain optimal
function and economical operation of the system, including, but not limited to whether a transfer of
responsibility for administration the system is warranted or indicated to reach those ends. It is
therefore the intent of the Legislature that appropriate public officials conduct a study of the centralized accounting system and provide the results of the study and any recommendations
indicated for the improvement of the system to the Legislature for its consideration.
(b) The Secretary of the Department of Administration, the Secretary of the Department of
Revenue, the Secretary of the Department of Health and Human Resources, the Secretary of the
Department of Transportation, the West Virginia Higher Education Policy Commission, the State
Treasurer and the Auditor of the State shall conduct a study of the centralized accounting system for
the purposes specified in subsection (a) of this section and for such other related purposes as they
may agree are advisable. The study shall include the examination of the centralized accounting
system by an independent consultant agreed upon by the Secretary of the Department of
Administration and the Secretary of the Department of Revenue after consultation with the
remainder of the public officials designated in this section to conduct the study. A report of the study
and any resulting recommendations made by the public officials designated by this section to conduct
the study shall be submitted to the Joint Committee on Government and Finance on or before the
first day of December, two thousand five, and shall include the written report and any
recommendations of the independent consultant."
There being no further amendments, bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 621),
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: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 524) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 524 -- "A Bill amend the Code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §5A-2-34, relating to requiring a study of the centralized accounting
system of the State to determine whether improvements are necessary to obtain optimal function and
economical operation of the system, including, but not limited to whether a transfer of responsibility for administration the system is warranted or indicated to reach those ends, and for such other related
purposes as the Secretary of the Department of Administration, the Secretary of the Department of
Revenue, the Secretary of the Department of Health and Human Resources, the Secretary of the
Department of Transportation, the West Virginia Higher Education Policy Commission, the State
Treasurer and the Auditor of the State may agree are advisable."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 622), 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: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 524) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 558 , Relating to management and investment of public funds; coming
up in regular order, as unfinished business, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 587, Relating to appointment of counsel in abuse and neglect cases; was
read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 623),
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: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 587) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 603, Relating to higher education; on third reading, coming up in
regular order, was reported by the Clerk.
At the request of Delegate Campbell, and by unanimous consent, further consideration of the
bill was postponed until the completion of the bills on the third reading calendar.
Com. Sub. for S. B. 661, Relating to juvenile proceedings and multidisciplinary teams; was
read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 624),
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: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 661) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 661 -- "A Bill to amend and reenact §49-5-13a and §49-5-20 of the
Code of West Virginia, 1931, as amended; and to amend and reenact §49-5D-3 of said code, all
relating to juvenile proceedings and multidisciplinary teams; requiring the Division of Juvenile
Services to establish a multidisciplinary team treatment planning process for certain juveniles in its
custody; requiring multidisciplinary team to be convened and directed by the Division of Juvenile
Services for juveniles committed to its custody by the court for examination and diagnosis;
specifying members of the multidisciplinary team; requiring multidisciplinary team to be convened
for juveniles prior to discharge from a juvenile correctional facility or mental health facility; and
authorizing those who convene a multidisciplinary team meeting to obtain an order of the circuit
court setting a hearing and compelling attendance."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 625), 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: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 661) 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.
S. B. 669, Transferring certain election duties from circuit clerk to clerk of county
commission; on third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
bill was then postponed until the completion of all items remaining on the calendar.
S. B. 728, Relating to disposition of state surplus property; on third reading, coming up in
regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
On recommendation of the Committee on Finance the bill was amended on page one,
following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof
the following:
"ARTICLE 3. PURCHASING DIVISION.
§5A-3-45. Disposition of surplus state property; semiannual report; application of proceeds
from sale.
(a) The state agency shall have for surplus property has the exclusive power and authority
to make disposition of commodities or expendable commodities now owned or in the future acquired
by the state when any such the commodities are or become obsolete or unusable or are not being used
or should be replaced.
(b) The agency shall determine what commodities or expendable commodities should be
disposed of and shall make such disposition in the manner which will be most advantageous to the
state. either by The disposition may include:
(1) Transferring the particular commodities or expendable commodities between
departments; by
(2) Selling such the commodities to county commissions, county boards of education,
municipalities, public service districts, county building commissions, airport authorities, parks and
recreation commissions, nonprofit domestic corporations qualified as tax exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and or volunteer fire departments in
this state when such the volunteer fire departments have been held exempt from taxation under
Section 501(c) of the United States Internal Revenue Code; by
(3) Trading in such the commodities as a part payment on the purchase of new commodities;
or by sale thereof
(4) Cannibalizing the commodities pursuant to procedures established under subsection (g)
of this section;
(5) Properly disposing of the commodities as waste; or
(6) Selling the commodities to the highest bidder by means of public auctions or sealed bids,
after having first advertised the time, terms and place of such the sale as a Class II legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. and
The publication area for such the publication shall be is the county wherein in which the sale is to
be conducted. The sale may also be advertised in such other advertising media as that the agency
may deem considers advisable. The agency may sell to the highest bidder or to any one or more of
the highest bidders, if there is more than one, or, if the best interest of the state will be served, reject
all bids.
(c) Upon the transfer of commodities or expendable commodities between departments, or
upon the sale thereof of commodities or expendable commodities to an eligible organization
described above, the agency shall set the price to be paid by the receiving eligible organization, with
due consideration given to current market prices.
(d) The agency may sell expendable, obsolete or unused motor vehicles owned by the state
to an eligible organization, other than volunteer fire departments. In addition, the agency may sell
expendable, obsolete or unused motor vehicles owned by the state with a gross weight in excess of
four thousand pounds to an eligible volunteer fire department. The agency, with due consideration
given to current market prices, shall set the price to be paid by the receiving eligible organization for
motor vehicles sold pursuant to this provision: Provided, That the sale price of any motor vehicle
sold to an eligible organization shall may not be less than the 'average loan' value, as published in
the most recent available eastern edition of the National Automobile Dealer's Association (N. A. D. A.) Official Used Car Guide, if such a the value is available, unless the fair market value of the
vehicle is less than the N. A. D. A. 'average loan' value, in which case the vehicle may be sold for
less than the 'average loan' value. Such The fair market value must shall be based on a thorough
inspection of the vehicle by an employee of the agency who shall consider the mileage of the vehicle
and the condition of the body, engine and tires as indicators of its fair market value. If no such fair
market value is available, the agency shall set the price to be paid by the receiving eligible
organization with due consideration given to current market prices. The duly authorized
representative of such the eligible organization, for whom such the motor vehicle or other similar
surplus equipment is purchased or otherwise obtained, shall cause ownership and proper title thereto
to the motor vehicle to be vested only in the official name of the authorized governing body for
whom the purchase or transfer was made. Such The ownership or title, or both, shall remain in the
possession of that governing body and be nontransferable for a period of not less than one year from
the date of such the purchase or transfer. Resale or transfer of ownership of such the motor vehicle
or equipment prior to an elapsed period of one year may be made only by reason of certified
unserviceability.
(e) The agency shall report to the Legislative Auditor, semiannually, all sales of commodities
or expendable commodities made during the preceding six months to eligible organizations. The
report shall include a description of the commodities sold, the price paid by the eligible organization
which received the commodities and the report shall show to whom each commodity was sold.
(f) The proceeds of such the sales or transfers shall be deposited in the State Treasury to the
credit on a pro rata basis of the fund or funds out of which the purchase of the particular
commodities or expendable commodities was made: Provided, That the agency may charge and
assess fees reasonably related to the costs of care and handling with respect to the transfer,
warehousing, sale and distribution of state property disposed of or sold pursuant to the provisions
of this section.
(g)(1) For purposes of this section, 'cannibalization' means the removal of parts from one
commodity to use in the creation or repair of another commodity.
(2) The Director of the Purchasing Division shall propose for promulgation legislative rules
to establish procedures that permit the cannibalization of a commodity when it is in the best interests
of the state. The procedures shall require the approval of the Director prior to the cannibalization
of the commodity under such circumstances as the procedures may prescribe.
(3)(A) Under circumstances prescribed by the procedures, state agencies shall be required
to submit a form, in writing or electronically, that, at a minimum, elicits the following information
for the commodity the agency is requesting to cannibalize:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable and, if so, how well it operates;
(vi) How the agency will dispose of the remaining parts of the commodity; and
(vii) Who will cannibalize the commodity and how the person is qualified to remove and
reinstall the parts.
(B) If the agency has immediate plans to use the cannibalized parts, the form shall elicit the
following information for the commodity or commodities that will receive the cannibalized part or
parts:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable;
(vi) Whether the part restores the commodity to an operable condition; and
(vii) The cost of the parts and labor to restore the commodity to an operable condition
without cannibalization.
(C) If the agency intends to retain the cannibalized parts for future use, it shall provide
information justifying its request.
(D) The procedures shall provide for the disposal of the residual components of cannibalized
property.
(h)(1) The Director of the Purchasing Division shall propose for promulgation legislative
rules to establish procedures that allow state agencies to dispose of commodities in a landfill, or by
other lawful means of waste disposal, if the value of the commodity is less than the benefit that may
be realized by the state by disposing of the commodity using another method authorized in this
section. The procedures shall specify circumstances where the state agency for surplus property shall
inspect the condition of the commodity prior to authorizing the disposal and those circumstances
when the inspection is not necessary prior to the authorization.
(2) Whenever a state agency requests permission to dispose of a commodity in a landfill, or
by other lawful means of waste disposal, the state agency for surplus property has the right to take
possession of the commodity and to dispose of the commodity using any other method authorized
in this section.
(3) If the state agency for surplus property determines, within fifteen days of receiving a
commodity, that disposing of the commodity in a landfill or by other lawful means of waste disposal
would be more beneficial to the state than disposing of the commodity using any other method
authorized in this section, the cost of the disposal is the responsibility of the agency from which it
received the commodity."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 626),
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: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 728) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 728 - "A Bill to amend and reenact §5A-3-45 of the Code of West Virginia, 1931, as
amended, relating to the disposition of state surplus property generally; allowing cannibalization of
commodities under certain circumstances; allowing the disposing of commodities as waste under
certain circumstances; providing for procedures by legislative rules; defining cannibalization;
allowing the state agency for surplus property to take possession of a commodity in certain
circumstances and dispose of the commodity using any method authorized in the section; and
providing that the cost of disposal in certain circumstances is the responsibility of the agency from
which the state agency for surplus property received the commodity."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 729, Authorizing magistrate courts order home incarceration; on third
reading, coming up in regular order, with an amendment pending and the further right to amend, was
reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and
adopted, amending on page two, following the enacting section, by striking out the remainder of the
bill and inserting in lieu thereof the following:
"ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-4. Home incarceration; period of home incarceration; applicability.
(a) As a condition of probation or bail or as an alternative sentence to another form of
incarceration for any criminal violation of this code over which a circuit court has jurisdiction, a
circuit court may order an offender confined to the offender's home for a period of home
incarceration. As an alternative sentence to incarceration in jail for any criminal violation of this
code over which a magistrate court has jurisdiction or as a condition of bail for a criminal violation
of this code over which a magistrate court has jurisdiction to set bail, a magistrate may order an adult
offender convicted of any criminal violation under this code over which a magistrate court has
jurisdiction, be confined to the offender's home for a period of electronically monitored home
incarceration: Provided, That electronic monitoring may not be required in a specific case if a circuit
court upon petition thereto finds by order that electronic monitoring is not necessary.
(b) The period of home incarceration may be continuous or intermittent, as the circuit court
or magistrate court orders, or continuous except as provided by section five of this article if ordered
by a magistrate. However, the aggregate time actually spent in home incarceration may not exceed
the term of imprisonment or incarceration prescribed by this code for the offense committed by the
offender.
(c) A grant of home incarceration under this article constitutes a waiver of any entitlement
to deduction from a sentence for good conduct under the provisions of section twenty-seven, article
five, chapter twenty-eight of this code.
(d) When imposing home incarceration as a condition of bail, a magistrate shall do so
consistent with guidelines promulgated by the Supreme Court of Appeals.".
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 627),
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: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 729) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 628), 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: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 729) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 746, Reducing rate of tax paid on privilege of severing timber after certain date; on
third reading, coming up in regular order, was read a third time.
Delegate Armstead requested to be excused from voting on the passage of S. B. 746 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.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 629),
and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Browning, Caputo, Hrutkay, Longstreth, Louisos, Manchin, Martin and Porter.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 746) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 746 -- "A Bill to amend and reenact §11-13A-3a, §11-13A-3b and §11-13A-3d of the
Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section,
designated §11-13A-5b, all relating to the reduction from five percent to four percent in the
severance tax imposed on natural gas produced from wells placed in service on or after the first day
of December, two thousand five; the reduction from three and twenty-two hundredths percent to one
and twenty-two hundredths percent in the severance tax imposed on timber produced on or after the
first day of December, two thousand five; reducing the period of availability of a certain five-year
severance tax exemption for coalbed methane production; reducing from five percent to four percent
the severance tax on gas produced from coalbed methane wells on or after the first day of December,
two thousand five; and dedicating and distributing ten percent of coalbed methane severance tax for
benefit of counties and municipalities."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 748, Providing credit for mitigation required as component of Army Corps of
Engineers; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 630),
and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Hamilton.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 748) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for H. B. 2005, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution; on third reading, coming
up in regular order, was read a third time.
Delegates Argento, Armstead, Ashley, Azinger, Boggs, Browning, Campbell, Cann, Ellen,
Ennis, Frich, Hamilton, Kominar, Lane, Mahan, Marshall, Schoen, Stemple, Stephens, Swartzmiller,
Trump, Walters, G. White, H. White, Williams and Wysong requested to be excused from voting
on the passage of Com. Sub. for H. B. 2005 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of
a class of persons possibly to be affected by the passage of the bill and that they demonstrated no
direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bill, the yeas and nays were taken (Roll No. 631), and there were--yeas
91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Lane, Louisos, Overington, Porter and Walters.
Absent And Not Voting: Ferrell and Fragale.
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. 2005) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 632), 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: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2005) 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. 3363, Supplementing, amending, reducing and adding a new item to the existing
appropriations from the state fund to the department of military affairs and public safety - division
of corrections; 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. 633), 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: Ferrell and Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3363) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 634), 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: Crosier, Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3363) 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. 3364, Making supplementary appropriation of federal funds to the department of
environmental protection - division of environmental protection; 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. 635), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3364) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 636), and there were--yeas 97, nays
1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3364) 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
On motion of Delegate Staton, S. B. 622, Clarifying exemption for property used by certain
not-for-profit, tax-exempt corporations; on second reading, was taken up for further consideration
and read second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page one, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-9. Property exempt from taxation.
(a) All property, real and personal, described in this subsection, and to the extent herein
limited, is exempt from taxation:
(1) Property belonging to the United States, other than property permitted by the United
States to be taxed under state law;
(2) Property belonging exclusively to the state;
(3) Property belonging exclusively to any county, district, city, village or town in this state,
and used for public purposes;
(4) Property located in this state, belonging to any city, town, village, county or any other
political subdivision of another state, and used for public purposes;
(5) Property used exclusively for divine worship;
(6) Parsonages and the household goods and furniture pertaining thereto;
(7) Mortgages, bonds and other evidence of indebtedness in the hands of bona fide owners
and holders hereafter issued and sold by churches and religious societies for the purposes of securing
money to be used in the erection of church buildings used exclusively for divine worship, or for the
purpose of paying indebtedness thereon;
(8) Cemeteries;
(9) Property belonging to, or held in trust for, colleges, seminaries, academies and free
schools, if used for educational, literary or scientific purposes, including books, apparatus, annuities
and furniture;
(10) Property belonging to, or held in trust for, colleges or universities located in West
Virginia, or any public or private nonprofit foundation or corporation which receives contributions
exclusively for such college or university, if the property or dividends, interest, rents or royalties
derived therefrom are used or devoted to educational purposes of such college or university;
(11) Public and family libraries;
(12) Property used for charitable purposes, and not held or leased out for profit;
(13) Property used for the public purposes of distributing water or natural gas, or providing
sewer service by a duly chartered nonprofit corporation when such property is not held, leased out
or used for profit;
(14) Property used for area economic development purposes by nonprofit corporations when
such property is not leased out for profit;
(15) All real estate not exceeding one acre in extent, and the buildings thereon, used
exclusively by any college or university society as a literary hall, or as a dormitory or clubroom, if
not used with a view to profit, including, but not limited to, property owned by a fraternity or sorority
organization affiliated with a university or college, or property owned by a nonprofit housing
corporation or similar entity on behalf of a fraternity or sorority organization affiliated with a
university or college, when the property is used as residential accommodations, or as a dormitory for
members of the organization;
(16) All property belonging to benevolent associations, not conducted for private profit;
(17) Property belonging to any public institution for the education of the deaf, dumb or blind,
or any hospital not held or leased out for profit;
(18) Houses of refuge and mental health facility or orphanage facilities or orphanages;
(19) Homes for children or for the aged, friendless or infirm, not conducted for private profit
including a continuing care retirement community which is owned or leased by a corporation or other
organization exempt from federal income taxes under Section 501(c) (3) or (c) (4) of the Internal
Revenue Code of 1986, is used in a manner consistent with the charitable purpose for which owner
or lessee received its federal tax exemption and the income from which does not constitute 'unrelated
business taxable income' as that term is defined in Section 512 of the Internal Revenue Code of
1986. For purposes of this subsection, a 'continuing care retirement community' is a facility at
which one or more service and housing packages, such as independent living or assisted living, are
provided to its elderly residents in exchange for the payment of an entrance fee or deposit or payment
of periodic charges or both and also includes assisted living facilities licensed under article five-d,
chapter sixteen of the code and residential care communities licensed under article five-n, chapter
sixteen of the code: Provided, That the term continuing care retirement community is not intended
to include nursing homes licensed under article five-c of said chapter;
(20) Fire engines and implements for extinguishing fires, and property used exclusively for
the safekeeping thereof, and for the meeting of fire companies;
(21) All property on hand to be used in the subsistence of livestock on hand at the
commencement of the assessment year;
(22) Household goods to the value of two hundred dollars, whether or not held or used for
profit;
(23) Bank deposits and money;
(24) Household goods, which for purposes of this section means only personal property and
household goods commonly found within the house and items used to care for the house and its
surrounding property, when not held or used for profit;
(25) Personal effects, which for purposes of this section means only articles and items of
personal property commonly worn on or about the human body, or carried by a person and normally
thought to be associated with the person when not held or used for profit;
(26) Dead victuals laid away for family use;
(27) All property belonging to the state, any county, district, city, village, town or other
political subdivision, or any state college or university which is subject to a lease purchase agreement
and which provides that, during the term of the lease purchase agreement, title to the leased property
rests in the lessee so long as lessee is not in default or shall not have terminated the lease as to the
property; and
(28) Personal property, including livestock, employed exclusively in agriculture, as defined
in article ten, section one of the West Virginia Constitution, the products of agriculture, and while
owned by the producer; and
(28) (29) Any other property or security exempted by any other provision of law.
(b) Notwithstanding the provisions of subsection (a) of this section, no property is exempt
from taxation which has been purchased or procured for the purpose of evading taxation, whether
temporarily holding the same over the first day of the assessment year or otherwise.
(c) Real property which is exempt from taxation by subsection (a) of this section shall be
entered upon the assessor's books, together with the true and actual value thereof, but no taxes may
be levied upon the property or extended upon the assessor's books.
(d) Notwithstanding any other provisions of this section, this section does not exempt from
taxation any property owned by, or held in trust for, educational, literary, scientific, religious or other
charitable corporations or organizations, including any public or private nonprofit foundation or
corporation existing for the support of any college or university located in West Virginia, unless such
property, or the dividends, interest, rents or royalties derived therefrom, is used primarily and
immediately for the purposes of the corporations or organizations.
(e) The Tax Commissioner shall, by issuance of rules, provide each assessor with guidelines
to ensure uniform assessment practices statewide to effect the intent of this section.
(f) Inasmuch as there is litigation pending regarding application of this section to property
held by fraternities and sororities, amendments to this section enacted in the year one thousand nine
hundred ninety-eight shall apply to all cases and controversies pending on the date of such
enactment.
(g) The amendment to subdivision (27), subsection (a) of this section, passed during the two
thousand five regular session of the Legislature, shall apply to all applicable lease purchase
agreements in existence upon the effective date of the amendment."
The bill was then ordered to third reading.
Delegate Staton asked and obtained unanimous consent that the remarks of the legislative
interns be printed in the Appendix to the Journal.
At 11:27 a.m., on motion of Delegate Staton, the House of Delegates recessed until 1:30 p.m.,
and reconvened at that time.
Miscellaneous Business
Delegate Ferrell announced that he was absent when the vote was taken on Roll Nos. 579
through 636, and had be been present he would have voted "Ya" thereon.
Delegate Hunt announced that he was absent when the vote was taken on Roll Nos. 579
through 595, and had be been present he would have voted "Yea" thereon.
Delegate Mahan announced that she was absent on Roll No. 579 through 586, and had she
been present she would have voted "Yea" thereon.
Delegate Ennis announced that he was absent on Roll No. 610, and had he been present he
would have voted "Yea" thereon.
Delegate Sobonya announced that she was absent when the votes were taken on Roll Nos.
579 and 580, and had she been present she would have voted "Nay" thereon, and that she was
absent on Roll Nos. 581-584, and had she been present she would have noted "Yea" thereon.
Delegate Stevens announced that she was absent on Roll No. 579, 580 and 586, and had she
been present she would have voted "Yea" thereon.
Reordering of the Calendar
Delegate Staton announced that the Committee on Rules had transferred the following
Resolutions from the House Calendar to the Special Calendar:
H. C. R. 62, Requesting the Division of Highways name the bridge located on Jakes Run
Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge",
H. C. R. 66, Requesting the Joint Committee on Government and Finance study the
increasing role sanitarians play in protecting public health,
H. C. R. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the
southern entrance to Wellsburg in Brooke County, the "John G. Chernenko Bridge",
H. C. R. 90, Requesting the Joint Committee on Government and Finance to conduct a study
on oral health in West Virginia,
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and
future highway financing,
S. C. R. 93, Requesting Joint Committee and Government and Finance study homeowners'
and commercial property and casualty insurance,
H. C. R. 98, Requesting the Joint Committee on Government and Finance study the
development of a coordinated deployment and operation of broadband Internet access throughout
the state.
And,
H. C. R. 100, Expressing support of the College Summit program and requesting the Joint
Committee on Government and Finance to make a study on finding funding to help College Summit
in its goal to assist West Virginia's students in furthering their education.
Delegate Staton announced further that the Committee on Rules had transferred the following
bills from the House Calendar, third reading, to the Special Calendar:
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund,
S. B. 159, Creating Consolidated Local Government Act,
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
S. B. 467, Authorizing Director of Division of Protective Services assess, charge and collect
fees,
S. B. 561, Authorizing Greater Huntington Park and Recreation District impose fees and
issue revenue bonds,
And,
S. B. 666, Relating to exemptions for certain insurance companies from business franchise
tax and corporation net income tax.
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 Rules and
reported with the recommendation that it be adopted), which was read by it title as follows:
H. C. R. 104 - "Authorizing the Clerk of the Senate and the Clerk of the House of Delegates
to correct a designation or term used in certain bills that, from the context, is clearly wrong."
Whereas, Several bills have passed both houses of the Legislature using the term
"correctional facility" when the context of the bills obviously indicates that the term "regional jail"
would be the correct term to be used; and
Whereas, The Legislature wishes to avoid a gubernatorial veto based on purely technical
grounds created by a misnomer, therefore, be it
Resolved by the Legislature of West Virginia:
That the Clerk of the West Virginia Senate and the Clerk of the House of Delegates in their
capacity to enroll all of the bills enacted by the Legislature during the Regular Session of the
Legislature, 2005, may correct the use of the designation or term "correctional facility" used in
certain bills where, from the context, it is obviously indicated that the designation or term "regional
jail" is correct and should be used.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. C. R.
104) was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Special Calendar
Unfinished Business
H. C. R. 62 - Requesting the Division of Highways name the bridge located on Jakes Run
Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers 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. 81, Naming the bridge which traverses Buffalo Creek on State Route 2 at the
southern entrance to Wellsburg in Brooke County, the "John G. Chernenko 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. 90, Requesting the Joint Committee on Government and Finance to conduct a study
on oral health in West Virginia"; 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. 93, Providing for the issuance of not to exceed three hundred seventy-five million
dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996"; 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. 94, Requesting the Joint Committee on Government and Finance to study the
actions that may be undertaken to ensure the competitiveness of West Virginia's coal industry;
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. 98, Requesting the Joint Committee on Government and Finance study the
development of a coordinated deployment and operation of broadband Internet access throughout
the state; 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. 100, Expressing support of the College Summit program and requesting the Joint
Committee on Government and Finance to make a study on finding funding to help College Summit
in its goal to assist West Virginia's students in furthering their education; 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.
S. C. R. 90, Requesting Joint Committee on Government and Finance study current and
future highway financing; coming up in regular order as unfinished business was reported by the
Clerk.
An amendment recommended by the Committee on Rules, was reported by the Clerk and
adopted amending the resolution on page one, line eight, by inserting the following:
"Whereas, It is critical that West Virginia develops and maintains a modern transportation
system that can accommodate future growth in population, vehicle travel, tourism and economic
development; and
Whereas, West Virginia's extensive system of roads and bridges provides the state's 1.8
million residents and visitors a high level of mobility; and
Whereas, West Virginia is one of only four states in the nation in which there is no county
and/or city ownership of highways; and,
Whereas, West Virginia is responsible for maintaining more than ninety-four percent of all
public highway mileage in the state, the highest of such percentages in the nation; and"
The resolution, as amended, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
S. B. 583, Relating to appealing orders from family court to circuit court.
.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment
and requested the Senate to agree 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 Webster, Hrutkay and Howard.
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 amendment, a bill of
the House of Delegates as follows:
H. B. 2476, Relating generally to parole and parole proceedings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page five, section nineteen, lines sixty-seven through seventy-one, by striking out the
following:
"Any person having been released on parole three times and subsequently had his or her
parole revoked for violations of any term or condition of parole shall serve the remainder of his or
her sentence and is not eligible for further release on parole."
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. 637), 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: Thompson, Rick.
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. 2476 ) 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. 2523, Making it a crime for released inmates to contact correctional
employees and requiring that inmates be advised of such prohibition upon release.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported to the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §61-10-32, to read as follows:
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.
§61-10-32. Unlawful contact with a Division of Corrections employee or member of the parole
board; penalty.
(a) It shall be unlawful for a former inmate of the Division of Corrections to make a
telephone call to a Division of Corrections employee or member of the parole board when the
employee has requested in writing to that former inmate that he or she not call and the former inmate
has actually been served with a copy of the written request.
(b) It shall be unlawful for a former inmate of the Division of Corrections to willfully and
repeatedly follow a Division of Corrections employee or member of the parole board with whom he
or she seeks to establish a personal or social relationship when the Division of Corrections employee
or member of the parole board has expressed to the former inmate that he or she wishes not to have
contact with the former inmate.
(c) It shall be unlawful for a former inmate of the Division of Corrections to harass or make
credible threats against a Division of Corrections employee or member of the parole board.
(d) Any offense committed under sub-section (a) may be deemed to have occurred at the
place at which the telephone call was made, or the place at which the telephone call was received.
(e) Any person who violates any provision of this section shall be guilty of a misdemeanor,
and, upon conviction thereof, shall, for a first offense, be fined not more than five hundred dollars.
Any person violating this section for a second offense shall be imprisoned not less than ten days nor
more than six months, or both fined and imprisoned.
(f) For purposes of this section:
(1) 'Harass' means willful conduct directed at a specific person or persons which would
cause a reasonable person mental injury or emotional distress;
(2) 'Credible threat' means a threat of bodily injury made with apparent ability to carry out
the threat and with the result that a reasonable person would believe that the threat would be carried
out;
(3) 'Bodily injury' means substantial physical pain, illness or any impairment of physical
condition.
(4) 'Immediate family' means a spouse, parent, stepparent, mother-in-law, father-in-law,
child, stepchild, sibling, or any person who regularly resides in the household or within the prior six
months regularly resided in the household.
(g) Upon conviction, the court may issue an order restraining the defendant from any contact
with the victim for a period not to exceed ten years. The length of any restraining order shall be
based upon the seriousness of the violation before the court, the probability of future violations, and
the safety of the victim or his immediate family. The duration of the restraining order may be longer
than five years only in cases when a longer duration is necessary to protect the safety of the victim
or his or her immediate family.
(h) It is a condition of bond for any person accused of the offense described in this section
that the person is to have no contact, direct or indirect, verbal or physical with the alleged victim."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2523 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §61-10-32, relating to making it a crime for released
inmates to contact correctional employees or members of the parol board in certain circumstances."
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. 638), 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: Rick Thompson.
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. 2523) 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, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2812, Extending the time for the Preston County Board of Education
to meet as a levying body for the purpose of presenting a special levy election for the voters in the
county.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported to the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"PRESTON COUNTY SCHOOL BOARD MEETING AS LEVYING BODY EXTENDED.
§1. Extending time for the Preston County School Board to meet as levying body for an
election enacting a special levy for school funding.
Notwithstanding the provision of article eight, chapter eleven of the Code of West Virginia,
1931, as amended, the Board of Education of Preston County, West Virginia, is hereby authorized
to extend the time for its meeting as a levying body, setting the levy rate and certifying its actions
to the State Tax Commissioner from between the seventh and twenty-eighth days of March and the
third Tuesday in April until the ninth day of May, two thousand five, for the purpose of submitting
to the voters of Preston County the question of enacting a special levy for school funding."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2812 - "A Bill to extend the time for the Board of Education of Preston
County to meet as a levying body for the purpose of presenting to the voters of Preston County an
election on the question of enacting a special levy for school funding from between the seventh and
twenty-eighth days of March and the third Tuesday in April until the ninth day of May, two thousand
five."
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. 639), 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: Rick Thompson.
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. 2812) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 640), 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: Rick Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2812) 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 amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3328, Changing the name of the office of emergency services and
specifying additional responsibilities.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §15-5-1, §15-5-2, §15-5-3 and §15-5-13 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY
MANAGEMENT.
§15-5-1. Policy and purpose.
In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness, resulting from terrorism, enemy attack, sabotage or other
hostile action, or from fire, flood, earthquakes or other natural or man-made causes and in order to
insure that preparations of this state will be adequate to deal with such disasters, and generally to
provide for the common defense and to protect the public peace, health and safety and to preserve
the lives and property of the people of the state, it is hereby found and declared to be necessary: (1)
To create a state emergency services agency the Division of Homeland Security and Emergency
Management and to authorize the creation of local and regional organizations for emergency services
in the political subdivisions of the state; (2) to confer upon the Governor, and upon the executive
heads of governing bodies of the political subdivisions of the state the emergency powers provided
herein; (3) to provide for the rendering of mutual aid among the political subdivisions of the state
and with other states and to cooperate with the federal government with respect to the carrying out
of emergency services and homeland security functions; (4) and to establish and implement a
comprehensive emergency services homeland security and emergency management plan plans to
deal with such disasters. It is further declared to be the purpose of this article and the policy of the
state that all homeland security and emergency management funds and emergency services functions
of this state be coordinated to the maximum extent with the Secretary of the Department of Military
Affairs and Public Safety and with the comparable functions of the federal government including its
various departments and agencies, of other states and localities and of private agencies of every type,
so that the most effective preparation and use may be made of the nation's and this state's manpower,
resources and facilities for dealing with any disaster that may occur.
§15-5-2. Definitions.
As used in this article:
(a) 'Emergency services' means the preparation for and the carrying out of all emergency
functions, other than functions for which military forces are primarily responsible, to protect,
respond and recover, to prevent, detect, deter and mitigate, to minimize and repair injury and damage
resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage or other
natural or other man-made causes. These functions include, without limitation, fire-fighting
services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare
services, emergency transportation, existing or properly assigned functions of plant protection,
temporary restoration of public utility services and other functions related to civilian protection the
health, safety and welfare of the citizens of this state, together with all other activities necessary or
incidental to the preparation for and carrying out of the foregoing functions. Disaster includes the
imminent threat of disaster as well as its occurrence and any power or authority exercisable on
account of a disaster that may be exercised during the period when there is an imminent threat
thereof;
(b) 'Local organization for emergency services' means an organization created in accordance
with the provisions of this article by state or local authority to perform local emergency services
function;
(c) 'Mobile support unit' means an organization for emergency services created in accordance
with the provisions of this article by state or local authority to be dispatched by the Governor to
supplement local organizations for emergency services in a stricken area;
(d) 'Political subdivision' means any county or municipal corporation in this state;
(e) 'Board' means the West Virginia Disaster Recovery Board created by this article;
(f) 'Code' means the code of West Virginia, one thousand nine hundred thirty-one, as
amended;
(g) 'Community facilities' means a specific work or improvement within this state or a
specific item of equipment or tangible personal property owned or operated by any political
subdivision or nonprofit corporation and used within this state to provide any essential service to the
general public;
(h) 'Disaster' means the occurrence or imminent threat of widespread or severe damage,
injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including
weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or
other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other
public calamity requiring emergency action;
(i) 'Disaster recovery activities' means activities undertaken prior to, during or following a
disaster to provide, or to participate in the provision of, emergency services, temporary housing,
residential housing, essential business activities and community facilities;
(j) 'Emergency services' means the preparation for and the carrying out of all emergency
functions to prevent, minimize and repair injury and damage resulting from a disaster, including,
without limitation, fire-fighting services, police services, medical and health services,
communications, evacuation of persons and property from stricken areas, welfare services,
transportation, temporary restoration of public utility services, and other functions related to the
health, safety and welfare of the citizens of this state, together with all other activities necessary or
incidental to the preparation for and the carrying out of the foregoing functions;
(k) (j) 'Essential business activities' means a specific work or improvement within this state
or a specific item of equipment or tangible personal property used within this state by any person to
provide any essential goods or service deemed by the authority to be necessary for recovery from a
disaster;
(l) (k) 'Person' means any individual, corporation, voluntary organization or entity,
partnership, firm or other association, organization or entity organized or existing under the laws of
this or any other state or country;
(m) (l) 'Recovery fund' means the West Virginia Disaster Recovery Trust Fund created by
this article;
(n) (m) 'Residential housing' means a specific work or improvement within this state
undertaken primarily to provide dwelling accommodations, including the acquisition, construction
or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but
not limited to, facilities for temporary housing and emergency housing, and such other nonhousing
facilities as may be incidental or appurtenant thereto; and
(o) (n) 'Temporary housing' means a specific work or improvement within this state
undertaken primarily to provide dwelling accommodations, including the acquisition, construction
or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities as may be incidental or
appurtenant thereto.
(o) 'Secretary' means the Secretary of the West Virginia Department of Military Affairs and
Public Safety.
§15-5-3. Division of Homeland Security and Emergency Management created.
There is hereby created within the office of the governor an office to be known as (a) The
Office of Emergency Services, is continued as the Division of Homeland Security and Emergency
Management within the Department of Military Affairs and Public Safety. All of the allied,
advisory, affiliated or related entities and funds associated with the Office of Emergency Services
and all its functions, personnel and property, are transferred to, incorporated in and administered as
a part of the Division of Homeland Security and Emergency Management. Wherever the words
'Office of Emergency Services' appear in this code, they shall mean the Division of Homeland
Security and Emergency Management.
(b) A Director of the office of emergency services Division of Homeland Security and
Emergency Management hereinafter called the director, shall be appointed by the Governor, in
accordance with the provisions of section two-a, article seven, chapter six of this code. by and with
the advice and consent of the Senate. On and after the effective date of this article, the director of
civil and defense mobilization referred to in said section two-a shall be known and designated as the
director of emergency services. The Governor shall consider applicants for Director who at a
minimum: (1) Have at least five years managerial or strategic planning experience; (2) are
knowledgeable in matters relating to public safety, homeland security, emergency management and
emergency response; and (3) have at a minimum, a federally issued secret level security clearance
or have submitted to or will submit to a security clearance investigation for the purpose of obtaining,
at a minimum, a federally issued secret level security clearance.
(c) The Director may employ such technical, clerical, stenographic and other personnel and,
fix their compensation and may make such expenditures within the appropriation therefore to the
Division or from other funds made available to him for the purpose of providing emergency
homeland security and emergency management services as may be necessary to carry out the purpose of this article. Employees of the office of emergency services Division of Homeland Security and
Emergency Management shall be members of the State Civil Service System and all appointments
of the office, except those required by law to be exempt, shall be a part of the classified service under
the Civil Service System.
(d) The Director and other personnel of the office of emergency services Division of
Homeland Security and Emergency Management shall be provided with appropriate office space,
furniture, equipment, supplies, stationery and printing in the same manner as provided for personnel
of other state agencies.
(e) The Director, subject to the direction and control of the Governor through the Secretary
of the Department of Military Affairs and Public Safety, shall be executive head of the office of
emergency services Division of Homeland Security and Emergency Management and shall be
responsible to the Governor and the Secretary of the Department of Military Affairs and Public
Safety for carrying out the program for emergency services homeland security and emergency
management in this state. He The Director in consultation with the Secretary of the Department of
Military Affairs and Public Safety shall coordinate the activities of all organizations for homeland
security and emergency management emergency services within the state and maintain liaison with
and cooperate with homeland security, emergency management and other emergency service and
civil defense agencies and organizations of other states and of the federal government, and shall have
such additional authority, duties and responsibilities authorized by this article as may be prescribed
by the Governor or the Secretary of the Department of Military Affairs and Public Safety.
(f) The Director shall have the power to acquire in the name of the state by purchase, lease
or gift, real property and rights or easements necessary or convenient to construct thereon the
necessary building or buildings for housing and homeland security and emergency management
emergency services control center.
The office of emergency planning in the department of finance and administration is hereby
abolished and its functions, personnel and property transferred to the office of emergency services.
The department of civil and defense mobilization is hereby abolished and its functions, personnel
and property transferred to the office of emergency services.
§15-5-13. Appropriations; acceptance of services, gifts, grants and loans.
(a) Each political subdivision shall have the power to make appropriations in the manner
provided by law for making appropriations for the ordinary expenses of such political subdivision
for the payment of expenses of its local organization for emergency services or of its proportionate
share of expenses of a regional organization for emergency services, or both.
(b) Whenever the federal government or any agency or officer thereof shall offer to any
authority, corporation, partnership or other entity, public or private or the state, or through the state
to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift,
grant or loan, for purposes relating to homeland security or emergency services, the state, after
consultation and in coordination with the Secretary and acting through the Governor, or such a
political subdivision, after consultation and in coordination with the Secretary and acting with the
consent of the Governor and through its executive officer or governing body, may accept such the
offer. and upon such Upon acceptance, the Governor of the state or executive officer or governing
body of such the political subdivision may authorize any officer of the state or of the political
subdivision, as the case may be, to receive such services, equipment, supplies, materials or funds on
behalf of the state or such the political subdivision and subject to the terms of the offer and the rules
and regulations, if any, of the agency making the offer.
(c) Whenever any person, firm or corporation shall offer to the state or to any political
subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan,
for purposes relating to homeland security or emergency services, the state, after consultation and
in coordination with the Secretary and acting through the Governor, or such the political subdivision,
after consultation and in coordination with the Secretary and acting through its executive officer or
governing body, may accept such the offer. and upon such Upon acceptance, the Governor of the
state or executive officer or governing body of such the political subdivision may authorize any
officer of the state or of the political subdivision, as the case may be, to receive such services,
equipment, supplies, materials or funds on behalf of the state or such the political subdivision and
subject to the terms of the offer.
(e) The Governor may require any agency, authority, corporation, partnership or other entity
to furnish a report, in both written and electronic form, detailing the source and receipt of all
services, equipment, supplies, materials or funds for purposes relating to homeland security or
emergency services as a condition of receiving these from the state. Within ten days of the receipt
of any reports required under this subsection, the Governor shall furnish copies thereof to the
Legislature."
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. 641), 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: Thompson, Rick.
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. 3328) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 642), 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: Rick Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3328) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Third Reading
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund; on
third reading, with amendments pending, coming up in regular order, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §11A-3-20 and §11A-3-23 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-20. Refund to purchaser of payment made at sheriff's sale where property is subject
of an erroneous assessment or is otherwise nonexistent.
If, after by the thirty-first day of December one year after the payment of the amount bid at
a sheriff's sale, the purchaser discovers that the lien purchased at such that sale is the subject of an
erroneous assessment or is otherwise nonexistent, such the purchaser shall submit the abstract or
certificate of an attorney at law that the property is the subject of an erroneous assessment or is
otherwise nonexistent. Upon receipt thereof, of the abstract or certificate, the sheriff shall cause the
moneys so paid to be refunded. Upon refund, the sheriff shall inform the assessor of the erroneous
assessment for the purpose of having the assessor correct said the error. For failure to meet this
requirement, the purchaser shall lose all benefits of his or her purchase.
§11A-3-23. Redemption from purchase; receipt; list of redemptions; lien; lien of person
redeeming interest of another; record.
(a) After the sale of any tax lien on any real estate pursuant to section five of this article, the
owner of, or any other person who was entitled to pay the taxes on, any real estate for which a tax
lien thereon was purchased by an individual may redeem at any time before a tax deed is issued for
the real estate. In order to redeem, he or she shall pay to the clerk of the county commission the
following amounts: (1) An amount equal to the taxes, interest and charges due on the date of the
sale, with interest at the rate of one percent per month from the date of sale; (2) all other taxes which
have since been paid by the purchaser, his or her heirs or assigns, with interest at the rate of one
percent per month from the date of payment; (3) any additional expenses incurred from the first day
of January October of the year following the sheriff's sale to the date of redemption for the
preparation of the list of those to be served with notice to redeem and any title examination incident
thereto, with interest at the rate of one percent per month from the date of payment for reasonable
legal expenses incurred for the services of an attorney who has performed an examination of the title to the real estate and rendered a written opinion and certification thereon: Provided, That the amount
he or she shall be required to pay, excluding the interest, for the expenses incurred for the preparation
of the list of those to be served with notice to redeem required by section nineteen of this article and
any title examination performed, shall not exceed two four hundred dollars; and (4) all additional
statutory costs paid by the purchaser. Where the clerk has not received from the purchaser
satisfactory proof of the expenses incurred in preparing the notice to redeem, and any examination
of title incident thereto, in the form of receipts or other evidence of legal expenses incurred as
provided in section nineteen of this article, the person redeeming shall pay the clerk the sum of two
hundred dollars plus interest at the rate of one percent per month from the first day of January
October of the year following the sheriff's sale for disposition by the sheriff pursuant to the
provisions of sections ten, twenty-four, twenty-five and thirty-two of this article.
The person redeeming shall be given a receipt for the payment.
(b) Any person who, by reason of the fact that no provision is made for partial redemption
of the tax lien on real estate purchased by an individual, is compelled in order to protect himself or
herself to redeem the tax lien on all of the real estate when it belongs, in whole or in part, to some
other person, shall have a lien on the interest of that other person for the amount paid to redeem the
interest. He or she shall lose his or her right to the lien, however, unless within thirty days after
payment he or she files with the clerk of the county commission his or her claim in writing against
the owner of the interest, together with the receipt provided in this section. The clerk shall docket
the claim on the judgment lien docket in his or her office and properly index the claim. The lien may
be enforced as other judgment liens are enforced."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 643),
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: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 40) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 40 - "A Bill to amend and reenact §11A-3-20 and §11A-3-23 of the Code of West
Virginia, 1931, as amended, relating to a sheriff's tax on sale of real estate erroneously assessed or
nonexistent; modifying the method for a purchaser to recover the purchase money and; increasing
the title examination costs charged by the clerk of the county commission from two hundred dollars
to four hundred dollars to redeem real estate."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
following bills was then postponed:
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
And,
Com. Sub. for S. B. 561, Authorizing Greater Huntington Park and Recreation District
impose fees and issue revenue bonds.
S. B. 622, Clarifying exemption for property used by certain not-for-profit, tax-exempt
corporations; having been read a second time in earlier proceedings, was reported by the Clerk.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 644), and there were--yeas 62, nays
37, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Argento, Azinger, Barker, Brown, Browning, Canterbury, Caputo, Crosier,
Duke, Eldridge, Fragale, Hamilton, Hartman, Hrutkay, Hunt, Lane, Leggett, Longstreth, Manchin,
Martin, Miley, Moore, Paxton, Perry, Pethtel, Poling, Proudfoot, Schoen, Staton, Stemple, Stevens,
Sumner, Susman, Ron Thompson, Tucker and Wells.
Absent And Not Voting: Rick Thompson.
So, four fifths of the members present having not voted in the affirmative, the constitutional
rule was not dispensed with.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
following bills was then postponed:
Com. Sub. for S. B. 666, Relating to exemptions for certain insurance companies from
business franchise tax and corporation net income tax,
S. B. 159,Creating Consolidated Local Government Act,
And,
S. B. 467, Authorizing Director of Division of Protective Services assess, charge and collect
fees.
S. B. 428, Relating to Rehabilitation Environmental Action Plan; on third reading, coming
up in regular order, with an amendment pending and the further right to amend, was reported by the
Clerk.
On motion of Delegate Tabb, the bill was amended on page thirty-two, section three, after
line seven, by inserting a new subdivision, designated subdivision "(4)", to read as follows:
"(4) Assist county commissions and county sheriffs in establishing a voluntary litter reporting
programs, which shall utilize trained volunteers to report and collect information necessary to enable
county sheriffs to issue citations to persons violating the litter laws of this state. The scope of duty
of a volunteer participating in the litter reporting program may include: reporting the motor vehicle
registration plate number, the date, time and location of a person observed littering; collecting other
evidence as may be requested by the county sheriff, including taking photographs of a litter site;
providing testimony in court proceedings as to litter violations observed or evidence collected by the
volunteer; and providing other assistance in litter enforcement as may be requested by the county
sheriff, except that in no event may a volunteer participate in the direct apprehension or arrest of a
litter violator. The county sheriff with the assistance of the law-enforcement section of the Division
of Natural Resources, shall provide a training course for volunteers to instruct them in proper
reporting procedures and the collection of evidence, and may provide reporting forms for volunteers
to record their observations of litter violations. Upon completion of the course and approval from the county sheriff, a volunteer may begin participation in the program. Volunteers participating in
the program are responsible for providing their own vehicles, gasoline, cameras, cell phones and
other items they may use while participating in the program, and are responsible for other incidental
expenses they may incur in the course of participating in the program. The Commissioner of the
Division of Highways may cause appropriate signs to be placed along primary and secondary
highways to inform motorists of the volunteer litter reporting program;".
And,
Renumber the remaining subdivisions.
Delegates Walters, Longstreth, Caputo and Manchin moved to amend the bill on page
twenty-four, line sixteen, following "15A." by inserting the words "THE A. JAMES MANCHIN".
And,
On page twenty-seven, section one, line fourteen, following "the", by inserting the words
"A. James Manchin".
On the adoption of the amendment to the amendment, Delegate Manchin demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 645), 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: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the
amendment was adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 646),
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: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 428) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
following bills was then postponed:
Com. Sub. for S. B. 558, Relating to management and investment of public funds,
And,
Com . Sub. for S. B. 603, Relating to higher education.
S. B. 669, Providing sales tax exemption for high-technology services; on third reading,
coming up in regular order, with amendment pending, was reported by the Clerk.
An amendment recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §3-1-19, §3-1-20, §3-1-21, §3-1-21a, §3-1-24 and §3-1-25 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that §3-3-2 and §3-3-11 of said code be
amended and reenacted; that §3-4-10, §3-4-12 and §3-4-12a of said code be amended and reenacted;
that §3-4A-12, §3-4A-13 and §3-4A-13a of said code be amended and reenacted; that §3-5-7, §3-5-8,
§3-5-8a, §3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and §3-5-24 of said code
be amended and reenacted; that §3-6-4 and §3-6-4a of said code be amended and reenacted; and §3-
9-18 of said code be amended and reenacted; and that §3-10-6 of said code be amended and
reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-19. Ballot commissioners; selection; duties generally; vacancies.
In each county in the state, the clerk of the county commission while holding such office, and
two persons by him appointed by him or her, one from each of the two political parties which cast
the largest and second largest number of votes in the state at the last preceding general election, shall
constitute a board of ballot commissioners. of which board the said The clerk shall be chairman. It
shall be the duty of the clerk of said court to notify the chairman of the respective county executive
committees of such the two parties, at least five days before making such appointments, of the time and place of making the same, and if appointments. If at any time after such notice is given, and
before or on the day so fixed for making such appointments, the chairman of either of said each of
the committees shall designate, in writing, a member of such party as ballot commissioner. having
the qualifications of a voter, he Each designee shall be appointed if he or she meets the qualifications
of a voter. Ballot commissioners shall be appointed between the fifteenth and thirtieth days of
January in each year in which a general election is to be held, for a term of two years beginning on
the first day of February next ensuing. Provided, That in the year one thousand nine hundred sixty-
eight, such ballot commissioners shall be appointed between the first and the tenth days of February,
for a term beginning on the eleventh day of February of said year and ending on the thirty-first day
of January, one thousand nine hundred seventy. They shall perform the duties of such ballot
commissioners at all general, special and primary elections held in the county or any magisterial
district thereof during their term of office. A vacancy shall be filled in the same manner as an
original appointment, but immediate notice of a vacancy shall, where necessary, be deemed
compliance with the five-day notice provision.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall provide cards of general
information which will provide the date of the election and the hours during which polling places
will be open, instruction for mail-in registrants and first-time voters and voters' rights and
prohibitions against fraud and misrepresentation and cards of instruction for voters in preparing their
ballots and casting a provisional ballot as prescribed by the Secretary of State. They shall furnish
a sufficient number of cards to the commissioners of election at the same time they deliver the
ballots for the precinct.
(b) The commissioners of election shall post one instruction card in each voting booth giving
instructions to the voters on how to prepare the ballots for deposit in the ballot boxes and how to
obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other cards of general information
at places inside and outside of the voting place where voters pass or wait to vote. The commissioners shall also post the official write-in candidates in the same locations inside and outside
of the voting place.
(d) The ballot commissioners shall have printed, on a different color paper than the official
ballot, ten or more copies of sample ballots for each voting place for each election. Sample ballots
shall be furnished and posted with the cards of general information at each voting place.
(e) During the period of early in-person voting, the official designated to supervise and
conduct absentee voting clerk of the county commission shall post the cards of general information,
a list of official write-in candidates and sample ballots within the area where absentee voting is
conducted.
§3-1-21. Printing of official and sample ballots; number; packaging and delivery, correction
of ballots.
(a) The board of ballot commissioners for each county shall provide the ballots and sample
ballots necessary for conducting every election for public officers in which the voters of the county
participate.
(b) The persons required to provide the ballots necessary for conducting all other elections
are:
(1) The Secretary of State, for any statewide special election ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide special election ordered by the
county commission;
(3) The Board of Education, for any special levy or bond election ordered by the Board of
Education; or
(4) The municipal board of ballot commissioners, for any election conducted for or within
a municipality except an election in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those printed by the proper authorities as
specified in this section shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular official ballots printed shall
equal one and one-twentieth times the number of registered voters eligible to vote that ballot. The
circuit clerk of the county commission shall determine the number of absentee official ballots.
(d) The number of regular official ballots packaged for each precinct shall equal the number
of registered voters of the precinct. The remaining regular official ballots shall be packaged and
delivered to the circuit clerk of the county commission who shall retain them unopened until they
are required for an emergency. Each package of ballots shall be wrapped and sealed in a manner
which will immediately make apparent any attempt to open, alter or tamper with the ballots. Each
package of ballots for a precinct shall be clearly labeled in a manner which cannot be altered, with
the county name, the precinct number and the number of ballots contained in each package. If the
packaging material conceals the face of the ballot, a sample ballot identical to the official ballots
contained therein shall be securely attached to the outside of the package or, in the case of ballot
cards, the type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee voting in all voting systems shall
be delivered to the circuit clerk of the county commission of the appropriate county not later than
the forty-second day before the election. In counties where the clerk of the county commission is
responsible for conducting absentee voting, the circuit clerk shall transfer the absentee ballots to the
clerk of the county commission prior to the beginning of absentee voting. All official ballots in
paper ballot systems shall be delivered to the circuit clerk of the county commission of the
appropriate county not later than twenty-eight days before the election.
(f) Upon a finding of the board of ballot commissioners that an official ballot contains an
error which, in the opinion of the board, is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected either by the reprinting of the ballots or by the
use of stickers printed with the correction and of suitable size to be placed over the error without
covering any other portion of the ballot.
§3-1-21a. Vendors authorized to print ballots; eligibility; application and certification; denial,
suspension and revocation of authorization; appeal.
(a) The printing of ballots for any election to be held pursuant to the provisions of this
chapter shall be contracted for with a vendor authorized in accordance with the provisions of this
section.
(b) Any vendor authorized to do business in West Virginia and in good standing may apply
for a certificate of authorization to print ballots for elections in this state: Provided, That any
individual, partnership, association or corporation who does not qualify as a resident vendor pursuant
to the provisions of section thirty-seven-a, article three, chapter five-a of this code or who prints the
ballots in a state which prohibits that state or any of its political subdivisions from contracting with
West Virginia resident vendors for the printing of ballots or which prohibits the printing of ballots
outside of such state, is not eligible to obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections held pursuant to the provisions of
this chapter shall, prior to the execution of any contract for the printing of ballots with any state,
county, or municipal government, obtain a certificate of authorization to print ballots.
(2) A certificate of authorization may be obtained by application to the Secretary of State,
upon a form prescribed by the Secretary of State. which The form shall include a statement that all
printing, packaging and delivery specifications for ballots set forth in this chapter will be
substantially met, and that the vendor applying for certification is eligible in accordance with the
provisions of this section.
(3) Upon receipt of the completed application, the Secretary of State shall issue a certificate
of authorization to print ballots, which certificate shall remain in effect for two years from the date
of issuance and may be renewed upon application therefor: Provided, That the Secretary of State
may deny the application to issue or renew the certificate of authorization, or may suspend or revoke
the certificate of authorization upon a determination that the vendor has not substantially complied
with the printing, packaging and delivery specifications in the printing of ballots for any state, county
or municipal election, or that the vendor is not eligible or is no longer eligible to print ballots
pursuant to the provisions of this section. The Secretary of State shall give written notice of any such
determination by certified mail, return receipt requested, to the vendor setting forth the reason for
the suspension, revocation or the denial of the application or the denial of the renewal thereof. The
applicant may, within sixty days of the receipt of such denial, file a written appeal with the State
Election Commission. The State Election Commission shall promulgate rules establishing a hearing
process for such appeals.
(d) On or before the second Monday of January of each year, the Secretary of State shall
provide a list of all vendors authorized to print ballots for state, county and municipal elections to
the clerk of each circuit court county commission of this state.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the clerk of the county commission to appoint one or more of the
commissioners of election or poll clerks at each precinct of the county to attend at the offices office
of the clerks clerk of the circuit court and county commission as the case may be, at least one day
before each election to receive the ballots, ballot boxes, poll books, registration records and forms
and all other supplies and materials for conducting the election at the respective precincts. The
clerks clerk shall take a receipt for the respective materials delivered to the commissioners of
election or poll clerks and shall file the receipt in their respective offices his or her office. It shall
be the duty of the commissioners or poll clerks to receive the supplies and materials from the
respective clerks clerk and to deliver them with the seal of all sealed packages unbroken at the
election precinct in time to open the election.
(b) The commissioners or poll clerks, if they perform the messenger services, shall receive
the per diem and mileage rate prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals unbroken. For general and special
elections the delivered ballots shall not be in excess of one and one-twentieth times the number of
registered voters in the precinct. For primary elections the ballots for each party shall be in a
separately sealed package containing not more than one and one-twentieth times the number of
registered voters of each party in the election precinct.
(d) For primary elections one copy of the poll books, including the written or printed forms
for oaths of commissioners of election and poll clerks, shall be supplied at each voting precinct for
each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct for which a receiving and a
counting board of election commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election or poll clerk fails to appear at the offices of the clerks
clerk of the county commission and circuit courts by the close of the clerk's office on the day prior
to any election, the board of ballot commissioners, the chairman or the circuit clerk of the county
commission shall forthwith dispatch a special messenger to the commissioners of election of each
respective precinct with the ballots, registration records, ballot boxes, poll books and other supplies
for the precinct. The messenger, if not a county employee, shall be allowed five dollars for this
service. The messenger shall also receive mileage up to the rate of reimbursement authorized by the
travel management rule of the Department of Administration for each mile necessarily traveled in
the performance of his or her services. The messenger shall promptly report to the clerks of the
circuit court and clerk of county commission respectively, and file with the clerks clerk the receipts
of the person to whom he or she delivered the ballots and other supplies and his or her affidavit
stating when and to whom he or she delivered them.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political
division in which the election is held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a political subdivision or territory
other than a municipality, or within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county commission; Provided, That if the clerk
of the county commission and the clerk of the circuit court jointly petition the county commission
setting forth their agreement that the clerk of the circuit court should continue to supervise and
conduct the absentee voting, the county commission shall designate the clerk of the circuit court to
supervise and conduct the absentee voting or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to
conduct absentee voting, for any election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms 'clerk' or 'circuit clerk' 'clerk of the county commission' or 'official designated to supervise and conduct absentee voting' used elsewhere
in this article means municipal recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general
or special election is to make application in writing in the proper form to the proper official as
follows:
(1) The completed application is to be on a form prescribed by the Secretary of State and is
to contain the name, date of birth and political affiliation of the voter, residence address within the
county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the
absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone
number of the attending physician, the signature of the voter to a declaration made under the
penalties for false swearing as provided in section three, article nine of this chapter that the
statements and declarations contained in the application are true, any additional information which
the voter is required to supply, any affidavit which may be required and an indication as to whether
it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under the provisions of 42 U. S. C.
§1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee ballot form issued under
authority of that act; or
(3) For any person unable to obtain the official form for absentee balloting at a reasonable
time before the deadline for an application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out by the voter, provided all
information required to meet the provisions of this article is set forth and the application is signed
by the voter requesting the ballot.
§3-3-11. Preparation, number and handling of absent voters' ballots.
(a) Absent voters' ballots are to be in all respects like other ballots. Not less than seventy
days before the date on which any primary, general or special election is to be held, unless a lesser
number of days is provided for in any specific election law in which case the lesser number of days
applies, the clerks of the circuit courts county commissions of the several counties shall estimate and determine the number of absent voters' ballots of all kinds which will be required in their respective
counties for that election. The ballots for the election of all officers, or the ratification, acceptance
or rejection of any measure, proposition or other public question to be voted on by the voters, are to
be prepared and printed under the direction of the board of ballot commissioners constituted as
provided in article one of this chapter. The several county boards of ballot commissioners shall
prepare and have printed, in the number they may determine, absent voters' ballots that are to be
printed under their directions as provided in this chapter and those ballots are to be delivered to the
clerk of the circuit court county commission of the county not less than forty-two days before the day
of the election at which they are to be used. In counties where the clerk of the county commission
is responsible for conducting absentee voting, the circuit clerk shall transfer the absentee ballots to
the clerk of the county commission prior to the beginning of absentee voting.
(b) The clerk of the county commission official designated to supervise and conduct absentee
voting shall be primarily responsible for the mailing, receiving, delivering and otherwise handling
of all absent voters' ballots. He or she shall keep a record, as may be prescribed by the Secretary of
State, of all ballots so delivered for the purpose of absentee voting, as well as all ballots, if any,
marked before him or her and shall deliver to the commissioner of election a certificate stating the
number of ballots delivered or mailed to absent voters and those marked before him or her, if any,
and the names of the voters to whom those ballots have been delivered or mailed or by whom they
have been marked, if marked before him or her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy changes; procedure and
requirements.
(a) The ballot commissioners of any county in which voting machines are to be used in any
election shall cause to be printed for use in the election the ballot labels for the voting machines and
paper ballots for absentee voting, voting by persons unable to use the voting machine and provisional
ballots or if an electronic voting system or direct recording election equipment is to be used in an
election, the ballot commissioners shall comply with requirements of section eleven, article four-a
of this chapter. The labels shall be clearly printed in black ink on clear white material in a size that will fit the ballot frames. The paper ballots shall be printed in compliance with the provisions of this
chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the printing and arrangement of
names of the candidates for each office indicated must be placed on the ballot for the primary
election as nearly as possible according to the provisions of sections thirteen and thirteen-a, article
five of this chapter and for the general election according to the provisions of section two, article six
of this chapter: Provided, That the staggering of the names of candidates in multicandidate races and
the instructions to straight ticket voters prescribed by section two, article six of this chapter shall
appear on paper ballots but shall not appear on ballot labels for voting machines which mechanically
control crossover voting.
(c) Each question to be voted on must be placed at the end of the ballot and must be printed
according to the provisions of the laws and regulations rules governing the question.
(d) The ballot labels printed must total in number one and one-half times the total number
of corresponding voting machines to be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the circuit court county commission at least
twenty-eight days prior to the day of the election. The clerk of the circuit court county commission
shall determine the number of paper ballots needed for absentee voting and to supply the precincts
for provisional ballots and ballots to be cast by persons unable to use the voting machine. All
required paper ballots shall be delivered to the clerk of the circuit court county commission at least
forty-two days prior to the day of the election.
(e) When the ballot labels and absentee ballots are delivered, the clerk of the circuit court
county commission shall examine them for accuracy, assure that the appropriate ballots and ballot
labels are designated for each voting precinct and deliver the ballot labels to the clerk of the county
commission who shall insert one set in each machine prior to the inspection of the machines as
prescribed in section twelve of this article. The remainder of the ballot labels for each machine shall
be retained by the clerk of the county commission for use in an emergency.
(f) In addition to all other equipment and supplies required by the provisions of this article,
the ballot commissioners shall cause to be printed a supply of instruction cards, sample ballots and facsimile diagrams of the voting machine ballot adequate for the orderly conduct of the election in
each precinct in their county. In addition, they shall provide appropriate facilities for the reception
and safekeeping of the ballots of absent voters and of challenged voters and of the 'independent'
voters who shall, in primary elections, cast their votes on nonpartisan candidates and public
questions submitted to the voters.
§3-4-12. Inspection of machines; duties of county commission, ballot commissioners and
election commissioners; keys and records relating to machines.
When the clerk of the county commission has completed the preparation of the voting
machines, as provided in the next preceding section eleven of this article, and not later than seven
days before the day of the election, he or she shall notify the members of the county commission and
the ballot commissioners that the machines are ready for use. Thereupon the members of the county
commission and the ballot commissioners shall convene at the office of the clerk, or at such other
place wherein the voting machines are stored, not later than five days before the day of the election,
and shall examine the machines to determine whether the requirements of this article have been met.
Any candidate, and one representative of each political party having candidates to be voted on at the
election, may be present during such the examination. If the machines are found to be in proper
order, the members of the county commission and the ballot commissioners shall endorse their
approval in the book in which the clerk entered the numbers of the machines opposite the numbers
of the precincts. The clerk shall then deliver the keys to the voting machines to the ballot
commissioners who shall give a receipt for the keys, which receipt shall contain identification of
such keys. Not later than one day before the election the election commissioner of each precinct,
who shall have been previously designated by the ballot commissioners, shall attend at the office of
the clerks of the circuit and clerk of the county commissions of such county commission to receive
the key or keys to the device covering the registering counters and such other keys as may be
necessary for the operation of the machine in registering votes, and to receive the other necessary
election records, books and supplies required by law. Such The election commissioners shall receive
the per diem mileage rate prescribed by law for this service. Such The election commissioners shall
give the ballot commissioners a receipt for such the keys, records, books and supplies. and such The receipt shall contain identification of such the keys. The master key and all other keys shall remain
in the possession of the clerk of the county commission.
The term 'assistance in voting,' as used in this section, means assistance in physically
marking the official ballot for a voter, or reading or directing the voter's attention to any part of the
official ballot, or physically operating the voting machine.
§3-4-12a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at the offices of the clerks clerk of
the county commission and circuit court by the close of the clerks' offices clerk's office on the day
prior to any election, the board of ballot commissioners, the chairman thereof shall cause all
necessary election records, books and supplies to be delivered by special messenger in the same
manner and under the same terms and conditions as is provided for the dispatch of the special
messenger under the provisions of section twenty-five, article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-12. Ballot label arrangement in vote recording devices; sealing of devices; record of
identifying numbers.
In counties using electronic voting systems utilizing vote recording devices:
(1) The number of ballot labels printed, where applicable, are to equal one and one-half times
the total number of corresponding vote recording devices to be used in the election. All labels are
to be delivered to the clerk of the county commission at least thirty-five days prior to the election.
The circuit clerk shall immediately examine the ballot labels for accuracy and assure that the
appropriate ballot labels are designated for each voting precinct.
(2) The total number of ballot cards printed and the number packaged for each precinct and
the requirements for ballot colors and packaging are to conform as nearly as possible to the
requirements for paper ballots. Official ballot cards printed and packaged for the various precincts
are to be delivered to the clerk of the circuit court county commission at least twenty-eight days prior
to the election.
(3) The necessary number of ballot cards, ballot labels, sample ballots, and other supplies
necessary for absentee voting are to be delivered to the clerk of the county commission at least forty-two days prior to the election. The clerk shall immediately check the ballot labels to assure
their accuracy and shall place them in vote recording devices which are clearly designated for the
proper district or party, or both, for the purpose of absentee voting.
(4) When the ballot labels are delivered to the clerk of the county commission, the clerk shall
place them in the vote recording devices in the proper order. The clerk of the county commission
shall retain the remainder of the ballot labels for each machine for use in an emergency.
(5) The clerk of the county commission shall then seal the vote recording devices so as to
prevent tampering with ballot labels, and enter in an appropriate book, opposite the number of each
precinct, the identifying or distinguishing number of the specific vote recording device or devices
to be used in that precinct.
§3-4A-13. Inspection of ballots and vote recording devices; duties of county commission,
ballot commissioners and election commissioners; records relating to ballots
and vote recording devices; receipt of election materials by ballot
commissioners.
When the clerk of the county commission has completed the preparation of the ballots and
vote recording devices as provided in sections eleven, eleven-a and twelve of this article and as
provided in section twenty-one, article one of this chapter, and not later than seven days before the
day of the election, he or she shall notify the members of the county commission and the ballot
commissioners that the ballots and devices, where applicable, are ready for use. Thereupon the
members of the county commission and the ballot commissioners shall convene at the office of the
clerk or at such other place wherein the vote recording devices, where applicable, and ballots are
stored, not later than five days before the day of the election, and shall inspect the devices and the
ballots to determine whether the requirements of this article have been met. Notice of the place and
time of such inspection shall be published, no less than three days prior thereto, as a Class I-0 legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and
the publication area for such the publication shall be the county involved. Any candidate and one
representative of each political party on the ballot may be present during such examination. If the
devices, where applicable, and ballots are found to be in proper order, the members of the county commission and the ballot commissioners shall, where applicable, endorse their approval in the book
in which the clerk entered the numbers of the devices opposite the numbers of the precincts. The
vote recording devices and the ballots shall then be secured in double lock rooms. The county clerk
and the president or president pro tempore of the county commission shall each have a key. The
rooms shall be unlocked only in their presence and only for the removal of the devices, where
applicable, and the ballots for transportation to the polls. Upon such removal of the devices and
ballots, the county clerk and president or president pro tempore of the county commission shall
certify in writing signed by them that the devices, where applicable, and packages of ballots were
found to be sealed when removed for transportation to the polls.
Not later than one day before the election the election commissioner of each precinct who
shall have been previously designated by the ballot commissioners, shall attend at the office of the
clerks of the circuit court and clerk of the county commission of such county to receive the necessary
election records, books and supplies required by law. Such The election commissioners shall receive
the per diem mileage rate prescribed by law for this service. Such The election commissioners shall
give the ballot commissioners a sequentially numbered written receipt, on a printed form, provided
by the clerk of the county commission, for such records, books and supplies. Such The receipt shall
be prepared in duplicate. One copy of the receipt shall remain with the clerk of the county
commission and one copy shall be delivered to the president or president pro tempore of the county
commission.
§3-4A-13a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at the offices of the clerks clerk of
the county commission and circuit court by the close of the clerks' offices clerk's office on the day
prior to any election, the board of ballot commissioners, the chairman thereof or the circuit clerk of
the county commission shall cause all necessary election records, books and supplies to be delivered
by special messenger in the same manner and under the same terms and conditions as is provided
for the dispatch of the special messenger under the provisions of section twenty-five, article one of
this chapter.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements; withdrawal of candidates when
section applicable.
Any person who is eligible and seeks to hold an office or political party position to be filled
by election in any primary or general election held under the provisions of this chapter shall file a
certificate of announcement declaring as a candidate for the nomination or election to the office.
(a) The certificate of announcement shall be filed as follows:
(1) With the Secretary of State, if it be an office or political position to be filled by the voters
of more than one county;
(2) With the clerk of the circuit court county commission, if it be for an office to be filled by
the voters of a single county or of a subdivision less than a county;
(3) With the recorder or city clerk if it be for an office to be filled by the voters of a
municipality.
The certificate of announcement shall be filed with the proper officer not earlier than the
second Monday in January next preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and must be received before midnight,
eastern standard time, of that day or, if mailed, shall be postmarked by the United States Postal
Service before that hour.
(b) The certificate of announcement shall be in a form prescribed by the Secretary of State
on which the candidate shall make a sworn statement before a notary public or other officer
authorized to give oaths, containing the following information:
(1) The date of the election in which the candidate seeks to appear on the ballot;
(2) The name of the office sought; the district, if any; and the division, if any;
(3) The legal name of the candidate, and the exact name the candidate desires to appear on
the ballot, subject to limitations prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate is a legally qualified voter of
that county; and the magisterial district of residence for candidates elected from magisterial districts
or under magisterial district limitations;
(5) The specific address designating the location at which the candidate resides at the time
of filing, including number and street or rural route and box number, and city, state and zip code;
(6) For partisan elections, the name of the candidate's political party, and a statement that the
candidate is a member of and affiliated with that political party as is evidenced by the candidate's
current registration as a voter affiliated with that party, and that the candidate has not been registered
as a voter affiliated with any other political party for a period of sixty days before the date of filing
the announcement;
(7) For candidates for delegate to national convention, the name of the presidential candidate
to be listed on the ballot as the preference of the candidate on the first convention ballot; or, a
statement that the candidate prefers to remain 'uncommitted';
(8) A statement that the person filing the certificate of announcement is a candidate for the
office in good faith;
(9) The words 'subscribed and sworn to before me this ______ day of _____________, 19
20____,' and a space for the signature of the officer giving the oath.
The Secretary of State or the board of ballot commissioners, as the case may be, may refuse
to certify the candidacy or remove the certification of the candidacy upon receipt of a certified copy
of the voter's registration record of the candidate evidencing that the candidate was registered as a
voter in a party other than the one named in the certificate of announcement during the sixty days
immediately preceding the filing of the certificate: Provided, That unless a signed formal complaint
of violation of this section and the certified copy of the voter's registration record of the candidate
be filed with the officer receiving that candidate's certificate of announcement no later than ten days
following the close of the filing period, the candidate shall not be refused certification for this reason.
(c) The certificate of announcement shall be subscribed and sworn to by the candidate before
some officer qualified to administer oaths, who shall certify the same. Any person who knowingly
provides false information on the certificate is guilty of false swearing and shall be punished as set
forth in section three, article nine of this chapter.
(d) Any candidate for delegate to a national convention may change his or her statement of
presidential preference by notifying the Secretary of State by letter received by the Secretary of State no later than the third Tuesday following the close of candidate filing. When the rules of the
political party allow each presidential candidate to approve or reject candidates for delegate to
convention who may appear on the ballot as committed to that presidential candidate, the presidential
candidate or the candidate's committee on his or her behalf may file a list of approved or rejected
candidates for delegate, and the Secretary of State shall list as 'uncommitted' any candidate for
delegate who is disapproved by the presidential candidate.
(e) No person shall be a candidate for more than one office or office division at any election:
Provided, That a candidate for an office may also be a candidate for president of the United States,
for membership on a political party executive committee or for delegate to a political party national
convention. Notwithstanding the provisions of this section, nothing shall prohibit a candidate from
jointly running for or holding the offices of county clerk and circuit clerk in those counties which
operate a joint clerkship system.
(f) Any candidate who files a certificate of announcement for more than one office or division
and does not withdraw, as provided by section eleven, article five of this chapter, from all but one
office prior to the close of the filing period shall not be certified by the Secretary of State or placed
on the ballot for any office by the board of ballot commissioners.
The provisions of this section enacted during the regular session of the Legislature in the year
one thousand nine hundred ninety-one shall apply to the primary election held in the year one
thousand nine hundred ninety-two and every primary election held thereafter. The provisions of this
section enacted during the regular session of the Legislature in the year one thousand nine hundred
ninety-eight shall apply to the primary election held in the year two thousand and every primary
election held thereafter.
§3-5-8. Filing fees and their disposition.
Every person who becomes a candidate for nomination for or election to office in any primary
election shall, at the time of filing the certificate of announcement as required in this article, pay a
filing fee as follows:
(a) A candidate for president of the United States, for vice president of the United States, for
United States Senator, for member of the United States House of Representatives, for Governor and for all other state elective offices shall pay a fee equivalent to one percent of the annual salary of the
office for which the candidate announces: Provided, That the filing fee for any candidate for
president or vice president of the United States shall not exceed two thousand five hundred dollars
commencing with the two thousand four filing period;
(b) A candidate for the office of judge of a circuit court and judge of a family court shall pay
a fee equivalent to one percent of the total annual salary of the office for which the candidate
announces;
(c) A candidate for member of the House of Delegates shall pay a fee of one-half percent of
the total annual salary of the office and a candidate for State Senator shall pay a fee of one percent
of the total annual salary of the office;
(d) A candidate for sheriff, prosecuting attorney, circuit clerk, county clerk, assessor, member
of the county commission and magistrate shall pay a fee equivalent to one percent of the annual
salary, excluding any additional compensation or commission of the office for which the candidate
announces. A candidate for county board of education shall pay a fee of twenty-five dollars. A
candidate for any other county office shall pay a fee of ten dollars;
(e) Delegates to the national convention of any political party shall pay the following filing
fees:
A candidate for delegate-at-large shall pay a fee of twenty dollars; and a candidate for
delegate from a congressional district shall pay a fee of ten dollars;
(f) Candidates for members of political executive committees and other political committees
shall pay the following filing fees:
A candidate for member of a state executive committee of any political party shall pay a fee
of twenty dollars; a candidate for member of a county executive committee of any political party
shall pay a fee of ten dollars; and a candidate for member of a congressional, senatorial or delegate
district committee of any political party shall pay a fee of five dollars.
Candidates filing for an office to be filled by the voters of one county shall pay the filing fee
to the clerk of the circuit county court commission and candidates filing for an office to be filled by
the voters of more than one county shall pay the filing fee to the Secretary of State at the time of filing their certificates of announcement and no certificate of announcement shall be received until
the filing fee is paid.
All moneys received by such the clerk from such the fees shall be credited to the general
county fund. Moneys received by the Secretary of State from fees paid by candidates for offices to
be filled by all the voters of the state shall be deposited in a special fund for that purpose and shall
be apportioned and paid by him or her to the several counties on the basis of population and that
received from candidates from a district or judicial circuit of more than one county shall be
apportioned to the counties comprising the district or judicial circuit in like manner. When such
moneys are received by sheriffs, it shall be credited to the general county fund.
§3-5-8a. Nominating petitions as alternatives to filing fees; oath of impecuniosity required;
petition in lieu of payment of filing fee.
A candidate seeking nomination to any office who is unable to pay the filing fee may qualify
through the following petition process in lieu of payment of the filing fee.
The candidate shall file an oath with the appropriate office required under section eight of
this article stating that he or she is unable to pay the filing fee due to a lack of financial resources.
Such oath shall be filed not earlier than the second Monday in January next preceding the primary
election day.
Upon receipt of the written oath the receiving officer shall provide the candidate with in-lieu-
of-filing-fee petition forms and instructions on gathering the required signatures. The number of
required signatures shall be four qualified voters for each whole dollar of the filing fee: Provided,
That the filing fee shall be waived, in whole and not in part. Only signatures of voters registered in
the county, district or other political division represented by the office sought may be solicited.
Solicitors of signatures shall also be residents of the county, district or other geographical entity
represented by the office sought: Provided, however, That for offices to be filled by the voters of
more than one county, separate petition forms shall be used for the signatures of qualified voters
from each county.
No qualified voter forfeits his or her opportunity to vote in the primary election by signing
an in-lieu-of-filing-fee petition.
The candidate may submit a greater number of signatures to allow for subsequent losses due
to invalidity of some signatures. The county clerk of the county commission may not be required to
determine the validity of a greater number of signatures than that required by this section.
Signatures obtained on an in-lieu-of-filing-fee petition shall not be counted toward the
number of voters required to sign a nomination certificate in accordance with section twenty-three
of this article.
The candidate shall file all in-lieu-of-filing-fee petitions with the required number of valid
signatures with the county clerk of the county commission or Secretary of State, as the case may be,
not later than the last date required by law for filing declarations of candidacies and payment of the
filing fee.
The oath and forms required by this section shall be prescribed by the Secretary of State.
§3-5-9. Certification and posting of candidacies.
By the eighty-fourth day next preceding the day fixed for the primary election, the Secretary
of State shall arrange the names of all candidates, who have filed announcements with him or her,
as provided in this article, and who are entitled to have their names printed on any political party
ballot, in accordance with the provisions of this chapter, and shall forthwith certify the same under
his or her name and the lesser seal of the state, and file the same in his or her office.
Such The certificate of candidates shall show: (1) The name and residence of each candidate;
(2) the office for which he or she is a candidate; (3) the name of the political party of which he or
she is a candidate; (4) upon what ballot his or her name is to be printed; and (5) in the case of a
candidate for delegate to the national convention of any political party, the name of the person the
candidate prefers as the presidential nominee of his or her party, or if he or she has no preference,
the word 'uncommitted'.
The Secretary of State shall post a duplicate of such the certificate in a conspicuous place in
his or her office and keep same posted until after the primary election.
Immediately upon completion of such certification, the Secretary of State shall ascertain
therefrom the candidates whose names are to appear on the primary election ballots in the several
counties of the state and shall certify to the clerk of the circuit court county commission in each county the certificate information relating to each of the candidates whose names are to appear on
the ballot in such that county. He or she shall transmit such the certificate to the several clerks by
registered or certified mail, but, in emergency cases, he may resort to other reliable and speedy
means of transmission which may be available so that such certificates shall reach the several clerks
by the seventieth day next preceding such primary election day.
The provisions of this section shall apply to the primary election held in the year one
thousand nine hundred eighty-six and every primary election held thereafter.
§3-5-11. Withdrawals; filling vacancies in candidacy; publication.
(a) A candidate who has filed a certificate of announcement and wishes to withdraw and
decline to stand as a candidate for the office shall file a signed and notarized statement of withdrawal
with the same officer with whom the certificate of announcement was filed. If such the statement
of withdrawal is received not later than the third Tuesday following the close of candidate filing,
the name of a candidate who files that statement of withdrawal may not be printed on the ballot. No
candidate who files a statement of withdrawal after that time may have his or her name removed
from the ballot.
(b) Upon request of the candidate's family, the board of ballot commissioners may remove
the name of a candidate who dies before the ballots are printed. If a candidate dies after the ballots
are printed but before the election, the clerk of the circuit court county commission shall give a
written notice which shall be posted with the sample ballot at each precinct with the county to the
following effect: 'To the voter: (name) of (residence), a candidate for (office) is deceased.'
(c) If after the time is closed for announcing as a candidate there is a vacancy on the ballot
caused by failure of any person of a party to file for each available seat of each available office, the
executive committee of the party for the political division within which such candidate was to be
voted for, or its chair if the committee fails to act, may fill the vacancy and certify the candidate
named to the appropriate filing officer. Certification of the appointment by the executive committee
or its chair, the candidate's certificate of announcement, and the filing fee must be received by the
appropriate filing officer as follows: For an appointment by an executive committee, no later than
the second Friday following the close of filing, for an appointment by its chair, no later than the third Tuesday following the close of filing. A candidate appointed to fill a vacancy on the ballot under
this subsection shall have his or her name printed on the primary ballot for that party.
§3-5-12. Official and sample ballots; color.
There shall be a separate ballot printed on different colored paper, for each political party
participating in the primary election, and the ballot of no two parties shall may be of the same color
or tint. The Secretary of State shall select and determine the color of the paper of the ballot of each
of the parties, and shall notify the clerk of the circuit court county commission of each county
thereof, at the time he or she certifies the names of the candidates of the various parties to said the
clerk, as herein provided.
A different color of paper shall be selected and designated by the Secretary of State for each
party. and the The sample ballots of each party shall be of a different color than the official ballot
and of a different color from one another. and there There shall be printed across the face of such
sample ballot in large letters the words 'sample ballot'. and no No sample ballot shall be voted or
counted in any election.
§3-5-13a. Order of offices and candidates on the ballot; uniform drawing date.
(a) The order of offices for state and county elections on all ballots within the state shall be
as prescribed herein. When the office does not appear on the ballot in an election, then it shall be
omitted from the sequence. When an unexpired term for an office appears on the ballot along with
a full term, the unexpired term shall appear immediately below the full term.
NATIONAL TICKET: President (and Vice President in the general election), United States
Senator, member of the United States House of Representatives
STATE TICKET: Governor, Secretary of State, Auditor, Treasurer, Commissioner of
Agriculture, Attorney General, Justice of the Supreme Court of Appeals, State Senator, member of
the House of Delegates, circuit judge in multicounty districts, family court judge in multicounty
districts, any other multicounty office, state executive committee
COUNTY TICKET: Circuit judge in single-county districts, family court judge in single-
county districts, clerk of the circuit court, county commissioner, clerk of the county commission,
prosecuting attorney, sheriff, assessor, magistrate, surveyor, congressional district executive committee, senatorial district executive committee in multicounty districts, delegate district
executive committee in multicounty districts
NATIONAL CONVENTION: Delegate to the national convention -- at-large, delegate to
the national convention -- congressional district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one person has filed a certificate of
announcement, the arrangement of names for all offices shall be determined by lot according to the
following provisions:
(1) On the fourth Tuesday following the close of the candidate filing, beginning at nine
o'clock a. m., a drawing by lot shall be conducted in the office of the clerk of the circuit court county
commission in each county. Notice of the drawing shall be given on the form for the certificate of
announcement and no further notice shall be required. The clerk of the circuit court county
commission shall superintend and conduct the drawing and the method of conducting the drawing
shall be prescribed by the Secretary of State.
(2) Except as provided herein, the position of each candidate within each office division shall
be determined by the position drawn for that candidate individually: Provided, That if fewer
candidates file for an office division than the total number to be nominated or elected, the vacant
positions shall appear following the names of all candidates for the office.
(3) Candidates for delegate to national convention who have filed a commitment to a
candidate for president shall be listed alphabetically within the group of candidates committed to the
same candidate for president and uncommitted candidates shall be listed alphabetically in an
uncommitted category. The position of each group of committed candidates and uncommitted
candidates shall be determined by lot by drawing the names of the presidential candidates and for
an uncommitted category.
(4) A candidate or the candidate's representative may attend the drawings.
§3-5-18. Disposition of certificates of results.
The certificates of the board of canvassers made pursuant to the preceding section shall be
by them disposed of as follows: One of the certificates showing the votes received by each candidate of each party for each office to be filled by the voters of a political division greater than a county,
including members of the State Executive Committee, shall be filed with the Secretary of State, and
by him preserved in his or her office, and a copy thereof filed in the office of the clerk of the circuit
court county commission of the county of such board, to be preserved by such the clerk, and which
shall be open to public inspection; one certificate showing the votes received by each candidate of
each party for each office to be filled by the voters of the county or magisterial district within such
county, including members of the county executive committee, shall be filed with the clerk of the
circuit court county commission, and by him preserved in his or her office. If requested, the board
of canvassers shall furnish to the county chairman of each political party a certificate showing the
number of votes received by each of the candidates of such party in the county or any magisterial
district therein.
The Secretary of State shall certify, under the seal of the state, to the clerk of the circuit court
county commission of each county in which a candidate is to be voted for, the name of the candidate
of each political party receiving the highest number of votes in the political division in which he or
she is a candidate, and who is entitled to have his or her name placed on the official ballot in the
general election as the nominee of the party for such office. The Secretary of State shall also certify
in the same manner the names of all candidates nominated by political parties or by groups of
citizens, not constituting a political party, in any manner provided for making such nominations in
this chapter.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of candidates for office nominated at
the primary election or by appointment under the provisions of section eleven of this article, the
vacancies may be filled, subject to the following requirements and limitations:
(1) Each appointment made under this section shall be made by the executive committee of
the political party for the political division in which the vacancy occurs: Provided, That if the
executive committee holds a duly called meeting in accordance with section nine, article one of this
chapter but fails to make an appointment or fails to certify the appointment of the candidate to the proper filing officer within the time required, the chairperson of the executive committee may make
the appointment not later than two days following the deadline for the executive committee.
(2) Each appointment made under this section is complete only upon the receipt by the proper
filing officer of the certificate of appointment by the executive committee, or its chairperson, as the
case may be, the certificate of announcement of the candidate as prescribed in section seven of this
article and, except for appointments made under subdivision (4), (5), (6) or (7) of this subsection,
the filing fee or waiver of fee as prescribed in section eight or eight-a of this article. The proper
filing officer is the officer with whom the original certificate of nomination is regularly filed for that
office.
(3) If a vacancy in nomination is caused by the failure of a candidate to file for an office, or
by withdrawal of a candidate no later than the third Tuesday following the close of candidate filing
pursuant to the provisions of section eleven of this article, a nominee may be appointed by the
executive committee and certified to the proper filing officer no later than the Thursday preceding
the primary election.
(4) If a vacancy in nomination is caused by the disqualification of a candidate and the
vacancy occurs not later than eighty-four days before the general election, a nominee may be
appointed by the executive committee and certified to the proper filing officer not later than seventy-
eight days before the general election. A candidate may be determined ineligible if a written request
is made by an individual with information to show a candidate's ineligibility to the State Election
Commission no later than ninety-five days before the general election explaining grounds why a
candidate is not eligible to be placed on the general election ballot or not eligible to hold the office,
if elected. The State Election Commission shall review the reasons for the request. If the
commission finds the circumstances warrant the disqualification of the candidate, the Commission
may authorize appointment by the executive committee to fill the vacancy. Upon receipt of the
authorization a nominee may be appointed by the executive committee and certified to the proper
filing officer no later than seventy-eight days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of the candidate and if the vacancy
occurs not later than eighty-four days before the general election, a nominee may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days
before the general election.
(6) If a vacancy in nomination is caused by the withdrawal of the candidate no later than
ninety-eight days before the general election due to extenuating personal circumstances which will
prevent the candidate from serving in the office if elected and if the candidate or the chairperson of
the executive committee for the political division applies in writing to the State Election
Commission no later than ninety-five days before the general election for permission to remove the
candidate's name from the general election ballot, the State Election Commission shall review the
reasons for the request. If the Commission finds the circumstances warrant the withdrawal of the
candidate, the Commission shall authorize appointment by the executive committee to fill the
vacancy. Upon receipt of the authorization, a nominee may be appointed by the executive committee
and certified to the proper filing officer no later than seventy-eight days before the general election.
(7) If a vacancy in nomination is caused by the death of the candidate occurring no later than
twenty-five days before the general election, a nominee may be appointed by the executive
committee and certified to the proper filing officer no later than twenty-one days following the date
of death or no later than twenty-two days before the general election, whichever date occurs first.
(b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a
partisan office or position other than political party executive committee, which creates an unexpired
term for a position which would not otherwise appear on the ballot in the general election, and the
vacancy occurs after the close of candidate filing for the primary election but not later than
eighty-four days before the general election, a nominee of each political party may be appointed by
the executive committee and certified to the proper filing officer no later than seventy-eight days
before the general election. Appointments shall be filed in the same manner as provided in
subsection (a) of this section, except that the filing fee shall be paid before the appointment is
complete.
(c) When a vacancy occurs in the board of education after the close of candidate filing for
the primary election but not later than eighty-four days before the general election, a special
candidate filing period shall be established. Candidates seeking election to any unexpired term for board of education shall file a certificate of announcement and pay the filing fee to the clerk of the
circuit court county commission no earlier than the first Monday in August and no later than
seventy-seven days before the general election.
§3-5-23. Certificate nominations; requirements and control; penalties.
(a) Groups of citizens having no party organization may nominate candidates for public office
otherwise than by conventions or primary elections. In such the case, the candidate or candidates,
jointly or severally, shall file a declaration with the Secretary of State if the office is to be filled by
the voters of more than one county, or with the clerk of the circuit court county commission of the
county if the office is to be filled by the voters of one county or political subdivision thereof; such
the declaration to be filed at least thirty days prior to the time of filing the certificate provided by
section twenty-four of this article: Provided, That the deadline for filing the certificate for persons
seeking ballot access as a candidate for the office of president or vice president shall be filed not later
than the first day of August preceding the general election. At the time of filing of such the
declaration each candidate shall pay the filing fee required by law, and if such the declaration is not
so filed or the filing fee so paid, the certificate shall not be received by the Secretary of State, or clerk
of the circuit court county commission, as the case may be.
(b) The person or persons soliciting or canvassing signatures of duly qualified voters on such
the certificate or certificates, may solicit or canvass duly registered voters residing within the county,
district or other political division represented by the office sought, but must first obtain from the
clerk of the county commission credentials which must be exhibited to each voter canvassed or
solicited, which credentials may be in the following form or effect:
State of West Virginia, County of ................., ss:
This certifies that ..............................., whose post-office address is ..............................., the
holder of this credential is hereby authorized to solicit and canvass duly registered voters residing
in .................. (here place the county, district or other political division represented by the office
sought) to sign a certificate purporting to nominate ............................ (here place name of candidate
heading list on certificate) for the office of .......................... and others, at the general election to be
held on ..................., 20....
Given under my hand and the seal of my office this ............... day of ........................., 20......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application made as herein provided, shall
issue such credentials and shall keep a record thereof.
(c) The certificate shall be personally signed by duly registered voters, in their own proper
handwriting or by their marks duly witnessed, who must be residents within the county, district or
other political division represented by the office sought wherein such the canvass or solicitation is
made by the person or persons duly authorized. Such The signatures need not all be on one
certificate. The number of such signatures shall be equal to not less than two percent of the entire
vote cast at the last preceding general election for the office in the state, district, county or other
political division for which the nomination is to be made, but in no event shall the number be less
than twenty-five. The number of such signatures shall be equal to not less than two percent of the
entire vote cast at the last preceding general election for any statewide, congressional or presidential
candidate, but in no event shall the number be less than twenty-five. Where two or more
nominations may be made for the same office, the total of the votes cast at the last preceding general
election for the candidates receiving the highest number of votes on each ticket for such the office
shall constitute the entire vote. No signature on such a certificate shall be counted unless it be that
of a duly registered voter of the county, district or other political division represented by the office
sought wherein such the certificate was presented. It shall be the duty of those soliciting signatures
to read to each voter whose signature is solicited the statement written on the certificate which gives
notice that no person signing such certificate shall vote at any primary election to be held to
nominate candidates for office to be voted for at the election to be held next after the date of signing
such certificate.
(d) Such The certificates shall state the name and residence of each of such the candidates;
that he or she is legally qualified to hold such the office; that the subscribers are legally qualified and
duly registered as voters and desire to vote for such the candidates; and may designate, by not more
than five words, a brief name of the party which such the candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of
such the certificates shall have their names placed on the official ballot as candidates, as if otherwise
nominated under the provisions of this chapter.
The Secretary of State shall prescribe the form and content of the nomination certificates to
be used for soliciting signatures. The content shall include the language to be used in giving written
and oral notice to each voter that signing of the nominating certificate forfeits that voter's right to
vote in the corresponding primary election.
Offices to be filled by the voters of more than one county shall use separate petition forms
for the signatures of qualified voters for each county.
(e) The Secretary of State, or the clerk of the circuit court county commission, as the case
may be, may investigate the validity of such the certificates and the signatures thereon. and if upon
such If upon investigation there may be doubt as to the legitimacy and the validity of such the
certificate, he or she may request the Attorney General of the state, or the prosecuting attorney of the
county, to institute a quo warranto proceeding against the nominee or nominees by certificate to
determine his or their right to such the nomination to public office, and upon request being made,
the Attorney General or prosecuting attorney shall institute such the quo warranto proceeding. The
clerk of the county commission shall, at the request of the Secretary of State or the clerk of the
circuit court, compare the information from any certificate to the county voter registration records
in order to assist in determining the validity of any certificates.
(f) Any person violating the provisions of this section, in addition to penalties prescribed
elsewhere for violation of this chapter, is guilty of a misdemeanor and, upon conviction, shall be
fined not more than one thousand dollars, or confined in the county or regional jail for not more than
one year, or both, in the discretion of the court: Provided, That no criminal penalty may be imposed
upon anyone who signs a nomination certificate and votes in the primary election held after the date
the certificate was signed.
§3-5-24. Filing of nomination certificates; time.
All certificates nominating candidates for office under the preceding section, including a
candidate for the office of presidential elector, shall be filed, in the case of a candidate to be voted for by the voters of the entire state or by any subdivision thereof other than a single county, with the
Secretary of State, and in the case of all candidates for county and magisterial district offices,
including all offices to be filled by the voters of a single county, with the clerk of the circuit court
of the county commission, not later than the day preceding the date on which the primary election
is held. After such that date no such certificate shall be received by such officers.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-4. Late nominations; stickers.
If a nomination to fill a vacancy be is made by a political party executive committee or, on
its failure to so act within the time prescribed by law, be is made by the chairman of such the
committee, and be certified to the clerk of the circuit court county commission after the ballots to
be used at the ensuing election shall have been printed, the clerk shall forthwith lay such certificates
before the ballot commissioners who, without delay, shall prepare, or cause to be prepared, and
deliver, or cause to be delivered, to the election commissioners of each precinct in which such the
candidate is to be voted for, a number of stickers, containing only the name of such the candidate,
at least equal to the total number of ballots provided for such the precinct; but no such stickers shall
be furnished to or received by any person except a commissioner of election. It shall be is the duty
of the commissioners holding the election to deliver such stickers to the poll clerks, who shall, in the
presence of the election commissioners, affix one of such the stickers in a careful manner at the
proper place for the name of the candidate, upon each ballot to be voted at the election, before the
poll clerks shall sign their names on the ballots. Such The stickers may be delivered to the election
officers, by the clerk of the county court commission, with the ballots, poll books and other supplies.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes to an office, except delegate
to national convention, which is to be filled in a primary, general or special election held under the
provisions of this chapter, shall file a write-in candidate's certificate of announcement as provided
in this section. No certificate of announcement may be accepted and no person may be certified as
a write-in candidate for a political party nomination for any office or for election as delegate to
national convention.
(a) The write-in candidate's certificate of announcement shall be in a form prescribed by the
Secretary of State on which the candidate shall make a sworn statement before a notary public or
other officer authorized to give oaths containing the following information:
(1) The name of the office sought and the district and division, if any;
(2) The legal name of the candidate and the first and last name by which the candidate may
be identified in seeking the office;
(3) The specific address designating the location at which the candidate resides at the time
of filing, including number and street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of announcement is a candidate for the
office in good faith; and
(5) The words 'subscribed and sworn to before me this ______ day of _____________, ____'
and a space for the signature of the officer giving the oath.
(b) The certificate of announcement shall be filed with the filing officer for the political
division of the office as prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and received by the proper filing
officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this subsection, the certificate of
announcement for any office shall be received no later than the close of business on the twenty-first
day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates for an office on the ballot
resulting from the death of the nominee or from the disqualification or removal of a nominee from
the ballot by a court of competent jurisdiction not earlier than the twenty-first day nor later than the
fifth day before the general election, the certificate shall be received no later than the close of
business on the fifth day before the election or the close of business on the day following the
occurrence of the vacancy, whichever is later;
(3) When a vacancy occurs in an elective office which would not otherwise appear on the
ballot in the election, but which creates an unexpired term of one or more years which, according
to the provisions of this chapter, is to be filled by election in the next ensuing election and the vacancy occurs no earlier than the twenty-first day and no later than the fifth day before the general
election, the certificate shall be received no later than the close of business on the fifth day before
the election or the close of business on the day following the occurrence of the vacancy, whichever
is later.
(d) Any eligible person who files a completed write-in candidate's certificate of
announcement with the proper filing officer within the required time shall be certified by that filing
officer as an official write-in candidate:
(1) The Secretary of State shall, immediately following the filing deadline, post the names
of all official write-in candidates for offices on the ballot in more than one county and certify the
name of each official write-in candidate to the clerks of the circuit court county commissions of the
appropriate counties.
(2) The clerk of the circuit court county commission shall, immediately following the filing
deadline, post the names of all official write-in candidates for offices on the ballot in one county and
certify and deliver to the clerk of the county commission and the election officials of the appropriate
precincts, the names of all official write-in candidates and the office sought by each for statewide,
district and county offices on the ballot in the precinct for which valid write-in votes will be counted
and the names shall be posted at the office where absentee voting is conducted and at the precincts
in accordance with section twenty, article one of this chapter.
ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-18. Unlawful voting in primary elections; penalties.
Any person voting, in any primary election, any ticket of a party other than that of which he
is registered as a member, and any election officer receiving the vote of any such person, knowing,
or having reason to believe, that such voter is not a member of the party the ticket of which he is
voting; or who, having signed or joined in any petition or certificate nominating any candidate for
office, shall, at the primary election to be held to nominate candidates for the same office, vote at
such primary election; shall in each instance be guilty of a misdemeanor, and, on conviction thereof,
shall be fined not more than one thousand dollars, or be confined in the county jail for not more than
one year, or both, in the discretion of the court.
ARTICLE 10. FILLING VACANCIES.
§3-10-6. Vacancy in office of circuit court clerk.
When a vacancy occurs in the office of clerk of the circuit court, the circuit court by a
majority vote of the judges, or the chief judge thereof in vacation, shall fill the same by appointment
of a person of the same political party as the officeholder vacating the office until the next general
election, or until the completion of the term if the term ends on the thirty-first day of December
following the next general election. and the The person so appointed shall hold office until his or
her successor is elected and qualified. At such the general election, a clerk shall be elected for the
unexpired term if the unexpired term is greater than one year. The circuit court, or the chief judge
thereof in vacation, shall cause a notice of such the election to be published prior to such the election
as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-
nine of this code. and the The publication area for such the publication shall be the county. If the
vacancy occurs no later than the eighty-fourth day before the primary election held to nominate
candidates to be voted for at the general election, at which any such vacancy is to be filled,
candidates to fill such the vacancy shall be nominated at such the primary election in accordance
with the time requirements and the provisions and procedures prescribed in section eleven, article
five of this chapter. If the vacancy occurs after the eighty-fourth day before the primary but not later
than the eighty-fourth day before the general election, they shall be nominated by the county
executive committee in the manner provided in section nineteen, article five of this chapter, as in the
case of filling vacancies in nominations, and the names of the persons, so nominated and certified
to the clerk of the circuit court county commission of such the county, shall be placed upon the ballot
to be voted at such the next general election."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 647),
and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Cann, Frich, Kominar, Miley, Stalnaker and H. White.
Absent And Not Voting: Rick Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 669) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
S. B. 669 - - " A Bill to amend and reenact §3-1-19, §3-1-20, §3-1-21, §3-1-21a, §3-1-24 and
§3-1-25 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-3-2 and §3-3-11
of said code; to amend and reenact §3-4-10, §3-4-12 and §3-4-12a of said code; to amend and
reenact §3-4A-12, §3-4A-13 and §3-4A-13a of said code; to amend and reenact §3-5-7, §3-5-8, §3-5-
8a, §3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and §3-5-24 of said code; to
amend and reenact §3-6-4 and §3-6-4a of said code; to amend and reenact §3-9-18 of said code; and
to amend and reenact §3-10-6 of said code, all relating to the regulation and control of elections;
transferring certain election duties from the circuit clerk to the clerk of the county commission;
removing unconstitutional provisions regarding nominating petitions; providing that the county clerk
shall assist the Secretary of State in determining the validity of nominating petitions; and removing
the prohibition on a person signing or joining in any petition or certificate nominating any candidate
for office from voting in a primary election."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
H. B. 2522, Relating to creating and licensing mini-distilleries.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section five-b, line eleven, by striking out the word "further" and inserting
in lieu thereof the word "however".
On page three, section five-b, line thirteen, by striking out the words "shall be" and inserting
in lieu thereof the word "is".
On page five, section three, line fourteen, by striking out the word "thereof" and inserting in
lieu thereof the words "of the wine".
And,
On pages six and seven, section three-a, lines twenty-five through thirty-five, by striking out
all of subsection (e) and inserting in lieu thereof a new subsection (e), to read as follows:
"(e) Limitations on licensees. -- No mini-distillery may sell more than three thousand gallons
of product at the mini-distillery location the initial two years of licensure. The mini-distillery may
increase sales at the mini-distillery location by two thousand gallons following the initial twenty-four
month period of licensure, and may increase sales at the mini-distillery location each subsequent
twenty-four month period by two thousand gallons, not to exceed ten thousand gallons a year of total
sales at the mini-distillery location. No licensed mini-distillery may produce more than twenty
thousand gallons per calendar year at the mini-distillery location. No more than one mini-distillery
licence may be issued to a single person or entity."
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. 648), and there were--yeas
90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Hamilton, Howard, Lane, Leggett, Overington, Sobonya, Stevens and
Sumner.
Absent And Not Voting: Rick Thompson.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2522) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 289, Allowing fill material in waters of state; definition,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B.289) was taken up for immediate consideration, read a second time and then ordered to third
reading.
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. 58, Requesting the Joint Committee on Government and Finance to study the
feasibility of impounding and auctioning off a motor vehicle in the event that the owner has been
convicted of driving with no insurance three or more times,
H. C. R. 65, Requesting the vision of Highways name Bridge 4827 the " Sergeant George
F. Eubanks Memorial Bridge",
H. C. R. 91, Requesting that the Joint Committee on Government and Finance to conduct
a study of certain subjects relating to the State's Natural Resources,
H. C. R. 92, Requesting the Joint Committee on Government and Finance to conduct a study
of the production of bio-diesel fuels,
H. C. R. 94, Requesting the Joint Committee on Government and Finance to study the
actions that may be undertaken to ensure the competitiveness of West Virginia's coal industry,
And,
S. C. R. 42, Urging Congress provide domestic energy policy and requesting Joint
Committee on Government and Finance study energy policy for state,
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolutions (H. C. R. 58,
H. C. R. 65, H. C. R. 91, H. C. R. 92 and S. C. R.) were taken up for immediate consideration and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 2:47 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:15 p.m.,
and reconvened at that time.
Conference Committee Report Availability
At 5:22 p.m., the Clerk announced the availability in his office of the reports of the
Committees of Conference on S. B. 604, Establishing method for projecting increase in net
enrollment for each school district, and Com Sub. for S. B. 583, Relating to appealing orders from
family court to circuit court.
Conference Committee Report
Delegate Long, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com. Sub. for H. B. 2492, Providing a funding mechanism for teen court programs.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses on the amendment
of the House to of Delegates to Com. Sub. for H. B. 2492, having met, after full and free conference,
have agreed to recommend to their respective houses, as follows:
That the Senate has agreed to accept the House amendment, with the following amendment
to the House amendment:
On page three, section thirteen-d, subsection (d), line nine, following the word "program",
by striking a comma and the words "less five percent which shall be retained as fee income to the
office of the clerk of the municipal, magistrate or circuit court processing the case", followed by a
period.
Respectfully submitted,
Marshall Long,Jon Blair Hunter,
Bonnie Brown,Clark S. Barnes,
Greg Howard,Dan Foster,
Conferees on the partConferees on the part
of the House of Delegates. of the Senate.
On motion of Delegate Long, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 649), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Rick Thompson.
Absent And Not Voting: Fragale, Romine and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2492) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of
Conference on and the passage, as amended by said report, of
Com. Sub. for S. B. 717, Permitting Wetzel County Hospital provide alternate retirement
plan for new employees.
Conference Committee Report
Delegate Stalnaker, from the committee of conference on matters of disagreement between
the two houses, as to
Com. Sub. for S. B. 717, Permitting Wetzel County Hospital provide alternate retirement
plan for new employees.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the
amendments of the House to Engrossed Committee Substitute for Senate Bill No. 717 having met, after full and free conference, have agreed to recommend and do recommend to their respective
houses, as follows:
That both houses recede from their respective positions as to section eighteen and agree to
the same as follows:
"That §5-10-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted,
to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires or dies, he or she ceases to be a member.
When a member leaves the employ of a participating public employer for any other reason, he or she
ceases to be a member and forfeits service credited to him or her at that time. If he or she becomes
reemployed by a participating public employer he or she shall be reinstated as a member of the
retirement system and his or her credited service last forfeited by him or her shall be restored to his
or her credit: Provided, That he or she must be reemployed for a period of one year or longer to have
the service restored: Provided, however, That he or she returns to the members' deposit fund the
amount, if any, he or she withdrew from the fund, together with regular interest on the withdrawn
amount from the date of withdrawal to the date of repayment, and that the repayment begins within
two years of the return to employment and that the full amount is repaid within five years of the
return to employment.
(b) The Prestera Center for Mental Health Services, Valley Comprehensive Mental Health
Center, Westbrook Health Services and Eastern Panhandle Mental Health Center, and their
successors in interest, shall provide for their employees a pension plan in lieu of the Public
Employees Retirement System during the existence of the named mental health centers and their
successors in interest.
(c) The administrative bodies of the Prestera Center for Mental Health Services, Valley
Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental
Health Center shall, on or before the first day of May, one thousand nine hundred ninety-seven, give
written notice to each employee who is a member of the Public Employees Retirement System of the option to withdraw from or remain in the system. The notice shall include a copy of this section
and a statement explaining the member's options regarding membership. The notice shall include
a statement in plain language giving a full explanation and actuarial projection figures in support of
the explanation regarding the individual member's current account balance, vested and nonvested,
and his or her projected return upon remaining in the public employees retirement system until
retirement, disability or death, in comparison with the projected return upon withdrawing from the
Public Employees Retirement System and joining a private pension plan provided by the Community
Mental Health Center and remaining therein until retirement, disability or death. The administrative
bodies shall keep in their respective records a permanent record of each employee's signature
confirming receipt of the notice.
(d) Effective the first day of March, two thousand three, and ending the thirty-first day of
December, two thousand four, any member may purchase credited service previously forfeited by
him or her and the credited service shall be restored to his or her credit: Provided, That he or she
returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together
with interest on the withdrawn amount from the date of withdrawal to the date of repayment at a rate
to be determined by the Board . The repayment under this section may be made by lump sum or
repaid over a period of time not to exceed sixty months. Where the member elects to repay the
required amount other than by lump sum, the member is required to pay interest at the rate
determined by the Board until all sums are fully repaid.
(e) Effective the first day of July, two thousand five, and ending the thirty-first day of
December, two thousand six, any emergency services personnel may purchase service credit for the
time period beginning the first day of January, one thousand nine hundred ninety, and ending the
thirty-first day of December, one thousand nine hundred ninety-five: Provided, That person was
employed as an emergency service person in this state for that time period: Provided, however, That
any person obtaining service credit under this subsection is required to pay the employee's share and
the employer's share upon his or her actual salary for the years in question plus interest at the
assumed actuarial rate of return for the plan year being repurchased.
(f) Jobs for West Virginia's Graduates and their successors in interest shall provide a pension
plan in lieu of the Public Employees Retirement System for employees hired on or after the first day
of July, two thousand five.
(g) Wetzel County Hospital and their successors in interest shall provide a pension plan in
lieu of the Public Employees Retirement System for employees hired on or after the first day of July,
two thousand five.
And,
That both houses recede from their respective positions as to the title and agree to the same
as follows:
Com. Sub. for S. B. 717 - - "A Bill to amend and reenact §5-10-18 of the Code of West
Virginia, 1931, as amended, relating to permitting Wetzel County Hospital and Jobs for West
Virginia's Graduates respectively to provide an alternative retirement plan for new employees in lieu
of participation in the Public Employees Retirement System; establishing date; and permitting
emergency services personnel to purchase service credit for the years one thousand nine hundred
ninety to one thousand nine hundred ninety-five; specifying the cost of the service credit; specifying
interest rate; and setting forth a limited time period for emergency services personnel to make the
purchase."
On motion of Delegate Stalnaker, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 650), 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: Fragale, Hunt, Romine and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 717) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 651), 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: Fragale, Leggett, Romine and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 717) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Special Calendar
Third Reading
At the request of Delegate Staton, and by unanimous consent, further consideration of the
following bills was then postponed:
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
And,
S. B. 237, Allowing municipalities to increase hotel occupancy tax.
S. B. 561, Authorizing Greater Huntington Park and Recreation District impose fees and
issue revenue bonds;on third reading, coming up in regular order, with the right to amend, was
reported by the Clerk.
On recommendation of the Committee on Finance the bill was amended on page two,
following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof
the following:
"GREATER HUNTINGTON PARK AND RECREATION DISTRICT.
§7. Financing and financial powers.
The park district shall have the following powers to:
(1) Make charges to the public for services offered or goods sold by the park district.
(a) Charges for services may be in the form of, but not limited to: Admission and entrance
fees; exclusive use and rental fees; user fees; license and permit fees; equipment rental; program
maintenance fees; instructor fees; special accommodation fees; amusement fees; restricted
membership fees; and cemetery service fees.
(b) Charges for goods sold may be in the forms of, but not limited to: Beverages and foods;
novelties and gifts; clothing; athletic equipment and supplies; cemetery plots, crypts, monuments, memorials, markers, vaults and any other forms of merchandise sold in connection with the burial
of the dead; and other items that may pertain to the operation and maintenance of the park district.
(2) Impose upon the users of the park system reasonable service fees in addition to the service
fees authorized by paragraph (a), subdivision (1) of this section. As used in this section, 'users'
means any persons to whom the park system is made available.
(a) The board of directors of the park district may adopt one or more resolutions establishing
the amount and manner of collection of the fees and providing for reasonable penalties for failure
to pay service fees. No resolution imposing a service fee is effective until it is ratified by a majority
of the legal votes cast by the qualified voters of the district at a primary or general election.
(b) In addition to meeting the ballot and election requirements set forth in subdivision (3) of
this section, the ballot question must set forth the service fee, the manner in which it will be imposed
and the general use to which the proceeds of the service fee shall be put. From time to time, the
board may submit additional resolutions imposing additional service fees to the district's electors
for approval pursuant to this section.
(3) Issue revenue bonds or refunding revenue bonds for the district, in the manner prescribed
by the applicable provisions of sections seven, ten, twelve and sixteen, article sixteen, chapter eight
of the code of West Virginia, 1931, as amended. No revenue bonds, except for refunding revenue
bonds, may be issued under this section until all questions connected with the bonds are first
submitted to a vote of the qualified electors of the district for which the bonds are to be issued, and
receive a majority of all the votes cast for and against the issuance. The ballot question must set
forth:
(a) The necessity for issuing the bonds;
(b) Purpose or purposes for which the proceeds of bonds are to be expended;
(c) Total indebtedness, bonded or otherwise;
(d) Amount of the proposed bond issue;
(e) Maximum term of bonds and series;
(f) Maximum rate of interest;
(g) Date of election;
(h) That the park district is authorized to collect fees to provide funds for the payment of the
interest upon the bonds and the principal at maturity, and the approximate amount of fees necessary
for this purpose.
(i) Notice of any election shall be given by publication, within fourteen consecutive days next
preceding the date of the election, of the resolution imposing the service fee as a Class II legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and
the publication area for publication shall be the district. All of the provisions of the general election
laws of this State concerning primary or general elections, when not in conflict with the provisions
of this section, shall apply to elections hereunder, insofar as practicable.
(2) (4) Annually levy on each one hundred dollars of the assessed valuation of the property
taxable in said park district, within the corporate boundaries of the city of Huntington according to
the last assessment thereof for state and county purposes, as follows:
On Class I property, one and one-half cents; on Class II property, three cents; on Class IV
property, six cents. The park district may levy a lesser amount, in which case the above levies shall
be reduced proportionately. These levies shall be made at the time and in the manner provided by
article eight, chapter eleven of the Code of West Virginia, one thousand nine hundred thirty-one,
as amended; except that the levies shall be included in the maximum rates for the city of Huntington
as established by law.
After the park district has made the levy, it shall certify to the finance director of the city of
Huntington the amount of the said levy, and the finance director shall thereupon extend the levy upon
the tax tickets, and all levies made by the park district shall be collected by the finance director who
shall occupy a fiduciary relationship with the park district, and then such levy funds shall be paid to
the park district upon written order of the park district signed by the president of the park district and
countersigned by the secretary of the park district.
Levies for support, maintenance and operation.
(3) (5) In order to ensure adequate support for the maintenance and operation of the park
district, the following governing authorities shall, upon written request by the park district, levy
annually as follows within the respective taxing districts of the governing authorities, on each one hundred dollars of assessed valuation of the property taxable in the area served by it according to the
last assessment for state and county purposes, amounts not exceeding the following amounts for
fiscal year beginning the first day of July, one thousand nine hundred eighty-three:
(a) The county commission of Cabell County, for the first year of the act and annually
thereafter: Class I, .433 cents; Class II, .866 cents; Class III and Class IV, 1.73 cents.
(b) The county commission of Wayne County, for the first year of the act and annually
thereafter; Class I, .0066 cents; Class II, .0132 cents; Class III and Class IV, .0266 cents.
(c) The board of education of the county of Cabell shall provide funds available to the board
through special and excess levies for the first year of the act and annually thereafter: Class I, .433
cents; Class II, .866 cents; Class III and Class IV, 1.73 cents.
(d) The city of Huntington, for the first year of the act and annually thereafter: Class I, one
and three-tenths cents; Class II, two and six-tenths cents; Class III and Class IV, five and
two-tenths cents.
(e) The town of Milton, for the first year of the act and annually thereafter: Class I, one and
three-tenths cents; Class II, two and six-tenths cents; Class III and Class IV, five and two- tenths
cents.
In addition to the aforesaid amounts which, upon written request by said board, the governing
authorities shall levy, each such governing authority may support the park district with any other
general or special revenues or excess levies. All income realized by the operation of the park district
from any sources other than the above levies shall be used by the board of directors for support of
the park district.
All money collected or appropriated by the foregoing governing authorities for park district
purposes shall be deposited in a special account of the park district and shall be disbursed by that
board for the purpose of operating such park district.
(4) (6) Assess the cost of improvements to or construction of streets, sidewalks, sewers,
curbs, alleys, public ways or easements, or portions thereof, upon the abutting property owners
whose property lies within the park district. Such assessments shall require approval of a majority
of the commissioners present and voting and shall be commenced and conducted in such manner as is prescribed by article eighteen, chapter eight of the Code of West Virginia, one thousand nine
hundred thirty-one, as amended.
(5) (7) The municipalities of Huntington and Milton and the counties of Cabell and Wayne
are hereby empowered, and authorized to issue, in the manner prescribed by law, revenue bonds or
general obligation bonds for the purpose of raising funds to establish, construct, improve, extend,
develop, maintain or operate a system of public parks and recreational facilities for the city or
counties, or to refund any bonds of the city or counties, the proceeds of which were expended in the
establishing, constructing, improving, extending, developing, maintaining or operating of such public
park and recreation system or any part thereof. Any bonds issued for any of the purposes stated in
this section shall contain in the title or subtitle thereto the words 'public park and recreation bonds',
in order to identify the same, and shall be of such form, denomination and maturity and shall bear
such rate of interest as shall be fixed by ordinance of the governing body of the city or counties. The
governing body may provide for the issuance of bonds for other lawful purposes of the city or
counties in the same ordinance in which provision shall be made for the issuance of bonds under the
provisions of this section. The park district shall pay all of the costs and expenses of any election
which shall be held to authorize the issuance of public park and recreation bonds only. The costs and
expenses of holding an election to authorize the issuance of public park and recreation bonds and
bonds for other city or county purposes shall be paid by the park district and the city or counties
respectively, in the proportion that the public park and recreation bonds bear to the total amount of
bonds authorized.
Whenever the governing body of the city or counties and the requisite majority of the legal
votes cast at the election thereon shall authorize in the manner prescribed by law, the issuance of
bonds for the purpose of establishing, constructing, improving, extending, developing, maintaining
or operating, or any combination of the foregoing, a system of public parks and recreational facilities
for the city or counties or for refunding any outstanding bonds, the proceeds of which were applied
to any of said purposes, said bonds shall be issued and delivered to the park district to be by it sold
in the manner prescribed by law and the proceeds thereof shall be paid into the treasury of the park
district and the same shall be applied and utilized by the park district for the purposes prescribed by the ordinance authorizing the issuance of such bonds. In any ordinance for the issuance of bonds for
such purposes, it shall be a sufficient statement of the purposes for creating the debt to specify that
the same is for the purpose of establishing, constructing, improving, extending, developing,
maintaining or operating, or any combination of the foregoing, a public park and recreation system
for the city or counties, without specifying the particular establishment, construction, improvement,
extension, development, maintenance or operation contemplated; but an ordinance for refunding
bonds shall designate the issue and the number of bonds which it is proposed to refund.
(6) (8) Sue and be sued; make contracts and guarantees; incur liabilities; borrow or lend
money for any time period deemed advisable by the commission, sell, mortgage, lease, exchange,
transfer or otherwise dispose of its property; or pledge its property as collateral or security for any
time period deemed advisable by the commission.
(7) (9) Create trusts of such kind as will expedite the efficient management of the property
and other assets owned or controlled by the park district. The trustee, whether individual or
corporate, in any such trust shall have a fiduciary relationship with the park district and may be
removed by the park district for good cause shown or for a breach of the fiduciary relationship with
the park district."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 653),
and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Armstead, Hamilton, Lane, Martin, Overington, Perdue, Sumner, Rick Thompson and
Walters.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 561) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 622, Clarifying exemption for property used by certain not-for-profit, tax-exempt
corporations; on third reading, coming up in regular order, was, at the request of Delegate Staton,
an by unanimous consent, postponed until the completion of all items remaining on the calendar.
Com. Sub. for S. B. 666, Relating to exemptions for certain insurance companies from
business franchise tax and corporation net income tax; was, at the request of Delegate Staton, and
by unanimous consent, consideration of the bill was then postponed until the completion of all items
remaining on the calendar.
Second Reading
S. B. 159, Creating Consolidated Local Government Act; on second reading, coming up in
regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page twelve, article three, section one, after line nine,
by striking out the article title and said section one in its entirety, and inserting in lieu thereof a new
section one, to read as follows:
"ARTICLE 3. INITIATING CONSOLIDATION AND ESTABLISHING CHARTER
REVIEW COMMITTEE.
§7A-3-1. Initiating consolidation.
(a) Consolidation may be initiated by a petition signed by at least thirty percent of the
qualified voters in the affected municipality, county or metro government proposing consolidation:
Provided, That in a proposed metro consolidation involving one or more counties and a principal city
that the petition must be signed by at least thirty percent of the qualified voters of the unincorporated
voters in each county;
(b) The petition shall be submitted to the respective county commission of the affected
county or the governing body of a metro government proposing consolidation.
(c) Upon receipt by the respective county commission or the governing body of the metro
government of the petition proposing consolidation, the governing body shall, within thirty days,
verify the petition proposing consolidation and either oversee the establishment of a charter review committee as provided for in this chapter or reject the petition proposing consolidation for
insufficiency.
(d) If the governing body rejects the petition proposing consolidation, the rejection shall be
in writing, stating how the insufficiency may be corrected and that the petition may be resubmitted
within ninety days."
On page thirteen, section two, after line twenty-six, by striking out said section two in its
entirety, and inserting in lieu thereof a new section two, to read as follows:
"§7A-3-2. Municipal charter review committee.
(a) A municipal charter review committee shall be established within thirty days of the county
commission verifying the petition proposing consolidation.
(b) A municipal charter review committee shall consist of the following members:
(1) Two government officials or their designees from each affected municipality appointed
by their respective governing bodies;
(2) One county commissioner or his or her designee appointed by the county commission
from each county where the affected municipalities are located; and
(3) Two or three public members elected during executive session by the other members to
make the number of charter review committee members odd.
(c) A municipal charter review committee shall continue to exist until it is dissolved pursuant
to the charter or the final disapproval of the charter."
On page fourteen, section three, after line eighteen, by striking out said section three in its
entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-3-3. County charter review committee.
(a) A county charter review committee shall be established within thirty days of the county
commissions verifying the petition proposing consolidation.
(b) A county charter review committee shall consist of the following members:
(1) Two county commissioners or their designees from each affected county appointed by
their respective county commissions; and
(2) Three public members, including one from an unincorporated area, elected during
executive session by the other charter review committee members.
(c) A county charter review committee shall continue to exist until it is dissolved pursuant
to the charter or the final disapproval of the charter."
On page fifteen, section four, after line fifteen, by striking out said section four in its entirety,
and inserting in lieu thereof a new section four, to read as follows:
"§7A-3-4. Metro charter review committee.
(a) A metro charter review committee shall be established within thirty days of the county
commission or the governing body of a metro government verifying the petition proposing
consolidation.
(b) For metro consolidation, the metro charter review committee shall consist of the
following members:
(1) One government official or his or her designee from each affected municipality appointed
by the governing body of the principal city;
(2) If any municipality is located in two counties, then one county commissioner or his or her
designee from the county not participating in consolidation appointed by the respective county
commission;
(3) Two county commissioners or their designees from each affected county appointed by
their respective county commissions; and
(4) Two or three public members, including one from an unincorporated area, elected during
executive session by the other members to make the number of charter review committee members
odd.
(c) For metro-metro consolidation, the metro charter review committee shall consist of the
following members:
(1) One government official or his or her designee from each affected metro government
appointed by their respective governing bodies;
(2) If additional counties or municipalities are joining in the consolidation, then two
government officials or their designees from each affected county appointed by their respective
governing bodies and/or one government official or his or her designee from each affected
municipality; and
(3) Two or three public members elected during executive session by the other members to
make the number of charter review committee members odd.
(d) A metro charter review committee shall continue to exist until it is dissolved pursuant to
the charter or the final disapproval of the charter."
On page twenty-three, section three, after line eleven, by striking out said section three in its
entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-5-3 . Election and ballots for municipal consolidation.
(a) At the next primary or general election following receipt of the proposed charter from the
municipal charter review committee, the governing bodies of the affected municipalities shall hold
an election on the question of consolidation. The elections in the affected municipalities shall be
held on the same day in accordance with applicable election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page twenty-three, section four, after line eleven, by striking out said section four in its
entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-5-4. Approval of municipal consolidation and charter.
If at least sixty percent of the qualified voters in each of the affected municipalities approves
consolidation, then consolidation becomes effective pursuant to the charter."
On page twenty-four, section five, before line one, by striking out said section five in its
entirety, and inserting in lieu thereof a new section five, to read as follows:
"§7A-5-5. Rejection of charter and reconsideration process.
(a) If less than sixty percent of the qualified voters in any of the affected municipalities
approves consolidation, then consolidation is rejected and the municipal charter review committee
may reconvene for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the municipal charter review committee,
then the governing bodies of the affected municipalities shall hold another election on the second
proposed charter at the next primary or general election after receipt of the second proposed charter
from the municipal charter review committee. The elections in the affected municipalities shall be
held on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified
voters in the affected municipalities, then the proposed consolidation is rejected. A new municipal
charter review committee cannot be established for at least two years after the second proposed
charter is rejected."
On page twenty-five, section six, after line twenty-two, by striking out said section six in its
entirety, and inserting in lieu thereof a new section six, to read as follows:
"§7A-5-6. Filing charter.
After the charter has been approved by at least sixty percent of the qualified voters in the
affected areas, the charter shall be filed with the Secretary of State and recorded in the applicable
county clerk's office."
On page twenty-five, section seven, after line four, by striking out said section seven in its
entirety, and inserting in lieu thereof a new section seven, to read as follows:
"§7A-5-7. Subsequent joining of municipality to consolidated municipality.
(a) After a consolidated municipality has been in existence for at least one year, a
municipality that is not part of the consolidated municipality may join the consolidated municipality
by a petition signed by at least thirty percent of the qualified voters in the municipality.
(b) At the next primary or general election following receipt of the petition from the
municipality to the governing body of the consolidated municipality, the governing body of the
consolidated municipality shall vote to accept or reject the municipality joining the consolidated
municipality.
(c) If the governing body of the consolidated municipality votes to accept the municipality
joining the consolidated municipality, then the municipality shall, within one hundred twenty days
of acceptance, hold an election on consolidation. The election shall be held in accordance with
applicable election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of consolidated municipality) charter
[ ] Against the (name of consolidated municipality) charter.
(e) If at least sixty percent of the qualified voters in the municipality approves consolidation,
then the municipality becomes part of the consolidated municipality.
(f) If less than sixty percent of the qualified voters in the municipality approves consolidation,
then the consolidation is rejected and cannot be voted upon for one year."
On page twenty-seven, section three after line eleven, by striking out said section three in its
entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-6-3. Election and ballots for county consolidation.
(a) At the next primary or general election following receipt of the proposed charter, the
governing bodies of the affected counties shall hold an election on the question of consolidation.
The elections in the affected counties shall be held on the same day in accordance with applicable
election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page twenty-eight, section four, after line ten, by striking out said section four in its
entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-6-4. Approval of county consolidation and charter.
If at least sixty percent of the qualified voters in each of the affected counties approves
consolidation, then consolidation becomes effective pursuant to the charter."
On page twenty-eight, section five, after line three, by striking out said section five in its
entirety, and inserting in lieu thereof a new section five, to read as follows:
"§7A-6-5. Rejection of charter and reconsideration process.
(a) If less than sixty percent of the qualified voters in any of the affected counties approves
consolidation, then consolidation is rejected and the county charter review committee may reconvene
for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the county charter review committee,
then the governing bodies of the affected counties shall hold another election on the second proposed
charter at the next primary or general election. The elections in the affected counties shall be held
on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified
voters in the affected counties, then the proposed consolidation is rejected. A new county charter
review committee cannot be established for at least two years after the second proposed charter is
rejected."
On page twenty-nine, section six, after line twenty-two, by striking out said section six in its
entirety, and inserting in lieu thereof a new section six, to read as follows:
"§7A-6-6. Filing charter.
After the charter has been approved by at least sixty percent of the qualified voters in the
affected areas, the charter shall be filed with the Secretary of State and recorded in all of the
applicable county clerk's offices."
On page twenty-nine, section seven, after line four, by striking out said section seven in its
entirety, and inserting in lieu thereof a new section seven, to read as follows:
"§7A-6-7. Subsequent joining of county to consolidated county government.
(a) After a consolidated county government has been in existence for at least one year, a
county that is not part of the consolidated county may join the consolidated county by a petition
signed by at least thirty percent of the qualified voters in the county.
(b) Within thirty days of receipt of the petition from the county to the governing body of the
consolidated county, the governing body of the consolidated county shall vote to accept or reject the
county joining the consolidated county.
(c) If the governing body of the consolidated county votes to accept the county joining the
consolidated county, then the county shall, at the next primary or general election, hold an election
on consolidation. The election shall be held in accordance with applicable election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of consolidated county) charter
[ ] Against the (name of consolidated county) charter.
(e) If at least sixty percent of the qualified voters in the county approves the consolidation,
then the county becomes part of the consolidated county.
(f) If less than sixty percent of the qualified voters in the county approves the consolidation,
then the consolidation is rejected and cannot be voted upon for one year."
On page thirty-one, section three, after line twelve, by striking out said section three in its
entirety, and inserting in lieu thereof a new section three, to read as follows:
"§7A-7-3. Election and ballots for metro government.
(a) At the next primary or general election following receipt of the proposed charter from the
metro charter review committee, the governing body of each affected county and metro government
shall hold an election on the question of metro government and the proposed charter. The elections
in the affected county or metro government shall be held on the same day in accordance with
applicable election laws.
(b) The ballots for the election on consolidation shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation."
On page thirty-two, section four, after line eleven, by striking out said section four in its
entirety, and inserting in lieu thereof a new section four, to read as follows:
"§7A-7-4. Approval of metro government and charter.
If at least sixty percent of the qualified voters of the voting precincts in the principal city and
at least sixty percent of the qualified voters in the affected county precincts outside of the principal
city or metro government approve consolidation, then metro government becomes effective pursuant
to the charter."
On page thirty-two, section five, after line five, by striking out said section five in its entirety,
and inserting in lieu thereof a new section five, to read as follows:
"§7A-7-5. Rejection of charter and reconsideration process.
(a) If less than sixty percent of the qualified voters of the voting precincts in the principal city
or the affected county precincts outside of the principal city or metro government approves
consolidation, then consolidation is rejected and the metro charter review committee may reconvene
for up to six months to adopt a second proposed charter.
(b) When the second proposed charter is adopted by the metro charter review committee, then
the governing bodies of the affected county precincts outside of the principal city or metro
government shall hold another election on the second proposed charter at the next primary or general
election after receipt of the second proposed charter from the metro charter review committee. The
elections in the affected county precincts outside of the principal city or metro government shall be
held on the same day and in accordance with applicable election laws.
(c) The ballots for the election on the second proposed charter shall be as follows:
[ ] For charter proposing consolidation
[ ] Against charter proposing consolidation.
(d) If the second proposed charter is not approved by at least sixty percent of the qualified
voters of the voting precincts in the principal city, or affected county precincts outside of the principal city or metro government, then the proposed consolidation is rejected. A new metro charter
review committee cannot be established for at least two years after the second proposed charter is
rejected."
On page thirty-four, section seven, after line six, by striking out said section seven in its
entirety, andinserting in lieu thereof a new section seven, to read as follows:
"§7A-7-7. Filing charter
.
After the charter has been approved by at least sixty percent of the qualified voters in the
affected areas, the charter shall be filed with the Secretary of State and recorded in the applicable
county clerk's offices."
On page thirty-four, section eight, after line four, by striking out said section eight in its
entirety, and inserting in lieu thereof a new section eight, to read as follows:
"§7A-7-8. Subsequent joining of municipalities or counties to metro government.
(a) After a metro government has been in existence for at least one year, a municipality or
county that is not part of the metro government may join the metro government by a petition signed
by at least thirty percent of the qualified voters in the municipality or county.
(b) Within thirty days of receipt of the petition from the municipality or county to the
governing body of the metro government, the governing body of the metro government shall vote
to accept or reject the municipality or county joining the metro government.
(c) If the governing body of the metro government votes to accept the municipality or county
joining the metro government, then the municipality or county shall, at the next primary or general
election, hold an election on consolidation. The election shall be held in accordance with applicable
election laws.
(d) The ballots for the election on consolidation shall be as follows:
[ ] For the (name of metro government) charter
[ ] Against the (name of metro government) charter.
(e) If at least sixty percent of the qualified voters in the municipality or county approves
consolidation, then the municipality or county becomes part of the metro government.
(f) If less than sixty percent of the qualified voters in the municipality or county approves
consolidation, then the consolidation is rejected and cannot be voted upon for one year."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 654), and there were--yeas 76, nays
23, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Blair, Border, Canterbury, Carmichael, Duke, Evans, Frich, Hall, Hamilton,
Lane, Leggett, Martin, Overington, Porter, Romine, Rowan, Schadler, Schoen, Stevens, Sumner,
Tansill and Trump.
Absent And Not Voting: Fragale.
So, four fifths of the members present having not voted in the affirmative, the constitutional
rule was not dispensed with.
S. B. 467, Authorizing Director of Division of Protective Services assess, charge and collect
fees; on second reading, coming up in regular order, was read a second time.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael the bill was amended on page
two, section seven, line eighteen, by striking the word "each" and inserting in lieu thereof the word
"a".
On page two, section seven, line twenty, following the word "security" by striking the word
"to" and inserting in lieu thereof the words "for special events held at".
On page two, section seven, line twenty-two, following the word "Virginia" by inserting a
colon and the following:
"Provided, That the director may only assess, charge or collect fees under the provisions of
this section for providing safety and security for special events. For purposes of this section, special
events are activities that are not considered by a state spending unit as within its ordinary course of
business".
On page two, section seven, following line twenty-four, by inserting the following:
"(d) The director is hereby directed to propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this code to effectuate the purposes of
this section, including but not limited to, the amount of fees that may be charged pursuant to
subsection (c) of this section."
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 655), and there were--yeas 91, nays
8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Frich, Hamilton, Lane, Louisos, Schoen, Sobonya, Stevens, and Walters.
Absent And Not Voting: Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 656),
and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Armstead, Hamilton, Sobonya, Stevens, Sumner and Walters.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 467) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 467-"A Bill to amend and reenact §15-2D-7 of the Code of West Virginia, 1931, as
amended, relating to authorizing the Director of the Division of Protective Services to assess, charge
and collect fees from state spending units and private entities for the direct cost and expenses of
safety and security services; and defining expenses."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 657), 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: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 467) 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.
Com. Sub. for S. B. 558, Relating to management and investment of public funds; on second
reading, coming up in regular order, was, at the request of Delegate Staton, an by unanimous
consent, postponed until the completion of all items remaining on the calendar.
Third Reading
Com. Sub. for S. B. 603, Relating to higher education; on third reading, having been
postponed in earlier proceedings, was reported by the Clerk.
An amendment recommended by the Committee on Finance was reported by the Clerk and
adopted, amending the bill on page nine, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931, as amended, be repealed;
that sections §18B-2-1, §18B-2-2 and §18B-2-3 of said code be repealed; that §18B-3-5 and
§18B-3-7 of said code be repealed; that §18B-5-2d of said code be repealed; that said code be
amended by adding thereto a new section, designated §12-1-12b; that §12-3-5, §12-3-6, §12-3-7 and
§12-3-8 of said code be amended and reenacted; that §18-2-23a of said code be amended and
reenacted; that said code be amended by adding thereto a new section, designated §18-2-24; that said
code be amended by adding thereto a new section, designated §18A-3-11; that §18A-3A-1 and
§18A-3A-2b of said code be amended and reenacted; that said code be amended by adding thereto
a new section, designated §18A-3A-6; that §18B-1-3 and §18B-1-6 of said code be amended and
reenacted; that §18B-1A-2 and §18B-1A-6 of said code be amended and reenacted; that §18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §18B-1B-13; that §18B-2A-3 and §18B-2A-4 of said code
be amended and reenacted; that said code be amended by adding thereto a new section, designated
§18B-2A-7; that said code be amended by adding thereto a new section, designated §18B-2B-9; that
§18B-3-1, §18B-3-2 and §18B-3-3 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §18B-3-4; that §18B-4-5, §18B-4-5a and
§18B-4-7 of said code be amended and reenacted; that §18B-5-3, §18B-5-4, §18B-5-7 and §18B-5-9
of said code be amended and reenacted; that said code be amended by adding thereto a new section,
designated §18B-5-10; that §18B-10-1, §18B-10-5 and §18B-10-6 of said code be amended and
reenacted; that said code be amended by adding thereto a new section, designated §18B-10-6a; that
said code be amended by adding thereto a new section, designated §18B-11-7; and that §18B-14-11
of said code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-12b. Pilot program for investments by Marshall University and West Virginia
University.
(a) Notwithstanding any provision of this article to the contrary, the governing boards of
Marshall University and West Virginia University each may invest certain funds with its respective
nonprofit foundation that has been established to receive contributions exclusively for that university
and which exists on the first day of January, two thousand five. Any such investment is subject to
the limitations of this section.
(b) A governing board, through its chief financial officer may enter into agreements,
approved as to form by the State Treasurer, for the investment by its foundation of certain funds
subject to their administration. Any interest or earnings on the moneys invested is retained by the
investing university
(c) Moneys of a university that may be invested with its foundation pursuant to this section
are those subject to the administrative control of the university that are collected under an act of the
Legislature for specific purposes, and do not include any funds made available to the university from the state general revenue fund or the funds established in sections eighteen or eighteen-a, article
twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section
may be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University may at any
time have not more than eight million dollars invested with its foundation. Of the moneys
authorized for investment by this section, West Virginia University may at any time have not more
than twenty-five million dollars invested with its foundation.
(e) Investments by foundations that are authorized under this section shall be made in
accordance with and subject to the provisions of the 'Uniform Prudent Investor Act' codified as
article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing
board shall establish investment policies in accordance with the Uniform Prudent Investor Act for
those moneys invested with its foundation. The governing board shall review, establish and modify,
if necessary, the investment objectives as incorporated in its investment policies so as to provide for
the financial security of the moneys invested with its foundation. The governing boards shall give
consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by the thirty-first day of December, to the
Governor and to the Joint Committee on Government and Finance on the performance of
investments managed by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with its foundation pursuant to this
section expires on the first day of July, two thousand ten.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS
§12-3-5. When requisition to Auditor sufficient authority for issuing warrant.
(a) When an appropriation has been made by law, subject to the order or payable on the
requisition of a particular officer, board or person, the order or written or electronic requisition in
writing of such officer, board, or person shall be is sufficient authority to the Auditor to issue his a
warrant for the same or any party thereof.
(b) The Auditor:
(1) Shall, if feasible within the Auditor's existing resources, accept an electronic requisition
from Marshall University and West Virginia University;
(2) May accept an electronic requisition from any entity other than Marshall University or
West Virginia University at his or her discretion; and
(3) May not issue a warrant for an amount that exceeds the appropriation or for an expired
appropriation. Provided, that the appropriation has not expired and the amount thereof shall not be
exceeded.
§12-3-6. Requisitions on behalf of state boards and institutions.
Appropriations
(a) An appropriation made to or for any state board or institution shall be drawn from the
Treasury upon the requisition of the proper officers an appropriate officer thereof made upon to the
Auditor at such times and in such amounts as may be is necessary for the purposes for which such
appropriations are the appropriation is made. and The Auditor shall pay the amount named in any
such the requisition at such times and in such installments as shall be are necessary for the purposes
for which any such the appropriation is made.
But all requisitions for appropriations
(b) Except as provided in subsection (c) of this section, a requisition for appropriation for
new buildings and substantial betterments except such as are under control of the state commissioner
of public institutions shall be accompanied by the architect's estimate that the amount named in such
the requisition is needed for immediate use.
(c) The provisions of subsection (b) of this section do not apply to a requisition from:
(1) An institution from which the Auditor is required to accept an electronic requisition.
Such an institution is not required to submit the documentation required in subsection (b) of this
section, but shall maintain the documentation for inspection at the Auditor's request; and
(2) The Commissioner of Corrections.
(d) The Auditor shall not may issue his a warrant to pay any money out of the State Treasury
unless the same only if the money is needed for the present use.
§12-3-7. Payment of compensation and expenses of members of state boards and
commissions; embezzlement.
The members of all state boards and commissions, unless a different rate of compensation
is provided by law, shall be allowed
(a) Unless otherwise provided by law, a member of any state board or commission:
(1) Receives four dollars per day for each day necessarily employed as such, including the
time spent in going traveling to and returning from the place of meeting location; and
(2) Receives the actual and necessary expenses incurred by them in the discharge of their his
or her duties; and
(3) Does not receive mileage reimbursement. except where it is otherwise specifically
provided no mileage shall be paid. But before payment to any such member of any such
compensation or expenses, he shall make up
(b) Prior to receiving compensation or expense reimbursement:
(1) The member prepares in duplicate and certify to the correctness of an itemized statement
specifying of the number of days spent (giving dates) and of the expenses incurred;
(2) The member certifies the accuracy of the itemized statement;
(3) which statement shall be delivered The member delivers the original to the secretary or
clerk of the institution on behalf of which the duties are performed, the original whereof the secretary
or clerk shall file or preserve in his office, and board or commission for preservation in its office;
and
(4) The secretary or clerk immediately forwards the duplicate of which he shall at once
forward to the Auditor.
(c) If any such member shall willfully make makes a greater charge of such services or
expenses than truth justified, he shall be or she is guilty of embezzlement and punished accordingly.
(d) The governing board of Marshall University and West Virginia University each satisfies
the requirements of subsection (b) of this section by maintaining the member's original itemized,
certified statement and submitting an electronic requisition to the Auditor.
§12-3-8. Requisition on behalf of institutions to be accompanied by statement showing funds
on hand.
No requisition shall be A requisition made upon the Auditor for any money appropriated for
the a penitentiary; state correctional facility; the West Virginia schools School for the Deaf and
Blind; state mental health facilities; state hospitals; corrections facilities; or for Marshall University;
West Virginia University; any other public institution for education, charity or correction; or
institutions governed by the university of West Virginia board of trustees by the board of directors
of the state college system, unless such requisition under the jurisdiction of the Higher Education
Policy Commission or the West Virginia Council for Community and Technical College Education
shall be accompanied by the statement in writing of the treasurer or other a written or electronic
statement of a financial officer of such the institution, showing the amount of money in his or her
hands to the credit of such the institution, or otherwise in its control, on the day such the requisition
is forwarded for payment.
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-23a. Annual professional staff development goals established by State Board;
coordination of professional development programs; program development, approval
and evaluation.
(a) Legislative intent. -- The intent of this section is:
(1) To provide for the coordination of professional development programs by the State
Board; and
(2) To promote high-quality instructional delivery and management practices for a thorough
and efficient system of schools; and
(3) To ensure that the expertise and experience of state institutions of higher education with
teacher preparation programs are included in developing and implementing professional
development programs.
(b) Goals. -- The State Board annually shall establish goals for professional staff
development in the public schools of the state. As a first priority, the State Board shall require
adequate and appropriate professional staff development to ensure high quality teaching that will
enable students to achieve the content standards established for the required curriculum in the public
schools.
The State Board shall submit the goals to the State Department of Education, the Center for
Professional Development, the regional educational service agencies, the Higher Education Policy
Commission and the Legislative Oversight Commission on Education Accountability on or before
the fifteenth day of January each year.
The goals shall include measures by which the effectiveness of the professional staff
development programs will be evaluated. The professional staff development goals may shall
include separate goals for teachers, principals and paraprofessional service personnel and may
include separate goals for classroom aides and others in the public schools.
In establishing the goals, the State Board shall review reports that may indicate a need for
professional staff development including, but not limited to, the report of the Center for Professional
Development created in article three-a, chapter eighteen-a of this code, student test scores on the
statewide student assessment program, the measures of student and school performance for
accreditation purposes, school and school district report cards and its plans for the use of funds in
the strategic staff development fund pursuant to section thirty-two, article two, chapter eighteen of
this code.
(c) The Center for Professional Development shall design a proposed professional staff
development program plan to achieve the goals of the State Board and shall submit the proposed
plan to the State Board for approval as soon as possible following receipt of the State Board goals
each year. In developing and implementing this plan, the Center first shall rely upon the available expertise and experience of state institutions of higher education before procuring advice, technical
assistance or consulting services from sources outside the state.
The proposed plan shall include a strategy for evaluating the effectiveness of the professional
staff development programs delivered under the plan and a cost estimate. The State Board shall
review the proposed plan and return it to the Center for Professional Development noting whether
the proposed plan is approved or is not approved, in whole or in part. If a proposed plan is not
approved in whole, the State Board shall note its objections to the proposed plan or to the parts of
the proposed plan not approved and may suggest improvements or specific modifications, additions
or deletions to address more fully the goals or eliminate duplication. If the proposed plan is not
wholly approved, the Center for Professional Development shall revise the plan to satisfy the
objections of the State Board. State board approval is required prior to implementation of the
professional staff development plan.
(d) The State Board approval of the proposed professional staff development plan shall
establish a Master Plan for Professional Staff Development which shall be submitted by the State
Board to the affected agencies and to the Legislative Oversight Commission on Education
Accountability. The Master Plan shall include the State Board-approved plans for professional staff
development by the State Department of Education, the Center for Professional Development, the
state institutions of higher education and the regional educational service agencies to meet the
professional staff development goals of the State Board. The Master Plan also shall include a plan
for evaluating the effectiveness of the professional staff development delivered through the programs
and a cost estimate.
The Master Plan shall serve as a guide for the delivery of coordinated professional staff
development programs by the State Department of Education, the Center for Professional
Development, the state institutions of higher education and the regional educational service agencies
beginning on the first day of June in the year in which the Master Plan was approved through the
thirtieth day of May in the following year. Provided, That nothing in this section shall This section
does not prohibit changes in the Master Plan, subject to State Board approval, to address staff
development needs identified after the Master Plan was approved.
§18-2-24. Collaboration of state institutions of higher education having a teacher preparation
program with the Center for Professional Development and the regional
education service agencies.
(a) For the purposes of this section 'teacher preparation institution' means a state institution
of higher education with a teacher preparation program.
(b) The intent of this section is to establish a structure to enhance collaboration between the
teacher preparation institutions, the Center for Professional Development and the regional education
service agencies in providing professional development.
(c) The Legislature finds that:
(1) There is insufficient collaboration of the teacher preparation institutions with the Center
for Professional Development and each of the regional education service agencies;
(2) More collaboration would prevent duplication of services and result in higher quality
professional development;
(3) Creating a structure and assigning responsibility would promote more effective
collaboration;
(4) The state's research and doctoral degree-granting public institutions of higher education,
West Virginia University and Marshall University, have the most capacity to be important sources
of research and expertise on professional development;
(5) West Virginia University and Marshall University are the only institutions in the state that
offer course work leading to a doctoral degree in education administration;
(6) As the largest state institutions of higher education, West Virginia University and
Marshall University have more capacity than any other institution in the state to handle the additional
responsibilities assigned in this section;
(7) The coordination by West Virginia University and Marshall University of the efforts of
other teacher preparation institutions to collaborate with the Center for Professional Development
and each of the regional education service agencies will provide points of accountability for the
collaboration efforts of the other institutions; and
(8) The State Board's authority over the regional education service agencies can be used to
motivate the agencies to collaborate with the teacher preparation institutions in providing
professional development and will serve as a point of accountability for the collaboration efforts of
the agencies.
(d) West Virginia University and Marshall University shall collaborate with the Center for
Professional Development in performing the Center's duties. This collaboration shall include at least
the following:
(1) Including the teacher preparation institutions in the proposed professional staff
development program plan required to be submitted to the State Board by section twenty-three-a of
this article;
(2) Providing any available research-based expertise that would be helpful in the design of
the proposed professional staff development program plan;
(3) Providing any available research-based expertise that would be helpful in the
implementation of professional development programs; and
(4) Arranging for other state institutions of higher education having a teacher preparation
program to assist the Center when that assistance would be helpful.
(e) All teacher preparation institutions shall collaborate with the regional education service
agency of the service area in which the institution is located at least to:
(1) Prevent unnecessary duplication of services;
(2) Assist in the implementation of the professional development programs of the regional
education service agency; and
(3) Assist the regional education service agency in obtaining any available grants for
professional development or to apply for any available grant with the agency collaboratively.
(f) Since no teacher preparation institution exists in the service area of Regional Education
Service Agency IV, Marshall University shall collaborate with that Agency for the purposes set forth
in subdivision (e) of this section.
(g) In addition to the collaboration required by subsections (e) and (f) of this section of all
teacher preparation institutions, West Virginia University and Marshall University shall:
(1) Coordinate the collaboration of each of the other teacher preparation institutions in their
designated coordination area with the appropriate regional education service agency. This
coordination at least includes ensuring that each of the other institutions are collaborating with the
appropriate regional education service agency; and
(2) Collaborate with each of the other teacher preparation institutions in their designated
coordination area. This collaboration at least includes providing assistance to the other institutions
in providing professional development and in their collaboration with the appropriate regional
education service agency.
(h) The designated coordination area of West Virginia University includes the service areas
of Regional Education Service Agencies V, VI, VII and VIII. The designated coordination area of
Marshall University includes the service areas of Regional Education Service Agencies I, II, III and
IV.
(i) The State Board shall ensure that each of the regional education service agencies is
collaborating with the teacher preparation institution or institutions in its service area for the
purposes set forth in subsection (e) of this section. Since Regional Education Service Agency IV
does not have a teacher preparation institution in its service area, the State Board shall ensure that
it is collaborating with Marshall University for the purposes set forth in subsection (e) of this section.
(j) Before a regional education service agency, except for Regional Education Service
Agency IV, obtains professional development related services or expertise from any teacher
preparation institution outside of that agency's service area, the agency shall inform the Center for
Professional Development Board. Before Regional Education Service Agency IV obtains
professional development related services or expertise from any teacher preparation institution other
than Marshall University, the agency shall inform the Center Board.
(k) The collaboration and coordination requirements of this section includes collaborating
and coordinating to provide professional development for at least teachers, principals and
paraprofessionals.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-11. Study of professional development standards and best practices.
The Legislative Oversight Commission on Education Accountability shall cause a study to
be conducted to determine and to recommend standards and best practices for professional
development that are focused on advancing student achievement. The study and a final report of
recommendations shall be completed prior to the first day of September, two thousand five. The
Commission shall submit the final report to the Joint Committee on Government and Finance. The
Commission shall determine if resources to assist in the completion of the study are available from
sources other than public funds and shall report such to the Joint Committee.
ARTICLE 3A. CENTER FOR PROFESSIONAL DEVELOPMENT.
§18A-3A-1. Center for Professional Development; intent and mission; Principals Academy
curriculum and expenses; authorization to charge fees.
(a) Teaching is a profession that directly correlates to the social and economic well-being of
a society and its citizens. Superior teaching is essential to a well-educated and productive populace.
Strong academic leadership provided by principals and administrators skilled in modern management
principles is also essential. The intent of this article is to recognize the value of professional
involvement by experienced educators, principals and administrators in building and maintaining
a superior force of professional educators and to establish avenues for applying such this
involvement.
(b) The general mission of the Center is to advance the quality of teaching and management
in the schools of West Virginia through: (1) The implementation primarily of statewide training,
professional staff development, including professional staff development for at least teachers,
principals and paraprofessionals, and technical assistance programs and practices as recommended
by the State Board to assure the highest quality of teaching and management; and (2) the provision
of technical and other assistance and support to regional and local education agencies in identifying
and providing high quality professional staff development, including professional staff development
for at least teachers, principals and paraprofessionals, and training programs and implementing best practices to meet their locally identified needs. The Center also may implement local programs if
the State Board, in its Master Plan for Professional Staff Development established pursuant to
section twenty-three-a, article two, chapter eighteen of this code, determines that there is a specific
local need for the programs. Additionally, the Center shall perform such other duties as are assigned
to it by law.
Nothing in this article shall be construed to require any specific level of funding by the
Legislature.
(c) Subject to subsection (d) of this section, the Center Board shall consist of eleven persons
as follows: The Secretary of Education and the Arts, ex officio, and the State Superintendent, of
schools ex officio, both of whom shall be entitled to vote; three members of the State Board, elected
by the State Board; three experienced educators, of whom two shall be working classroom teachers
and one of whom shall be a school or county administrator appointed by the Governor by and with
the advice and consent of the Senate, all of whom shall be experienced educators who have achieved
recognition for their superior knowledge, ability and performance in teaching or management, as
applicable; and three citizens of the state, one of whom shall be a representative of public higher
education and all of whom shall be knowledgeable in matters relevant to the issues addressed by the
Center, including, but not limited to, professional development and management principles,
appointed by the Governor by and with the advice and consent of the Senate. Not more than two
appointees shall be residents within the same congressional district. The Center Board shall be
cochaired by the Secretary of Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board
may serve no more than two consecutive two-year terms. The State Board shall elect another
member to fill the unexpired term of any person so elected who subsequently vacates State Board
membership. Of the initial appointed members, three shall be appointed for one-year terms and three
shall be appointed for two-year terms. All successive appointments shall be for two-year terms. An
experienced educator may serve no more than two consecutive two-year terms. The Governor shall
appoint a new member to fill the unexpired term of any vacancy in the appointed membership.
(d) On the first day of July, two thousand five, the Center for Professional Development
Board shall be reconstituted, all terms of elected and appointed members expire on that date, the
provisions of subsection (c) of this section are void and the provisions of this subsection become
effective. The Center Board shall consist of thirteen persons as follows: The Secretary of Education
and the Arts, ex officio, and the State Superintendent, ex officio, both of whom shall be entitled to
vote; two members of the State Board, elected by the State Board; one person employed by West
Virginia University and one person employed by Marshall University, both of whom shall be
appointed by the President of the employing institution, both of whom are faculty in the teacher
education section of the employing institution and both of whom are knowledgeable in matters
relevant to the issues addressed by the Center
;
one regional education service agency executive
director, elected by all of the regional education service agency executive directors; three
experienced educators, one of whom shall be a working classroom teacher, one of whom shall be
a school principal and one of whom shall be a county administrator, all of whom shall be appointed
by the Governor by and with the advice and consent of the Senate, all of whom shall be experienced
educators who have achieved recognition for their superior knowledge, ability and performance in
teaching or management, as applicable, and all of whom are knowledgeable in matters relevant to
the issues addressed by the Center; and three citizens of the state, all of whom shall be
knowledgeable in matters relevant to the issues addressed by the Center, including, but not limited
to, professional development and management principles, appointed by the Governor by and with
the advice and consent of the Senate. Not more than two gubernatorial appointees shall be residents
within the same congressional district. The Center Board shall be cochaired by the Secretary of
Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board
may serve no more than two consecutive two-year terms. The State Board shall elect another
member to fill the unexpired term of any person so elected who subsequently vacates State Board
membership. If the executive director elected by the regional education service agency executive
directors ceases to be employed in that capacity, the regional education service agency executive directors shall elect another executive director to fill the unexpired term. Of the initial members
appointed by the Governor, three shall be appointed for one-year terms and three shall be appointed
for two-year terms. All successive appointments by the Governor shall be for two-year terms. An
experienced educator may serve no more than two consecutive two-year terms. The Governor shall
appoint a new member to fill the unexpired term of any vacancy in the appointed membership. The
members appointed by the Presidents of West Virginia University and Marshall University shall
serve two-year terms. If the person employed by West Virginia University or the person employed
by Marshall University ceases to be employed by the institution for which they were employed, the
president of that institution shall appoint another employee to fill the unexpired term.
(d) (e) The Center for Professional Development Board shall meet at least quarterly and the
appointed members shall be reimbursed for reasonable and necessary expenses actually incurred in
the performance of their official duties from funds appropriated or otherwise made available for such
those purposes upon submission of an itemized statement therefor.
(e) (f) Subject to subsection (g) of this section, from appropriations to the Center for
Professional Development, the Center Board shall employ and fix the compensation of an Executive
Director with knowledge and experience in professional development and management principles
and such other staff as may be necessary to carry out the mission and duties of the Center. The
Executive Director shall serve at the will and pleasure of the Center Board. The Executive Director
of the Center also shall serve as the chair of the Principals Standards Advisory Council created in
section two-c, article three of this chapter and shall convene regular meetings of this council to
effectuate the purposes of this council.
(g) Effective the first day of July, two thousand five, the position of Executive Director is
abolished, the provisions of subsection (f) of this subsection are void and the provisions of this
subsection become effective. The Governor shall appoint, by and with the advice and consent of the
Senate, a Chief Executive Officer with knowledge and experience in professional development and
management principles. From appropriations to the Center for Professional Development, the Center
Board sets the salary of the Chief Executive Officer. The Center Board, upon the recommendation
of the Chief Executive Officer, may employ other staff necessary to carry out the mission and duties of the Center. The Chief Executive Officer serves at the will and pleasure of the Governor.
Annually, the Center Board shall evaluate the Chief Executive Officer, and shall report the results
to the Governor. Any reference in this code to the Executive Director of the Center for Professional
Development means the position of Chief Executive Officer established in this subsection. The
duties of the Chief Executive Officer include the following:
(1) Managing the daily operations of the Center;
(2) Ensuring the implementation of the Center's mission;
(3) Ensuring collaboration of the Center with other professional development providers;
(4) Requesting from the Governor and the Legislature any resources or statutory changes that
would help in enhancing the collaboration of all professional development providers in the state, in
advancing the quality of professional development through any other means or both;
(5) Serving as the chair of the Principals Standards Advisory Council created in section
two-c, article three of this chapter and convening regular meetings of this Council to effectuate the
purposes of this Council; and
(5) Other duties as assigned by the Governor or the Center Board.
(h) When practicable, personnel employed by state higher education agencies and state,
regional and county public education agencies shall be made available to the Center to assist in the
operation of projects of limited duration, subject to the provisions of section twenty-four, article two,
chapter eighteen.
(f) (i) The Center shall assist in the delivery of programs and activities pursuant to this article
to meet statewide, and if needed as determined by the goals and Master Plan for Professional Staff
Development established by the State Board pursuant to section twenty-three-a, article two, chapter
eighteen of this code, the local professional development needs of paraprofessionals, teachers,
principals and administrators and may contract with existing agencies or agencies created after the
effective date of this section or others to provide training programs in the most efficient manner.
Existing programs currently based in agencies of the state shall be continued in the agency of their
origin unless the Center establishes a compelling need to transfer or cancel the existing program. The Center shall recommend to the Governor the transfer of funds to the providing agency, if
needed, to provide programs approved by the Center.
(g) (j) The Center for Professional Development shall implement training and professional
development programs for the Principals Academy based upon the minimum qualities, proficiencies
and skills necessary for principals in accordance with the standards established by the State Board
pursuant to the terms of section two-c, article three of this chapter.
(h) (k) In accordance with section two-c, article three of this chapter, the Center shall be
responsible for paying reasonable and necessary expenses for persons attending the Principals
Academy: Provided, That nothing in this section shall be construed to require any specific level of
funding by the Legislature.
(i) (l) Persons attending the professional development offerings of the Center and such other
courses and services as shall be offered by the Center for Professional Development, except the
Principals Academy shall be assessed fees which shall be less than the full cost of attendance. There
is hereby created in the State Treasury a special revenue account known as the 'Center for
Professional Development Fund'. All moneys collected by the Center shall be deposited in the fund
for expenditure by the Center Board for the purposes specified in this section. Moneys remaining
in the fund at the end of the fiscal year are subject to reappropriation by the Legislature.
(m) The Center Board shall make collaboration with the State Board in the following areas
a priority:
(1) In providing professional development services to those public schools selected by the
State Superintendent pursuant to section three-g, article two-e, chapter eighteen of this code; and
(2) In providing professional development services in any specific subject matter area in
which the State Board, the Legislature or both determines that an initiative in that area is justified
due to a need to increase student achievement in that specific area.
(n) The Center Board shall conduct a professional development study and report any
recommendations to the Governor and the Legislative Oversight Commission on Education
Accountability prior to the first day of January, two thousand six. The recommendations may include legislation to change existing code if necessary. The study shall include at least the
following issues:
(1) The extent to which the collaboration between the state higher education institutions with
teacher preparation programs and the regional education service agencies should include offering
follow-up professional development to the professional development programs offered during the
previous summer;
(2) The items that the State Board should consider in establishing the professional
development goals pursuant to section twenty-three-a, article two, chapter eighteen of this code and
the priority in which the items should be considered; and
(3) Any potential changes that would enhance the effectiveness of training offered by the
Principals Academy.
§18A-3A-2b. The Principals Academy.
(a) There is hereby established within the Center for Professional Development the
'Principals Academy'. Training through the Principals Academy shall include at least the following:
(a) (1) Training designed to build within principals the minimum qualities, proficiencies and
skills that will be required of all principals pursuant to the rules of the State Board;
(b) (2) Specialized training and professional development programs for all principals; and
(c) (3) Specialized training and professional development programs for the following
principals:
(1) (A) Newly appointed principals;
(2) (B) Principals whose schools have been designated as seriously impaired, which programs
shall commence as soon as practicable following the designation;
(3) (C) Principals subject to improvement plans; and
(4) (D) Principals of schools with significantly different grade level configurations.
(b) The Legislature finds that the quality of the principal of a school is one of the most
important factors in determining the academic achievement of students and that well-trained, highly
qualified principals should be a priority for the state. The Legislature further finds that, although the
Principal's Academy has been effective in training quality leaders of the state's public schools, the training provided is such an important factor in determining the success of the public schools that
the creation of a new position to coordinate and focus primarily on the Principal's Academy to even
further increase the quality of the training is needed. Therefore, effective the first day of July, two
thousand five, from appropriations to the Center for Professional Development, the Center Board
shall employ and fix the compensation of a Coordinator of the Principals Academy. The Coordinator
shall serve at the will and pleasure of the Center Board. It is the duty of the Coordinator, subject to
direction and oversight by the Center and the Chief Executive Officer, to lead the Principal's
Academy, to focus primarily on the Principals Academy and to make a continuous effort to further
enhance the quality of the training and professional development programs of the Academy. The
Center Board, the Chief Executive Officer or both may assign duties to the coordinator other than
relate to the Principals Academy so long as the Coordinator is able to primarily focus on the
Principals Academy.
§18A-3A-6. Attendance outside the employment term.
A professional educator may not be required to attend the principals academy or any other
program offered through the Center for Professional Development outside his or her employment
term. A professional educator may attend the academy or other program outside his or her
employment term by mutual agreement between the Center, the educator, and his or her employer.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-3. Transfer of powers, duties, property, obligations, etc.
(a) All powers, duties and authorities transferred to the Board of Regents pursuant to former
provisions of chapter eighteen of this code and transferred to the Board of Trustees and Board of
Directors which were created as the governing boards pursuant to the former provisions of this
chapter and all powers, duties and authorities of the Board of Trustees and Board of Directors, to the
extent they are in effect on the seventeenth day of June, two thousand, are hereby transferred to the
Interim Governing Board created in article one-c of this chapter and shall be exercised and
performed by the Interim Governing Board until the first day of July, two thousand one, as such
powers, duties and authorities may apply to the institutions under its jurisdiction.
(b) Title to all property previously transferred to or vested in the Board of Trustees and the
Board of Directors and property vested in either of the Boards separately, formerly existing under
the provisions of this chapter, are hereby transferred to the Interim Governing Board created in
article one-c of this chapter until the first day of July, two thousand one. Property transferred to or
vested in the Board of Trustees and Board of Directors shall include:
(1) All property vested in the Board of Governors of West Virginia University and transferred
to and vested in the West Virginia Board of Regents;
(2) All property acquired in the name of the State Board of Control or the West Virginia
Board of Education and used by or for the state colleges and universities and transferred to and
vested in the West Virginia Board of Regents;
(3) All property acquired in the name of the State Commission on Higher Education and
transferred to and vested in the West Virginia Board of Regents; and
(4) All property acquired in the name of the Board of Regents and transferred to and vested
in the respective Board of Trustees and Board of Directors.
(c) Each valid agreement and obligation previously transferred to or vested in the Board of
Trustees and Board of Directors formerly existing under the provisions of this chapter is hereby
transferred to the Interim Governing Board until the first day of July, two thousand one, as those
agreements and obligations may apply to the institutions under its jurisdiction. Valid agreements
and obligations transferred to the Board of Trustees and Board of Directors shall include:
(1) Each valid agreement and obligation of the Board of Governors of West Virginia
University transferred to and deemed the agreement and obligation of the West Virginia Board of
Regents;
(2) Each valid agreement and obligation of the State Board of Education with respect to the
state colleges and universities transferred to and deemed the agreement and obligation of the West
Virginia Board of Regents;
(3) Each valid agreement and obligation of the State Commission on Higher Education
transferred to and deemed the agreement and obligation of the West Virginia Board of Regents; and
(4) Each valid agreement and obligation of the Board of Regents transferred to and deemed
the agreement and obligation of the respective Board of Trustees and Board of Directors.
(d) All orders, resolutions and rules adopted or promulgated by the respective Board of
Trustees and Board of Directors and in effect immediately prior to the first day of July, two
thousand, are hereby transferred to the Interim Governing Board until the first day of July, two
thousand one, and shall continue in effect and shall be deemed the orders, resolutions and rules of
the Interim Governing Board until rescinded, revised, altered or amended by the Commission or the
governing boards in the manner and to the extent authorized and permitted by law. Such orders,
resolutions and rules shall include:
(1) Those adopted or promulgated by the Board of Governors of West Virginia University
and in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless
and until rescinded, revised, altered or amended by the Board of Regents in the manner and to the
extent authorized and permitted by law;
(2) Those respecting state colleges and universities adopted or promulgated by the West
Virginia Board of Education and in effect immediately prior to the first day of July, one thousand
nine hundred sixty-nine, unless and until rescinded, revised, altered or amended by the Board of
Regents in the manner and to the extent authorized and permitted by law;
(3) Those adopted or promulgated by the State Commission on Higher Education and in
effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and
until rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent
authorized and permitted by law; and
(4) Those adopted or promulgated by the Board of Regents prior to the first day of July, one
thousand nine hundred eighty-nine, unless and until rescinded, revised, altered or amended by the
respective Board of Trustees or Board of Directors in the manner and to the extent authorized and
permitted by law.
(e) Title to all real property transferred to or vested in the Interim Governing Board pursuant
to this section of the code is hereby transferred to the Commission effective the first day of July, two
thousand one. The board of governors for each institution may request that the Commission transfer title to the board of governors of any real property specifically identifiable with that institution or
the Commission may initiate the transfer. Any such request must be made within two years of the
effective date of this section and be accompanied by an adequate legal description of the property.
In the case of real property that is specifically identifiable with Marshall University or West Virginia
University, the Commission shall transfer title to all real property, except real property that is used
jointly by institutions or for statewide programs under the jurisdiction of the Commission or the
Council, to the Board of Governors of Marshall University or West Virginia University, as
appropriate, upon receipt of a request from the appropriate governing board accompanied by an
adequate legal description of the property.
The title to any real property that is jointly utilized by institutions or for statewide programs
under the jurisdiction of the Commission or the Council shall be retained by the Commission.
(f) Ownership of or title to any other property, materials, equipment or supplies obtained or
purchased by the Interim Governing Board or the previous governing boards on behalf of an
institution is hereby transferred to the board of governors of that institution effective the first day of
July, two thousand one.
(g) Each valid agreement and obligation previously transferred or vested in the Interim
Governing Board and which was undertaken or agreed to on behalf of an institution or institutions
is hereby transferred to the board of governors of the institution or institutions for whose benefit the
agreement was entered into or the obligation undertaken effective the first day of July, two thousand
one.
(1) The obligations contained in revenue bonds issued by the previous governing boards
under the provisions of section eight, article ten of this chapter and article twelve-b, chapter eighteen
of this code are hereby transferred to the Commission and each institution shall transfer to the
Commission those funds the Commission determines are necessary to pay that institution's share of
bonded indebtedness.
(2) The obligations contained in revenue bonds issued on behalf of a state institution of
higher education pursuant to any other section of this code is hereby transferred to the board of
governors of the institution on whose behalf the bonds were issued.
(h) All orders, resolutions, policies and rules:
(1) Adopted or promulgated by the respective Board of Trustees, Board of Directors or
Interim Governing Board and in effect immediately prior to the first day of July, two thousand one,
are hereby transferred to the Commission effective the first day of July, two thousand one, and
continue in effect until rescinded, revised, altered, amended or transferred to the governing boards
by the Commission as provided in this section and in section six of this article.
(2) Adopted or promulgated by the Commission relating solely to community and technical
colleges or community and technical college education, or rules which the Council finds necessary
for the exercise of its lawful powers and duties pursuant to the provisions of this chapter, may be
adopted by the Council and continue in effect until rescinded, revised, altered, amended or
transferred to the governing boards under the jurisdiction of the Council pursuant to section six of
this article. Nothing in this section requires the initial rules of the Commission that are adopted by
the Council to be promulgated again under the procedure set forth in article three-a, chapter
twenty-nine-a of this code unless such rules are rescinded, revised, altered or amended.
(3) Adopted or promulgated by the Commission relating to multiple types of public
institutions of higher education or community and technical college education as well as
baccalaureate and post-baccalaureate education are transferred to the Council in part as follows:
(A) That portion of the rule relating solely to community and technical colleges or
community and technical college education is transferred to the Council and continues in effect until
rescinded, revised, altered, amended or transferred to the governing boards by the Council as
provided in this section and in section six of this article;
(B) That portion of the rule relating to institutions or education other than community and
technical colleges is retained by the Commission and continues in effect until rescinded, revised,
altered, amended or transferred to the governing boards by the Commission as provided in this
section and in section six of this article.
(i) The Commission may, in its sole discretion, transfer any rule, other than a legislative rule,
to the jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise, alter or amend any rule so transferred pursuant to rules adopted by the Commission pursuant
to section six of this article.
The Council may, in its sole discretion, transfer any rule, other than a legislative rule, to the
jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise,
alter or amend any rule so transferred pursuant to rules adopted by the Council pursuant to section
six of this article.
(j) As to any title, agreement, obligation, order, resolution, rule or any other matter about
which there is some uncertainty, misunderstanding or question, the matter shall be summarized in
writing and sent to the Commission which shall make a determination regarding such matter within
thirty days of receipt thereof.
(k) Rules or provisions of law which refer to other provisions of law which were repealed,
rendered inoperative or superseded by the provisions of this section shall remain in full force and
effect to such extent as may still be applicable to higher education and may be so interpreted. Such
references include, but are not limited to, references to sections and prior enactments of article
twenty-six, chapter eighteen of this code and code provisions relating to retirement, health insurance,
grievance procedures, purchasing, student loans and savings plans. Any determination which needs
to be made regarding applicability of any provision of law shall first be made by the Commission.
§18B-1-6. Rulemaking.
(a) The Commission is hereby empowered to promulgate, adopt, amend or repeal rules, in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code, subject to the
provisions of section three of this article.
(b) The Council is hereby empowered to promulgate, adopt, amend or repeal rules, in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code and subject to
the provisions of section three of this article. This grant of rule-making power extends only to those
areas over which the Council has been granted specific authority and jurisdiction by law.
(c) As it relates to the authority granted to governing boards of state institutions of higher
education to promulgate, adopt, amend or repeal any rule under the provisions of this code:
(1) 'Rule' means any regulation, guideline, directive, standard, statement of policy or
interpretation of general application which has institutionwide effect or which affects the rights,
privileges or interests of employees, students or citizens. Any regulation, guideline, directive,
standard, statement of policy or interpretation of general application that meets this definition is a
rule for the purposes of this section.
(2) Regulations, guidelines or policies established for individual units, divisions, departments
or schools of the institution, which deal solely with the internal management or responsibilities of
a single unit, division, department or school or with academic curricular policies that do not
constitute a mission change for the institution, are excluded from this subsection, except for the
requirements relating to posting.
(c) (3) The Commission and Council each shall promulgate a rule to guide the development
and approval of rules guidelines and other policy statements made by their respective governing
boards, including the governing boards of Marshall University and West Virginia University. The
rules promulgated by the Commission and Council shall include, but are not limited to, the following
provisions which shall be included in the rule on rules adopted by each governing board of a state
institution of higher education:
(1) (A) A procedure to ensure that public notice is given and that the right of interested
parties to have a fair and adequate opportunity to respond is protected, including providing for a
thirty-day public comment period prior to final adoption of a rule;
(2) (B) Designation of a single location where all proposed and approved rules, guidelines
and other policy statements are posted and can be accessed by the public; and
(3) (C) A procedure to maximize internet access to all proposed and approved rules,
guidelines and other policy statements to the extent technically and financially feasible.
(d) On and after the effective date of this section, and notwithstanding any other provision
of this code to the contrary, any rule heretofore required by law to be promulgated as a legislative
rule prior to the first day of July, two thousand one, may not be considered to be a legislative rule
for the purposes of article three-a, chapter twenty-nine-a of this code except for the following:
(1) The legislative rule required by subsection (c), section eight of this article;
(2) The legislative rule required by section eight-a of this article;
(3) The legislative rule required by section two, article one-a of this chapter;
(4) The legislative rule required by section four, article one-b of this chapter;
(5) The legislative rule required by section one, article three, chapter eighteen-c of this code;
(6) The legislative rule required by section one, article four, chapter eighteen-c of this code;
(7) The legislative rule required by section seven, article five, chapter eighteen-c of this code;
and
(8) The legislative rule required by section one, article six, chapter eighteen-c of this code.
(e) (d) Nothing in this section requires that any rule reclassified or transferred by the
Commission or the Council under this section be promulgated again under the procedures set out in
article three-a, chapter twenty-nine-a of this code unless the rule is amended or modified.
(f) (e) The Commission and Council each shall file with the Legislative Oversight
Commission on Education Accountability any rule it proposes to promulgate, adopt, amend or repeal
under the authority of this article.
(f) The governing boards of Marshall University and West Virginia University, respectively,
shall promulgate and adopt any rule which they are required to adopt by this chapter or chapter
eighteen-c of this code no later than the first day of July, two thousand six. On and after this date:
(1) Any rule of either governing board which meets the definition set out in subsection (c)
of this section and which has not been promulgated and adopted by formal vote of the appropriate
governing board is void and may not be enforced;
(2) Any authority granted by this code which inherently requires the governing board to
promulgate and adopt a rule is void until the governing board complies with the provisions of this
section.
(3) Within thirty days of the adoption of a rule, including repeal or amendment of an existing
rule, the governing boards of Marshall University and West Virginia University, respectively, shall
furnish to the Commission or the Council, as appropriate, a copy of each rule which has been
formally adopted;
(g) Not later than the first day of October, two thousand five, and annually thereafter, each
governing board of a state institution of higher education shall file with the Commission or the
Council, as appropriate, a list of all institutional rules that were in effect for that institution on the
first day of July of that year, including the most recent date on which each rule was considered and
adopted, amended or repealed by the governing board. For all rules adopted, amended or repealed
after the effective date of this section, the list shall include a statement by the chair of the governing
board certifying that the governing board has complied with the provisions of this section when each
listed rule was adopted.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST
VIRGINIA.
§18B-1A-2. Institutional compacts with state institutions of higher education; establishment
and review process.
(a) Each state college and university shall prepare an institutional compact for submission
to the Commission. Each community and technical college shall prepare an institutional compact
for submission to the Council. When the process herein provided is completed, the institutional
compacts shall form the agreements between the institutions of higher education and the
Commission or Council, respectively, and, ultimately, between the institutions of higher education
and the people of West Virginia on how the institutions will use their resources to address the intent
of the Legislature and the goals set forth in section one-a, article one of this chapter. The compacts
shall contain the following:
(1) A step-by-step process to accomplish the intent of the Legislature and the goals set forth
in section one-a, article one of this chapter as organized by the Commission and Council. The
step-by-step process shall be delineated by objectives and shall set forth a time line for achieving the
objectives which shall, where applicable, include benchmarks to measure institutional progress as
defined in subsection (e) of this section.
(2) A determination of the mission of the institution which specifically addresses changes,
as applicable, in the areas of research, graduate education, baccalaureate education, revised
admission requirements, community and technical colleges and such other areas as the Commission or Council determines appropriate. In the determination of mission, the institutions and the
Commission or Council shall consider the report completed by the national center for higher
education management systems pursuant to the legislative study as provided in section seven, article
three of this chapter;
(3) A plan which is calculated to make any changes in institutional mission and structure
within a six-year period;
(4) A statement of the geographic areas of responsibility, where applicable, for each goal to
be accomplished as provided in subsection (d) of this section;
(5) A detailed statement of how the compact is aligned with and will be implemented in
conjunction with the master plan of the institution;
(6) Such other items, requirements or initiatives, required by the Commission or Council,
designed to accomplish the intent of the Legislature and the goals set forth in section one-a, article
one of this chapter or other public policy goals established by the Commission or Council.
(b) Each institutional compact shall be updated annually and shall follow the same general
guidelines contained in subsection (a) of this section.
(c) Development and updating of the institutional compacts is subject to the following:
(1) The ultimate responsibility for developing and updating the institutional compacts at the
institutional level resides with the institutional board of advisors or the board of governors, as
appropriate;
(2) The ultimate responsibility for developing and adopting the final version of the state
college and university institutional compacts resides with the Commission. The ultimate
responsibility for developing and adopting the final version of the community and technical college
institutional compacts resides with the Council;
(3) Each institution shall submit its compact to the Commission or Council annually by the
fifteenth day of November;
(4) The Commission and Council shall review each compact of the institutions under their
respective jurisdictions and either adopt the compact or return it with specific comments for change or improvement. The Commission and Council, as appropriate, shall continue this process as long
as each the Commission or Council as applicable, considers advisable;
(5) By the first day of May annually, if the institutional compact of any institution as
presented by that institution is not adopted by the Commission, or Council, then the Commission or
Council is empowered and directed to develop and adopt the institutional compact for the institution
and the institution is bound by the compact so adopted; and
(6) As far as practicable, the Commission and Council each shall establish uniform processes
and forms for the development and submission of the institutional compacts by the institutions under
their respective jurisdictions, including the state institutions of higher education known as Marshall
University and West Virginia University. As a part of this function, the Commission and Council
shall organize the statements of legislative intent and goals contained in section one-a, article one
of this chapter in a manner that facilitates the purposes of this subdivision and the purposes of this
section.
(d) Assignment of geographic areas of responsibility. --
(1) The Commission and Council shall assign geographic areas of responsibility to the state
institutions of higher education under their respective jurisdictions its jurisdiction, except for the
state institutions of higher education known as Marshall University and West Virginia University.
For institutions other than the state institutions of higher education known as Marshall University
and West Virginia University, the geographic areas of responsibility are made as a part of their
institutional compacts to ensure that all areas of the state are provided necessary programs and
services to achieve the public policy agenda.
(2) Pursuant to the provisions of section four, article three-c of this chapter, the Council shall
assign geographic areas of responsibility to the state institutions of higher education under its
jurisdiction, including the administratively linked institution known as Marshall Community and
Technical College, the administratively linked institution known as the Community and Technical
College at West Virginia University Institute of Technology and the regional campus known as West
Virginia University at Parkersburg.
(3) The geographic areas of responsibility for the state institutions of higher education known
as Marshall University and West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts shall include measures of
programs and services by geographic area throughout the assigned geographic area of responsibility.
(e) The compacts shall contain benchmarks used to determine progress toward meeting the
goals established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be as objective as possible;
(2) They shall be directly linked to the goals in the compacts;
(3) They shall be measured by the indicators described in subsection (f) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of
responsibility.
(f) The Commission and Council each shall establish by legislative rule indicators which
measure the degree to which the goals and objectives set forth in section one-a, article one of this
chapter are being addressed and met by the institutions under their respective jurisdictions. The
benchmarks established in subsection (e) of this section shall be measured by the indicators.
(1) The Legislature finds that an emergency exists; therefore, not later than the first day of
October, two thousand four, the Council shall file as an emergency rule a legislative rule pertaining
to benchmarks and indicators in accordance with the provisions of article three-a, chapter
twenty-nine-a of this code. The rule rules pertaining to benchmarks and indicators in effect for the
Commission and the Council at the time of on the effective date of this section remains remain in
effect for the institutions under its jurisdiction their respective jurisdictions, including the state
institutions of higher education known as Marshall University and West Virginia University.
(2) The legislative rules shall set forth at the least the following as pertains to all state
institutions of higher education:
(A) The indicators used to measure the degree to which the goals and objectives are being
met;
(B) Uniform definitions for the various data elements to be used in establishing the
indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to:
(i) Provide measurable evidence that the pursuits of the institution are targeting the
educational needs of the citizens of the state and the components of the compacts and master plans;
(ii) Delineate the goals and benchmarks for an institution so that the Commission, or Council
or Legislative Oversight Commission can precisely measure the degree to which progress is being
made toward achieving the goals for post-secondary education provided in section one-a, article one
of this chapter; and
(iii) Distinctly identify specific goals within the master plan or compact of an institution that
are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the legislative rule established by the Council shall
set forth at the least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify:
(i) The degree to which progress is being made by institutions toward meeting the goals for
post-secondary education and the essential conditions provided in section three, article three-c of this
chapter;
(ii) Information and data necessary to be considered by the Council in making the
determination required by section three, article two-c of this chapter;
(iii) The degree to which progress is being made in the areas considered by the Council for
the purpose of making the determination required by section three, article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to
support an objective determination by the Council that an institution's progress toward achieving the
goals for post-secondary education and the essential conditions is so deficient that implementation
of the provisions of section four, article two-c of this chapter is warranted and necessary.
(g) The Commission or the Council, as appropriate, shall approve the master plans developed
by the boards of governors and the institutional boards of advisors pursuant to section four, article
two-a of this chapter or section one, article six of this chapter, as appropriate.
§18B-1A-6. Graduate education.
(a) Intent. -- It is the intent of the Legislature to address the need for high quality graduate
education programs to be available throughout the state.
(b) Findings. -- The Legislature makes the following findings:
(1) Since West Virginia ranks below its competitor states in graduate degree production,
particularly in the areas that are important to the state's competitive position in the new economy of
the twenty-first century, there is a considerable need for greater access to graduate education,
especially at the master's degree level;
(2) There is a significant disparity in access to part-time graduate degree programs among
the different regions of the state and part-time graduate enrollments are heavily concentrated in the
counties immediately surrounding Marshall University and West Virginia University;
(3) There is a particular need for increased access to graduate programs linked directly to the
revitalization of the regional economies of the state; and
(4) There is a particular need for improved quality and accessibility of preservice and
in-service programs for teachers in subject matter fields.
(c) In order to meet the need for graduate education, the Commission shall be is responsible
for accomplishing the following:
(1) Ensuring that West Virginia University and Marshall University expand assist in the
expansion of access to master's degree programs throughout West Virginia. with. These institutions
shall place a strong emphasis on collaboration with the baccalaureate colleges and community and
technical colleges in each region when funds are available;
(2) Ensuring that any institution providing a master's degree program under the provisions
of this section provides a meaningful, coherent program by offering courses in such a way that
students, including place-bound adults, have ample opportunity to complete a degree in a reasonable
period of time;
(3) Focusing on providing courses that enhance the professional skills of teachers in their
subject areas; and
(4) Ensuring that programs are offered in the most cost-effective manner to expand access
throughout the region and the state; and
(5) Determining the graduate program needs of each region.
(d) Bluefield State College, Concord College University, Fairmont State College University,
Glenville State College, Shepherd College University, West Liberty State College and West Virginia
State College University shall meet the need for graduate education in their regions by following the
procedures outlined below pursuant to this subsection and subsection (c) of this section.
(1) If an institution's proposal to offer a Master's degree receives the approval of the
institution's regional accrediting association, that Master's degree may be offered solely by the
institution.
(2) If an institution does not receive the approval of its regional accrediting association for
a proposal to offer a Master's degree, that institution may broker or collaborate with another higher
education institution to develop a revised proposal for offering that brokered or collaborative
Master's degree.
(1) The institutions shall develop as graduate centers for their regions to broker access to
graduate programs by contracting with accredited colleges and universities in and out of the state.
These programs shall be related directly to each region's education and economic needs.
(2) The institutions may begin collaborative programs with other institutions leading to the
granting of master's degrees in selected areas that are demonstrated to be related directly to the needs
of their regions and that draw on faculty strengths. An institution may continue to offer collaborative
programs aimed at meeting the documented needs with the approval of the Commission or, if a
sustained need still exists, the institution may move to the next level.
(3) If the graduate education needs of the region have not been met through brokering and
collaborative programs, the institution may explore the option of beginning its own graduate-level
program leading to the granting of a master's degree. The institution may begin its own master's
degree program if it can meet the following conditions as determined by the Commission:
(A) Demonstrate that the institution has successfully completed each of the steps required
before exploring development of its own master's degree program;
(B) Provide evidence based on experience gained in the brokering and collaborative
arrangements that a sustained demand exists for the program;
(C) Demonstrate that the baccalaureate institution has the capacity to provide the program;
(D) Demonstrate that the core mission of the baccalaureate institution will not be impaired
by offering the graduate program;
(E) Provide evidence that the graduate program has a reasonable expectation of being
accredited;
(F) Demonstrate that the need documented in subdivision (B) of this subsection is not
currently being met by any other state institution of higher education; and
(G) The Commission may designate one of the institutions listed in subsection (d) of this
section to develop and implement no more than four of its own masters level programs as a pilot
project: Provided, That the selected institution shall move toward and achieve regional accreditation
of the master's program within a reasonable time as determined by the Commission. The institution
shall be selected based on the following:
(i) Sufficient credentialed faculty to offer quality programs in the areas selected;
(ii) Sufficient unmet demand for the programs; and
(iii) Sustainable unmet demand based on generally accepted projections for population
growth in the region served by the institution.
The programs authorized by this clause may not be restricted by the provisions of
subdivisions (1), (2) and (3) of this subsection nor by the provisions of subsection (e) of this section.
(e) There is an urgent need for master's degree programs for teachers in disciplines or subject
areas, such as mathematics, science, history, literature, foreign languages and the arts. Currently,
master's-level courses in education that are offered in the regions served by the state universities are
primarily in areas such as guidance and counseling, administration, special education and other
disciplines unrelated to teaching in subject areas. If this need is not being met in a region through
the procedure established in subsection (d) of this section, then the graduate center in that region may
plan a master's degree program in education focused on teaching in subject area fields in which the
demand is not being met. No institution may begin a graduate program under the provisions of this
section until the program has been reviewed and approved by the Commission. The Commission
shall approve only those programs, as authorized by this subsection, that emphasize serving the needs of teachers and schools in the colleges' immediate regions. In determining whether a program
should be approved, the Commission also shall rely upon the recommendations of the statewide task
force on teacher quality provided for in section eight, article fourteen of this chapter.
(f) The Commission shall review all graduate programs being offered under the provisions
of this section and, using the criteria established for program startup in subsection (d) of this section,
determine which programs should be discontinued.
(g) At least annually At least biennually beginning two thousand seven and continuing
through two thousand thirteen, the governing boards shall evaluate graduate programs developed
pursuant to the provisions of this section and report to the Commission on the following:
(1) The number of programs being offered and the courses offered within each program;
(2) The disciplines in which programs are being offered;
(3) The locations and times at which courses are offered;
(4) The number of students enrolled in the program; and
(5) The number of students who have obtained master's degrees through each program.
The governing boards shall provide the Commission with any additional information the
Commission requests in order to make a determination on the viability of a program.
(h) In developing any graduate program under the provisions of this section, institutions shall
consider delivering courses at times and places convenient to adult students who are employed full
time. Institutions shall place an emphasis on extended degree programs, distance learning and
off-campus centers which utilize the cost-effective nature of extending existing university capacity
to serve the state rather than duplicating the core university capacity and incurring the increased cost
of developing master's degree programs at other institutions throughout the state.
(i) Brokering institutions shall invite proposals from other public institutions of higher
education for service provision prior to contracting with other institutions: Provided, That if
institutions propose providing graduate programs in service areas other than in their responsibility
district, the institution seeking to establish a program shall work through the district's lead institution
in providing those services.
(j) In addition to the approval required by the Commission, authorization for any institution
to offer a master's degree program under the provisions of this section is subject to the formal
approval processes established by the governing boards.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of higher education policy Commission.
(a) The primary responsibility of the Commission is to develop, establish and implement
policy that will achieve the goals and objectives found in section one-a, article one of this chapter.
The Commission shall exercise its authority and carry out its responsibilities in a manner that is
consistent and not in conflict with the powers and duties assigned by law to the West Virginia
Council for community and technical college education and the powers and duties assigned to the
governing boards of Marshall University and West Virginia University, respectively. To that end,
the Commission has the following powers and duties relating to the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article
one-a of this chapter to address major challenges facing the state, including, but not limited to, the
goals and objectives found in section one-a, article one of this chapter and including specifically
those goals and objectives pertaining to the compacts created pursuant to section two, article one-a
of this chapter and to develop and implement the master plan described in section nine of this article
for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly with the Council of a financing
policy for higher education in West Virginia, except that the governing boards of Marshall
University and West Virginia University each shall develop a financing policy for the state
institutions of higher education known as Marshall University and West Virginia University,
respectively, without the approval of the Commission. Each The policy shall meet the following
criteria:
(A) Provide an adequate level of education and general funding for institutions pursuant to
section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and deferred maintenance;
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda,
including, but not limited to, those found in section one-a, article one of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen capacity for support of community
and technical college education established by the West Virginia Council for Community and
Technical College Education pursuant to the provisions of section six, article two-b of this chapter;
(3) In collaboration with the Council, create a policy leadership structure capable of the
following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the Commission and Council shall seek input from
the Legislature and the Governor and specifically from the State Board of Education and local school
districts in order to create the necessary linkages to assure smooth, effective and seamless movement
of students through the public education and post-secondary education systems and to ensure that
the needs of public school courses and programs can be fulfilled by the graduates produced and the
programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the
individual institutions of higher education; and
(C) Holding the higher education institutions and the higher education systems as a whole
accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact, subject to the provisions of section two,
article one-a of this chapter;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative
leadership and the Legislative Oversight Commission on Education Accountability;
(7) Jointly with the Council, promulgate legislative rules pursuant to article three-a, chapter
twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three,
article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to
measure institutional achievement towards state policy priorities and institutional missions pursuant
to section two, article one-a of this chapter;
(10) Annually report to the Legislature and to the Legislative Oversight Commission on
Education Accountability during the January interim meetings on a date and at a time and location
to be determined by the President of the Senate and the Speaker of the House of Delegates. The
report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year,
including, but not limited to, progress in meeting goals stated in the compacts and progress of the
institutions and the higher education system as a whole in meeting the goals and objectives set forth
in section one-a, article one of this chapter;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this
chapter and recommendations for any changes necessary to assure access to high-quality,
high-demand education programs for West Virginia residents;
(C) The priorities established for capital investment needs pursuant to subdivision (11) of this
subsection and the justification for such priority;
(D) Recommendations of the Commission for statutory changes needed to further the goals
and objectives set forth in section one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for capital investments and for
determining priorities for these investments, except the governing boards of Marshall University and
West Virginia University, respectively, may each develop a formal process for identifying capital
needs and priorities for the state institutions of higher education known as Marshall University and
West Virginia University without the approval of the Commission. It is the responsibility of the
Commission to assure a fair distribution of funds for capital projects between the Commission and
the Council. To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the Council for capital investment for the
institutions under the Council's jurisdiction pursuant to subsection (b), section six, article two-b of
this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on
which the list was received;
(C) Select a minimum of three projects from the list submitted by the Council to be included
on the ranked list established by the Commission. At least one of the three projects selected must
come from the top two priorities established by the Council.
(12) Maintain guidelines for institutions to follow concerning extensive capital projects
except the governing boards of Marshall University and West Virginia University are not subject to
the provisions of this subdivision as it relates to the state institutions of higher education known as
Marshall University and West Virginia University. The guidelines shall provide a process for
developing capital projects, including, but not limited to, the notification by an institution to the
Commission of any proposed capital project which has the potential to exceed one million dollars
in cost. Such a project may not be pursued by an institution without the approval of the
Commission. An institution may not participate directly or indirectly with any public or private
entity in any capital project which has the potential to exceed one million dollars in cost;
(13) Acquire legal services as are considered necessary, including representation of the
Commission, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary. The counsel may be employed
either on a salaried basis or on a reasonable fee basis. In addition, the Commission may, but is not
required to, call upon the Attorney General for legal assistance and representation as provided by
law;
(14) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the Commission and the Council, in accordance with the provisions of article four
of this chapter;
(16) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
(17) Advise and consent in the appointment of the presidents of the institutions of higher
education under its jurisdiction pursuant to section six of this article. The role of the Commission
in approving an institutional president is to assure through personal interview that the person selected
understands and is committed to achieving the goals and objectives as set forth in the institutional
compact and in section one-a, article one of this chapter;
(18) Approve the total compensation package from all sources for presidents of institutions
under its jurisdiction, as proposed by the governing boards. The governing boards must obtain
approval from the Commission of the total compensation package both when institutional presidents
are employed initially and afterward when any change is made in the amount of the total
compensation package;
(19) Establish and implement the policy of the state to assure that parents and students have
sufficient information at the earliest possible age on which to base academic decisions about what
is required for students to be successful in college, other post-secondary education and careers
related, as far as possible, to results from current assessment tools in use in West Virginia;
(20) Approve and implement a uniform standard jointly with the Council to determine which
students shall be placed in remedial or developmental courses. The standard shall be aligned with
college admission tests and assessment tools used in West Virginia and shall be applied uniformly
by the governing boards throughout the public higher education system. The chancellors shall
develop a clear, concise explanation of the standard which they shall communicate to the State Board
of Education and the State Superintendent of schools;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of
this subsection;
(22) Jointly with the Council, develop and implement an oversight plan to manage
systemwide technology such as the following:
(A) Expanding distance learning and technology networks to enhance teaching and learning,
promote access to quality educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional students, to provide services to
business and industry and increase the management capabilities of the higher education system.
(C) Notwithstanding any other provision of law or this code to the contrary, the Council,
Commission and state institutions of higher educations are not subject to the jurisdiction of the Chief
Technology Officer for any purpose.
(23) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a bachelor's degree the maximum number of credits earned
at any regionally accredited in-state or out-of-state community and technical college with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(24) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state higher education institution with as few requirements
to repeat courses or to incur additional costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students may transfer
and apply toward the requirements for a master's degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state higher education institution with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(26) Establish and implement policies and programs, in cooperation with the Council and the
institutions of higher education, through which students who have gained knowledge and skills
through employment, participation in education and training at vocational schools or other education
institutions, or internet-based education programs, may demonstrate by competency-based
assessment that they have the necessary knowledge and skills to be granted academic credit or
advanced placement standing toward the requirements of an associate degree or a bachelor's degree
at a state institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on
education and workforce development-related topics, as in the Commission's discretion is critical
for the performance of their duties as members, for the purpose of keeping abreast of education trends and policies to aid it in developing the policies for this state to meet the established education
goals and objectives pursuant to section one-a, article one of this chapter;
(28) Develop, establish and implement guidelines a rule for higher education governing
boards and institutions to follow when considering capital projects. The guidelines shall include,
but not be limited to, the following
(A) That the governing boards and institutions not approve or promote projects that give
competitive advantage to new private sector projects over existing West Virginia businesses, unless
the Commission determines such private sector projects are in the best interest of the students, the
institution and the community to be served; and
(B) That assure that the governing boards and institutions do not approve or promote capital
projects involving private sector businesses which would have the effect of reducing property taxes
on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due
on newly developed or future properties;
(29) Consider and submit to the appropriate agencies of the executive and legislative
branches of state government a budget that reflects recommended appropriations from the
Commission and the institutions under its jurisdiction, except for the state institutions of higher
education known as Marshall University and West Virginia University. The governing boards of
Marshall University and West Virginia University each shall consider and submit to the Commission
a single budget for the state institutions of higher education know as Marshall University and West
Virginia University, respectively, that reflects recommended appropriations for those institutions.
The Commission shall submit as part of its budget proposal the separate recommended
appropriations it received from those governing boards. The Commission shall submit as part of its
budget proposal the separate recommended appropriations it received from the Council, both for the
Council and the institutions under the Council's jurisdiction. The Commission annually shall submit
the proposed institutional allocations based on each institution's progress toward meeting the goals
of its institutional compact;
(30) The Commission has the authority to assess institutions under its jurisdiction, including
the state institutions of higher education known as Marshall University and West Virginia University, for the payment of expenses of the Commission or for the funding of statewide higher
education services, obligations or initiatives related to the goals set forth for the provision of public
higher education in the state;
(31) Promulgate rules allocating reimbursement of appropriations, if made available by the
Legislature, to institutions of higher education for qualifying noncapital expenditures incurred in the
provision of services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this code requires appointments
from the State College System Board of Directors or the University of West Virginia System Board
of Trustees which were abolished effective the thirtieth day of June, two thousand, except in those
cases where the required appointment has a specific and direct connection to the provision of
community and technical college education, the appointment shall be made by the Council.
Notwithstanding any provisions of this code to the contrary, the Commission or the Council may
appoint one of its own members or any other citizen of the state as its designee. The Commission
and Council shall appoint the total number of persons in the aggregate required to be appointed by
these previous governing boards;
(33) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and
section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the
purposes of this chapter. The Commission and the Council shall promulgate a uniform joint
legislative rule for the purpose of standardizing, as much as possible, the administration of personnel
matters among the institutions of higher education;
(34) Determine when a joint rule among the governing boards of the institutions under its
jurisdiction is necessary or required by law and, in those instances, in consultation with the
governing boards of all the institutions under its jurisdiction, promulgate the joint rule;
(35) In consultation with the Governing Boards of Marshall University and West Virginia
University, implement a policy jointly with the Council whereby course credit earned at a community
and technical college transfers for program credit at any other state institution of higher education
and is not limited to fulfilling a general education requirement; and
(36) Promulgate a joint rule with the Council establishing tuition and fee policy for all
institutions of higher education, other than state institutions of higher education known as Marshall
University and West Virginia University which are subject to the provisions of section one, article
ten of this chapter. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the Commission and Council consider appropriate; and
(37) Implement general disease awareness initiatives to educate parents and students,
particularly dormitory residents, about meningococcal meningitis; the potentially life-threatening
dangers of contracting the infection; behaviors and activities that can increase risks; measures that
can be taken to prevent contact or infection; and potential benefits of vaccination. The Commission
shall encourage institutions that provide medical care to students to provide access to the vaccine
for those who wish to receive it.
(b) In addition to the powers and duties listed in subsection (a) of this section, the
Commission has the following general powers and duties related to its role in developing,
articulating and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership including a distinct and visible role in setting the state's
policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a
geographical region thereof;
(3) Development and implementation of institutional mission definitions including use of
incentive funds to influence institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions under its jurisdiction except state
institutions of higher education known as Marshall University and West Virginia University,
including the use of institutional missions as a template to judge the appropriateness of both new and
existing programs and the authority to implement needed changes: Provided, That the commission shall review and approve academic programs of the state institutions of higher education known as
Marshall University and West Virginia University that are offered off the campus of those
institutions;
(5) Development of budget and allocation of resources, including reviewing and approving
institutional operating budgets and capital budgets for all institutions, except for the state institutions
of higher education known as Marshall University and West Virginia University, and distributing
incentive and performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the vice
chancellor for administration, including promulgation of any rules necessary to administer those
programs;
(7) Serving as the agent to receive and disburse public funds when a governmental entity
requires designation of a statewide higher education agency for this purpose;
(8) Development, establishment and implementation of information, assessment and
accountability systems, including maintenance of statewide data systems that facilitate long-term
planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the Council, developing, establishing and implementing policies for licensing
and oversight for both public and private degree-granting and nondegree-granting institutions that
provide post-secondary education courses or programs in the state pursuant to the findings and policy
recommendations to be determined as set forth in required by section eleven of this article;
(10) Development, implementation and oversight of statewide and region-wide projects and
initiatives related to providing post-secondary education at the baccalaureate level and above such
as those using funds from federal categorical programs or those using incentive and
performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties of the Commission particularly in
the areas of research, data collection and analysis, planning, policy analysis, program review and
approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided for in subsections (a) and (b) of this section
and any other powers and duties as may be assigned to it by law, the Commission has such other
powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The Commission is authorized to withdraw specific powers of any governing board of
an institution under its jurisdiction for a period not to exceed two years, if the Commission makes
a determination that:
(1) The governing board has failed for two consecutive years to develop an institutional
compact as required in article one of this chapter;
(2) The Commission has received information, substantiated by independent audit, of
significant mismanagement or failure to carry out the powers and duties of the board of governors
according to state law; or
(3) Other circumstances which, in the view of the Commission, severely limit the capacity
of the board of governors to carry out its duties and responsibilities.
(4) The period of withdrawal of specific powers may not exceed two years during which time
the Commission is authorized to take steps necessary to reestablish the conditions for restoration of
sound, stable and responsible institutional governance.
§18B-1B-5. Employment of Chancellor for Higher Education; office; powers and duties
generally; employment of vice chancellors.
(a) The Commission, created pursuant to section one of this article, shall employ a
Chancellor for Higher Education who is the Chief Executive Officer of the Commission and who
serves at its will and pleasure.
(b) The Commission shall set the qualifications for the position of chancellor and shall
conduct a thorough nationwide search for qualified candidates. A qualified candidate is one who
meets at least the following criteria:
(1) Possesses an excellent academic and administrative background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the
field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within a system of higher education
while employed as chancellor.
(c) The Commission shall conduct written performance evaluations of the chancellor
annually and may offer the chancellor a contract not to exceed three years. At the end of each
contract period, the Commission shall review the evaluations and make a determination by vote of
its members on continuing employment and compensation level.
(d) When filling a vacancy in the position of chancellor, the Commission shall enter into an
initial employment contract for one year with the candidate selected. At the end of the initial
contract period, and each contract period thereafter, the Commission shall review the evaluations and
make a determination by vote of its members on continuing employment and compensation level for
the chancellor.
(e) The chancellor shall be compensated on a basis in excess of, but not to exceed twenty
percent greater than, the base salary of any president of a state institution of higher education or the
administrative head of a governing board The Commission shall determine the compensation of the
Chancellor for Higher Education. The Commission may not increase the salary of the individual
employed as Chancellor on the effective date of this section.
(f) The Commission may employ a Vice Chancellor for Health Sciences who serves at the
will and pleasure of the Commission. The Vice Chancellor for Health Sciences shall coordinate the
West Virginia University School of Medicine, the Marshall University School of Medicine and the
West Virginia School of Osteopathic Medicine and also shall provide assistance to the governing
boards on matters related to medical education and health sciences. The Vice Chancellor for Health
Sciences shall perform all duties assigned by the chancellor, the Commission and state law. In the
case of a vacancy in the office of Vice Chancellor of Health Sciences, the duties assigned to this
Office by law are the responsibility of the Chancellor or a designee.
(g) The Commission shall employ a Vice Chancellor for Administration pursuant to section
two, article four of this chapter.
(h) The Commission may employ a Vice Chancellor for State Colleges who serves at the will
and pleasure of the Commission. It is the duty and responsibility of the Vice Chancellor for State
Colleges to:
(1) Provide assistance to the Commission, the Chancellor and the state colleges on matters
related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the institutional presidents and institutional
boards of governors of each state college;
(3) Serve as an advocate and spokesperson for the state colleges to represent them and to
make their interests, views and issues known to the Chancellor, the Commission and governmental
agencies;
(4) Perform all duties assigned by the Chancellor, the Commission and state law.
In addition, the Vice Chancellor for State Colleges has the responsibility and the duty to
provide staff assistance to the institutional presidents and governing boards to the extent practicable.
(i) On behalf of the Commission, the chancellor may enter into agreements with any state
agency or political subdivision of the state, any state higher education institution or any other person
or entity to enlist staff assistance to implement the powers and duties assigned by the Commission
or by state law.
(j) The Chancellor is responsible for the daily operations of the Commission and has the
following responsibilities relating to the Commission and the institutions under its jurisdiction:
(1) To carry out policy and program directives of the Commission;
(2) To develop and submit annual reports on the implementation plan to achieve the goals
and objectives set forth in section one-a, article one of this chapter and in the institutional compacts;
(3) To prepare and submit to the Commission for its approval the proposed budget of the
Commission including the offices of the Chancellor and the Vice Chancellors;
(4) To assist the governing boards in developing rules, subject to the provisions of section
six, article one of this chapter. Nothing in this chapter requires the rules of the governing boards to
be filed pursuant to the rule-making procedures provided in article three-a, chapter twenty-nine-a of
this code. The chancellor is Commission and the Council, either separately or jointly, as appropriate, are responsible for ensuring that any policy which is required to be uniform across the institutions
is applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned by the Commission or by state
law.
(k) The Chancellor shall be reimbursed for all actual and necessary expenses incurred in the
performance of all assigned duties and responsibilities.
(l) The Chancellor, with the Commission, advises the Legislature on matters of higher
education in West Virginia. The Chancellor shall work closely with the Legislative Oversight
Commission on Education Accountability and with the elected leadership of the state to ensure that
they are fully informed about higher education issues and that the Commission fully understands the
goals for higher education that the Legislature has established by law.
(m) The Chancellor may design and develop for consideration by the Commission new
statewide or regional initiatives in accordance with the goals set forth in section one-a, article one
of this chapter and the public policy agenda articulated by the Commission. In those instances where
the initiatives to be proposed have a direct and specific impact or connection to community and
technical college education as well as to baccalaureate and graduate education, the Chancellor for
Higher Education and the Chancellor for Community and Technical College Education shall design
and develop the initiatives jointly for consideration by the Commission and the Council.
(n) The Chancellor shall work closely with members of the State Board of Education and
with the State Superintendent of Schools to assure that the following goals are met:
(1) Development and implementation of a seamless kindergarten-through-college system of
education; and
(2) Appropriate coordination of missions and programs. To further the goals of cooperation
and coordination between the Commission and the State Board of Education, the Chancellor serves
as an ex officio, nonvoting member of the State Board of Education.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of presidents of the public state
institutions of higher education shall be made as follows:
(1) Subject to the approval of the Commission, the governing board of the institution
appoints a president for Bluefield State College, Concord college University, Fairmont State college
University, Glenville State College, Marshall University, Shepherd college University, West Liberty
State College, West Virginia School of Osteopathic Medicine, West Virginia State college
University and West Virginia University.
(2) Subject to the approval of the Council and to the provisions of article three-c of this
chapter, the Governing Board of West Virginia University appoints the President of the regional
campus known as West Virginia University at Parkersburg. When selecting candidates for
consideration to fill the office of president, the Governing Board shall use the search and screening
process provided for in section one, article six of this chapter.
Subject to the approval of the Commission, the Governing Board of West Virginia University
appoints the President of the regional campus known as West Virginia University Institute of
Technology. The president of each regional campus serves at the will and pleasure of the appointing
governing board.
(3) Subject to the approval of the Council, the governing board of the community and
technical college appoints a president for Eastern West Virginia Community and Technical College,
Southern West Virginia Community and Technical College and West Virginia Northern Community
and Technical College.
(4) Subject to the approval of the Council, the governing board of the sponsoring institution
appoints a president for each administratively linked community and technical colleges college
which shares a physical campus location with the sponsoring institution, including Fairmont State
Community and Technical College, Marshall Community and Technical College, the Community
and Technical College at West Virginia University Institute of Technology and West Virginia State
Community and Technical College.
(5) Subject to the approval of the Council, the governing board of the community and
technical college appoints a president for each administratively linked community and technical
college which does not share a physical campus location with the sponsoring institution, including New River Community and Technical College and the Community and Technical College of
Shepherd.
Subject to the approval of the Council, the governing board of the sponsoring institution
appoints a president for each of these two community and technical colleges until the institution
gains independent accreditation.
(b) Other appointments. -- Effective the first day of July, two thousand five, The institutional
president shall appoint appoints a provost to be the administrative head of the Potomac campus of
West Virginia University.
(c) Evaluation of presidents. -- The appointing governing board shall conduct written
performance evaluations of each institution's president, including the presidents of administratively
linked community and technical colleges. Evaluations shall be done in every fourth year of
employment as president, recognizing unique characteristics of the institution and utilizing
institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate
governing board and persons knowledgeable in higher education matters who are not otherwise
employed by a governing board. A part of the evaluation shall be a determination of the success of
the institution in meeting the requirements of its institutional compact.
§18B-1B-13. Study of issues affecting employees in public higher education.
(a) In consultation with the Council, the governing boards, the State Advisory Council of
Faculty established pursuant to section two, article six of this chapter and the State Advisory Council
of Classified Employees established pursuant to section five, article six of this chapter, the
Commission shall conduct a study relating to issues affecting employees in public higher education.
For the purposes of this section only, the Governor shall appoint three employees from state
institutions of higher education to participate in the study and to represent the interests of employees,
including one from Marshall University, one from West Virginia University and one from any other
state institution of higher education.
(b) The study includes, but is not limited to, the following:
(1) Reviewing statutes, rules, guidelines, interpretations and other statements of policy;
(2) Surveying the capacity, professional training and practices of human resources staff by
institution, including the number of staff employed in each institutional human resources office, their
job titles and responsibilities;
(3) Evaluating the strengths and weaknesses of the statewide classification and compensation
system and examining alternatives;
(4) Reviewing job titles and responsibilities to determine if certain families of jobs should
be classified or nonclassified;
(5) Evaluating and recommending best practices and methods to establish salary rates for
faculty, classified employees, nonclassified employees and administrators, including:
(A) Developing measurable indicators of 'merit' and 'performance' if these terms are to be
used in a system for determining benefits;
(B) Developing reliable instruments of performance evaluation for all classes of employees;
and
(C) Exploring the feasibility of authorizing employee bonuses under a merit or
performance-based system;
(6) Determining the most effective and efficient method to train administrators who perform
employee evaluations and assuring that they use these instruments appropriately;
(7) Exploring justifications for maintaining or removing the internal preference for hiring,
promoting and transferring classified employees pursuant to article seven of this chapter;
(8) Developing recommendations for a fair and rational policy covering reductions in force;
(9) Identifying unnecessary state-level paperwork requirements related to personnel and
recommending methods to eliminate them while maintaining strict fiscal accountability;
(10) Evaluating the strengths and weaknesses of statewide tenure and promotion policies for
faculty and examining alternatives;
(11) Evaluating the feasibility of implementing differential salary rates based on cost of living
or other relevant factors;
(12) Determining whether employees whose salaries are derived from funds other than state
appropriations should be subject to the provisions of article seven of this chapter and how such
employees should be treated in any policy on reductions in force; and
(13) Determining the true costs or benefits as well as the advantages and disadvantages that
may accrue as a result of decisions to outsource certain institutional functions. In order to perform
a cost/benefit analysis, the Commission must first develop an accurate database of institutional
practices including the number of positions being outsourced or filled by temporary employees and
the true amount of cost savings, if any.
(c) The Commission shall report to the Legislative Oversight Commission on Education
Accountability by the first day of October, two thousand five, and every six months thereafter on the
progress of the study.
(d) The Commission shall complete its work and report its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate the
recommendations, to the Legislative Oversight Commission on Education Accountability by the first
day of December, two thousand eight.
(1) In making its recommendations, the Commission shall take into account the impact of
proposed changes on employees and the communities in which state institutions of higher education
are located; and
(2) The Commission shall include documentation to support any conclusion or
recommendation included as a part of their findings and shall attach estimates of cost or savings to
each recommendation, if that recommendation has a fiscal impact on any public agency or
institution.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-3. Supervision of governing boards; promulgation of rules.
(a) For the transition year beginning on the first day of July, two thousand and ending on the
thirtieth day of June, two thousand one, the Interim Governing Board is subject to the supervision
of the secretary of education and the arts. Rules adopted by the governing board are subject to
approval by the secretary of education and the arts.
(b) (a) Effective the first day of July, two thousand one, and thereafter, The governing boards
are subject to the supervision of the chancellor Commission or the Council, as appropriate, except
for the governing boards of Marshall University and West Virginia University as it relates to the state
institutions of higher education know as Marshall University and West Virginia University. The
Chancellor for Higher Education and the Chancellor for Community and Technical College
Education, under the supervision of their respective boards, is are responsible for the coordination
of policies and purposes of the governing boards and shall provide for and facilitate sufficient
interaction among the governing boards and between the governing boards and the State Board of
Education to meet the goals and objectives provided for in the compacts and in section one-a, article
one of this chapter.
(c) (b) The governing boards and the State Board of Education shall provide any and all
information requested by the chancellor Commission or the Council in a an appropriate format and
in a timely manner.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties:
(a) Determine, control, supervise and manage the financial, business and education policies
and affairs of the state institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its jurisdiction, except the
administratively linked community and technical colleges which retain an institutional board of
advisors shall develop their master plans subject to the provisions of section one, article six of this
chapter.
(1) The ultimate responsibility for developing and updating the master plans at the
institutional level resides with the board of governors, or board of advisors, as applicable. but The
ultimate responsibility for approving the final version of the institutional master plans, including
periodic updates, resides with the governing boards of Marshall University and West Virginia
University for the state institutions of higher education known as Marshall University and West
Virginia University, respectively, and with the Commission or Council, as appropriate, for all other
state institutions of higher education.
(2) Each master plan shall include, but not be limited to, the following:
(1) (A) A detailed demonstration of how the master plan will be used to meet the goals and
objectives of the institutional compact;
(2) (B) A well-developed set of goals outlining missions, degree offerings, resource
requirements, physical plant needs, personnel needs, enrollment levels and other planning
determinates and projections necessary in such a plan to assure that the needs of the institution's area
of responsibility for a quality system of higher education are addressed;
(3) (C) Documentation of the involvement of the Commission or Council, as appropriate,
institutional constituency groups, clientele of the institution and the general public in the
development of all segments of the institutional master plan.
(3) The plan shall be established for periods of not less than three nor more than six years and
shall be revised periodically as necessary, including the addition or deletion of degree programs as,
in the discretion of the appropriate governing board, may be necessary;
(c) Prescribe for the institutions under its jurisdiction, in accordance with its master plan and
the compact for each institution, specific functions and responsibilities to meet the higher education
needs of its area of responsibility and to avoid unnecessary duplication;
(d) Direct the preparation of a budget request for the institutions under its jurisdiction, such
request to relate directly to missions, goals and projections as found in the institutional master plans
and the institutional compacts;
(e) Consider, revise and submit to the Commission or Council, as appropriate, a budget
request on behalf of the institutions under its jurisdiction;
(f) Review, at least every five years, all academic programs offered at the institutions under
its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in
relation to its institutional master plan, the institutional compact and the education and workforce
needs of its responsibility district. As a part of the review, each governing board shall require the
institutions under its jurisdiction to conduct periodic studies of its graduates and their employers to
determine placement patterns and the effectiveness of the education experience. Where appropriate, these studies should coincide with the studies required of many academic disciplines by their
accrediting bodies;
(g) The governing boards shall ensure that the sequence and availability of academic
programs and courses offered by the institutions under their jurisdiction is such that students have
the maximum opportunity to complete programs in the time frame normally associated with program
completion. Each governing board is responsible to see that the needs of nontraditional college-age
students are appropriately addressed and, to the extent it is possible for the individual governing
board to control, to assure core course work completed at institutions under its jurisdiction is
transferable to any other state institution of higher education for credit with the grade earned;
(h) Subject to the provisions of article one-b of this chapter, the appropriate governing board
has the exclusive authority to approve the teacher education programs offered in the institution under
its control. In order to permit graduates of teacher education programs to receive a degree from a
nationally accredited program and in order to prevent expensive duplication of program
accreditation, the Commission may select and utilize one nationally recognized teacher education
program accreditation standard as the appropriate standard for program evaluation;
(i) Utilize faculty, students and classified employees in institutional-level planning and
decisionmaking when those groups are affected;
(j) Subject to the provisions of federal law and pursuant to the provisions of article nine of
this chapter and to rules adopted by the Commission and the Council, administer a system for the
management of personnel matters, including, but not limited to, personnel classification,
compensation and discipline for employees at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and appeals. Notwithstanding any
other provision of this code to the contrary, the procedure established in article six-a, chapter
twenty-nine of this code is the exclusive mechanism for hearing prospective employee grievances
and appeals. In construing the application of said article to grievances of higher education
employees, the following apply:
(1) 'Chief administrator' means the president of a state institution of higher education as to
those employees employed by the institution and the appropriate chancellor as to those employees
employed by the Commission or Council;
(2) The State Division of Personnel may not be a party to nor have any authority regarding
a grievance initiated by a higher education employee; and
(3) The provisions of this section supersede and replace the grievance procedure set out in
article twenty-nine, chapter eighteen of this code for any grievance initiated by a higher education
employee after the first day of July, two thousand one;
(l) Solicit and utilize or expend voluntary support, including financial contributions and
support services, for the institutions under its jurisdiction;
(m) Appoint a president for the institutions under its jurisdiction subject to the provisions of
section six, article one-b of this chapter;
(n) Conduct written performance evaluations of the president pursuant to section six, article
one-b of this chapter;
(o) Employ all faculty and staff at the institution under its jurisdiction. Such employees
operate under the supervision of the president, but are employees of the governing board;
(p) Submit to the Commission or Council, as appropriate, no later than the first day of
November of each year an annual report of the performance of the institution under its jurisdiction
during the previous fiscal year as compared to stated goals in its master plan and institutional
compact;
(q) Enter into contracts or consortium agreements with the public schools, private schools
or private industry to provide technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the public institution of higher education or at
off-campus locations in the institution's responsibility district. To accomplish this goal, the boards
are permitted to share resources among the various groups in the community;
(r) Provide and transfer funding and property to certain corporations pursuant to section ten,
article twelve of this chapter;
(s) Delegate, with prescribed standards and limitations, the part of its power and control over
the business affairs of the institution to the president in any case where it considers the delegation
necessary and prudent in order to enable the institution to function in a proper and expeditious
manner and to meet the requirements of its institutional compact. If a governing board elects to
delegate any of its power and control under the provisions of this subsection, it shall enter such
delegation in the minutes of the meeting when the decision was made and shall notify the appropriate
chancellor Commission or Council, as appropriate. Any such delegation of power and control may
be rescinded by the appropriate governing board, or the chancellor the Commission or Council, as
appropriate, at any time, in whole or in part, except that the Commission may not revoke delegations
of authority made by the governing boards of Marshall University or West Virginia University as
they relate to the state institutions of higher education known as Marshall University and West
Virginia University;
(t) Unless changed by the Commission or the Council, as appropriate, the governing boards
shall continue to abide by existing rules setting forth standards for acceptance of advanced placement
credit for their respective institutions. Individual departments at institutions of higher education
may, upon approval of the institutional faculty senate, require higher scores on the advanced
placement test than scores designated by the appropriate governing board when the credit is to be
used toward meeting a requirement of the core curriculum for a major in that department;
(u) Each governing board, or its designee, shall consult, cooperate and work with the State
Treasurer and the State Auditor to update as necessary and maintain an efficient and cost-effective
system for the financial management and expenditure of special revenue and appropriated state funds
at the institutions under its jurisdiction that ensures that properly submitted requests for payment be
paid on or before due date but, in any event, within fifteen days of receipt in the State Auditor's
office;
(v) The governing boards in consultation with the appropriate chancellor and the Secretary
of the Department of Administration shall develop, update as necessary and maintain a plan to
administer a consistent method of conducting personnel transactions, including, but not limited to,
hiring, dismissal, promotions and transfers at the institutions under their jurisdiction. Each such personnel transaction shall be accompanied by the appropriate standardized system or forms which
will be submitted to the respective governing board and the Department of Finance and
Administration;
(w) Transfer of funds. --
(1) Notwithstanding any other provision of this code to the contrary, the governing boards
may transfer funds from any account specifically appropriated for their use to any corresponding line
item in a general revenue account at any agency or institution under their jurisdiction as long as such
transferred funds are used for the purposes appropriated.
(2) The governing boards may transfer funds from appropriated special revenue accounts for
capital improvements under their jurisdiction to special revenue accounts at agencies or institutions
under their jurisdiction as long as such transferred funds are used for the purposes appropriated.
(x) Notwithstanding any other provision of this code to the contrary, the governing boards
may acquire legal services as are considered necessary, including representation of the governing
boards, their institutions, employees and officers before any court or administrative body. The
counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the
governing boards may, but are not required to, call upon the Attorney General for legal assistance
and representation as provided by law; and
(y) Each governing board which has under its jurisdiction an administratively linked
community and technical college or a regional campus offering community and technical college
education programs shall create within the administrative structure of its governing board a
subcommittee for community and technical college education. The subcommittee shall have at least
four members, one of whom is the chairperson of the board of advisors of the community and
technical college or, in the case of the Governing Board of West Virginia university, both the
member representing the community and technical college and the member representing the regional
campus; and
(z) A governing board may contract and pay for disability insurance for a class or classes of
employees at a state institution of higher education under its jurisdiction.
§18B-2A-7. Additional powers and duties of governing boards.
When the institutional operating budgets of all state institutions of higher education have
achieved a level of funding comparable, but not less than eighty percent, with their respective peers,
as established pursuant to section three, article one-a of this chapter, but not sooner than the first day
of July, two thousand ten, all state institutions of higher education are granted the powers and
authorities previously granted to the state institutions of higher education known as Marshall
University and West Virginia University pursuant to:
(1) Section four-a, article six, chapter five of this code;
(2) Section twelve-b, article one, chapter twelve of this code;
(3) Sections five, six, seven and eight, article three, chapter twelve of this code;
(4) Sections three and six, article one of this chapter;
(5) Section two article one-a of this chapter;
(6) Section four, article one-b of this chapter;
(7) Sections three and four, article two-a of this chapter;
(8) Sections two and three, article three of this chapter;
(9) Sections five, five-a, six and seven, article four of this chapter;
(10) Sections three, four, seven and nine, article five of this chapter; and
(11) Sections one and six-a, article ten of this chapter.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-9. Permits required for correspondence, business, occupational and trade schools;
surety bonds and fees; issuance, renewal and revocation of permit;
reports; rules; penalty and enforcement.
(a) The following words when used in this section have the meaning hereinafter ascribed to
them unless the context clearly indicates a different meaning:
(1) 'Proprietary schools that award specialized associate degrees' means institutions of higher
education; and
(2) 'Specialized associate degrees' means degrees awarded by such institutions pursuant to
a program of not fewer than two academic years.
(b) Nothing in this section qualifies proprietary schools for additional state moneys not
otherwise qualified under other provisions of this code.
(c) It is unlawful for any person representing a correspondence, business, occupational or
trade school inside or outside this state, as these are defined by the Council by rule promulgated in
accordance with article three-a, chapter twenty-nine-a of this code, to solicit, sell or offer to sell
courses of instruction to any resident of this state for consideration or remuneration unless the school
first applies for a permit, or obtains a permit, from the Council in the manner and on the terms herein
prescribed, except this section does not apply to private organizations which offer only tax return
preparation courses. The rule previously promulgated by the State College System Board of
Directors and transferred to the Council by section six, article two-b, chapter eighteen-b of this code
remains in effect until rescinded or amended by the Council.
(1) All private training or educational institutions, schools or academies or other
organizations shall apply for a permit from the Council on forms provided by the Council.
(2) Each initial application shall be accompanied by a nonrefundable fee of two thousand
dollars. The Council also may assess an additional fee based on any additional expense required to
evaluate the application.
(3) The Council shall make a determination on the initial permit application within ninety
days after receipt of the application and fee.
(4) An applicant for an initial permit shall show proof at the time of filing an application that
adequate facilities are available and ready for occupancy and that all instructional equipment, books
and supplies and personnel are in place and ready for operation. A representative of the Council
shall make an on-site visit to the facilities of all new applicants to confirm their readiness for
operation prior to issuance of the initial permit if the facilities are located in West Virginia.
(5) A school is considered to be established under the provisions of this article on the date
it first begins to operate lawfully. An established school is not required to reapply for a permit as
a result of changes in governance; administration; ownership; or form of operation.
(6) After the first permit year, an annual fee of five hundred dollars is imposed on each
school for each campus it operates in this state.
(d)Each application shall be accompanied by a surety bond in the penal sum of thirty-five
thousand dollars for any school which has its physical facilities located in this state and which has
operated in this state for at least ten years:
(1) If the school has changed ownership within the last ten years by transfer of ownership
control to a person who is a spouse, parent, sibling, child or grandchild of the previous owner, the
surety bond shall continue in the penal sum of thirty-five thousand dollars.
(2) Any school which has operated in West Virginia for fewer than ten years, excluding those
schools which have changed ownership within the last ten years as provided in subdivision (1) of
this section, and any school located in another state which applies for a permit hereunder, shall
provide a surety bond of fifty thousand dollars.
(3) Any school may be required to increase its bond to one hundred fifty thousand dollars if
either of the following conditions apply:
(A) The school's accreditation is terminated for cause; or
(B) The school's institutional eligibility under the Higher Education Act of 1965, as amended,
has been terminated for cause. Expiration, nonrenewal or voluntary relinquishment of accreditation
or institutional eligibility under the Higher Education Act, or failure to meet the requirements of one
or more programs under the Act, are not considered to be a termination for cause.
(4) Any school may be required to increase its bond to an amount not to exceed four hundred
thousand dollars if, in accordance with the standards of the American Institute of Certified Public
Accountants, the school's audited financial statements are qualified because the school's continued
financial viability as an ongoing concern is in doubt and the Council determines an increased bond
is reasonably necessary to protect the financial obligations legally due the students then enrolled at
the institution.
(A) A school may be required to maintain the increased bonding requirements described
above until all students attending classes at the date of termination either graduate or withdraw.
(B) The bond may be continuous and shall be conditioned to provide indemnification to any
student suffering loss as a result of any fraud or misrepresentation used in procuring the student's enrollment, failure of the school to meet contractual obligations, or failure of the school to meet the
requirements of this section.
(C) The bond shall be given by the school itself as a blanket bond covering all of its
representatives.
(D) The surety on a bond may cancel the same upon giving thirty days' notice in writing to
the principal on the bond and to the state Council and thereafter shall be relieved of liability for any
breach of condition occurring after the effective date of the cancellation.
(e) A permit shall be valid for one year corresponding to the effective date of the bond and
may be renewed upon application, accompanied by the required fee and the surety bond as herein
required. All fees collected for the issuance or renewal of a permit shall be deposited in the State
Treasury to the credit of the Council.
(f) The Council may refuse a permit to any school if the Council finds that the school engages
in practices which are inconsistent with this section or with rules issued pursuant thereto.
(g) permit issued hereunder may be suspended or revoked by the Council for fraud or
misrepresentation in soliciting or enrolling students, for failure of the school to fulfill its contract
with one or more students who are residents of West Virginia or for violation of or failure to comply
with any provision of this section or with any regulation of the Council pertinent thereto.
(1) Before taking any action to suspend or revoke a school's permit, the Council shall give
the school fifteen days' notice and convene a hearing, if a hearing is requested by the school.
(2) Prior to the Council taking any adverse action, including refusal, suspension or revocation
of a permit, the Council shall give the school reasonable opportunity to take corrective measures.
(3) Any refusal, suspension or revocation of a permit, or any other adverse action against a
school, shall comply with all constitutional provisions, including due process, relating to the
protection of property rights.
(h) All correspondence, business, occupational or trade schools which have been issued
a permit shall make annual reports to the Council on forms furnished by the Council and shall
provide such appropriate information as the Council reasonably may require. All correspondence,
business, occupational or trade schools which have been issued a permit shall furnish to the Council a list of its official representatives. Each school shall be issued a certificate of identification by the
Council for each of its official representatives.
(i) The issuance of a permit pursuant to this section does not constitute approval or
accreditation of any course or school. No school, nor any representative of a school, may make any
representation stating, asserting or implying that a permit issued pursuant to this section constitutes
approval or accreditation by the State of West Virginia, Council or any other department or agency
of the state.
(j) The Council is hereby authorized to adopt rules and conduct on-site reviews to evaluate
academic standards maintained by schools for the awarding of certificates, diplomas, associate
degrees and specialized associate degrees.
(1) These standards may include curriculum, personnel, facilities, materials and equipment.
(2) For accredited correspondence, business, occupational and trade schools under permit on
the first day of July, one thousand nine hundred seventy-nine, which have their physical facilities
located in this state and which are accredited by the appropriate nationally recognized accrediting
agency or association approved by the United States Department of Education, the accrediting
agency's standards, procedures and criteria are accepted as meeting applicable laws, standards and
rules of the Council.
(3) Institutions which are institutionally accredited by accrediting agencies recognized by the
United States Department of Education to establish academic standards for post-secondary education
may offer post-secondary educational programs leading to certificates, diplomas and associate
degrees and may award certificates, diplomas and associate degrees to graduates who successfully
complete required programs in accordance with the academic standards required by such accrediting
agency.
(4) If a review undertaken by the Council indicates there may be deficiencies in the academic
standards the institution maintains in its educational programs and if such deficiencies are of such
a material nature that they jeopardize continued accreditation, the Council shall notify the institution.
If the Council and the institution are unable to agree on the deficiencies or the steps necessary to
correct the deficiencies, the Council shall consult with the institution's accrediting agency regarding an academically appropriate resolution which may include a joint on-site review by the Council and
the accrediting agency.
(5) The Council also may review the academic standards of unaccredited institutions and may
require such institutions to maintain recognized academic standards that are reasonably appropriate
to the nature of the institution and the training offered.
(k) The Council may authorize an investigation of written student complaints alleging a
violation of this section, Council rules or accreditation standards and may take appropriate action
based on the findings of such an investigation.
(l) All evaluations or investigations of correspondence, business, occupational and trade
schools and actions resulting from such evaluations or investigations shall be made in accordance
with rules promulgated by the Council pursuant to article three-a, chapter twenty-nine-a of this code.
(m)In regard to private, proprietary educational institutions operating under this section
of the code, accredited by a national or regional accrediting agency or association recognized by the
United States Department of Education and which provide training at a campus located in this state:
(1)Any rule or standard which is authorized by this or any section of the code or other
law and which is now in effect or promulgated hereafter by the Council (or other agency with
jurisdiction) shall be clearly, specifically and expressly authorized by narrowly construed enabling
law and shall be unenforceable and without legal effect unless authorized by an Act of the
Legislature under the provisions of article three-a, chapter twenty-nine-a of this code.
(2)Notwithstanding any other provision of this section or other law to the contrary, the
institution's accrediting agency standards, procedures and criteria shall be accepted as the standards
and rules of the Council (or other agency with jurisdiction) and as meeting other law or legal
requirements relating to the operation of proprietary institutions which such Council or other agency
has the legal authority to enforce under any section of the code or other law. Nothing in this section
denies students the use of remedies that would otherwise be available under state or federal
consumer laws or federal law relating to federal college financial assistance programs.
(3)Accredited institutions operating hereunder are hereby recognized as postsecondary.
Academic progress is measured and reported in credit hours and all reports/documents are filed on a credit-hour basis unless the institution notifies the Council that it utilizes clock hours as its unit of
measurement.
(n)A representative of any school who solicits, sells or offers to sell courses of
instruction to any resident of this state for consideration or remuneration unless the school first
applies for a permit, or obtains a permit, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than two hundred dollars per day per violation, or imprisoned in jail not more
than sixty days, or both fined and imprisoned. No correspondence, business, occupational or trade
school shall maintain an action in any court of this state to recover for services rendered pursuant
to a contract solicited by the school if the school did not hold a valid permit at the time the contract
was signed by any of the parties thereto. The Attorney General or any county prosecuting attorney,
at the request of the Council or upon his or her own motion, may bring any appropriate action or
proceeding in any court of competent jurisdiction for the enforcement of the provisions of this
section relating to permits, bonds and sureties.
(o) In regard to institutions operating under this section, all substantive standards and
procedural requirements established by the Council (or the West Virginia state program review entity
or other agency with jurisdiction over institutions operating hereunder) shall meet all substantive and
procedural standards of due process relating to the protection of an individual citizen's property
rights as provided under the United States Constitution and shall follow the substantive standards
and procedural requirements established by or under authority of this section.
ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF RESEARCH,
DOCTORAL-GRANTING PUBLIC UNIVERSITIES.
§18B-3-1. Legislative findings, purpose; intent; definition.
(a) The Legislature finds that an effective and efficient system of doctoral-level education
is vital to providing for the economic well-being of the citizens of West Virginia and for
accomplishing established state goals and objectives. As the only research and doctoral-granting
public universities in the state, Marshall University and West Virginia University are major assets
to the citizens of West Virginia and must be an integral part of any plan to strengthen and expand
the economy.
(b) The Legislature further finds that these two institutions must compete in both a national
and global environment that is rapidly changing, while they continue to provide high quality
education that is both affordable and accessible and remain accountable to the people of West
Virginia for the most efficient and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and West Virginia University,
under the direction of their respective governing boards, have sufficient staff and internal expertise
to manage operational governance of their institutions in an efficient and accountable manner and
can best fulfill their public missions when their governing boards are given flexibility and autonomy
sufficient to meet state goals established in this article and in section one-a, article one of this
chapter.
(d) Therefore, the purposes of this article include, but are not limited to, the following:
(1) Enhancing the competitive position of Marshall University and West Virginia University
in the current environment for research and development;
(2) Providing the governing boards of these institutions with operational flexibility and
autonomy, including tools to promote economic development in West Virginia;
(3) Encouraging the development of research expertise in areas directly beneficial to the state;
and
(4) Focusing the attention and resources of the governing boards on state goals and priorities
to enhance the competitive position of the state and the economic, social and cultural well-being of
its citizens.
(e) The following terms wherever used or referred to in this chapter have the following
meaning, unless a different meaning plainly appears from the context:
(1) 'State institution of higher education known as Marshall University' means the
doctoral-granting research institution and does not include Marshall Community and Technical
College; and
(2) 'State institution of higher education known as West Virginia University' means the
doctoral-granting research institution and does not include any of the following:
(A) The regional campus known as West Virginia University Institute of Technology;
(B) The administratively linked institution known as the Community and Technical College
at West Virginia University Institute of Technology; and
(C) The regional campus known as West Virginia University at Parkersburg.
(f) The governing boards of Marshall University and West Virginia University each have the
power and the obligation to perform functions, tasks and duties as prescribed by law and to exercise
their authority and carry out their responsibilities in a manner that is consistent with and not in
conflict with the powers and duties assigned by law to the West Virginia Council for Community
and Technical College Education and the Higher Education Policy Commission.
(g) While the governing boards of Marshall University and West Virginia University,
respectively, may choose to delegate powers and duties to the presidents of the state institutions of
higher education known as Marshall University and West Virginia University pursuant to subsection
(s), section four, article two-a of this chapter, ultimately it is they who are accountable to the
Legislature, the Governor and the citizens of West Virginia for meeting the established state goals
set forth in this article and section one-a, article one of this chapter. Therefore, it is the intent of the
Legislature that grants of operational flexibility and autonomy be made directly to the governing
boards and are not grants of operational flexibility and autonomy to the presidents of these
institutions.
§18B-3-2. Computer and computer equipment donation program.
Notwithstanding any other provision of this code to the contrary, the governing boards are
authorized to create a program to donate surplus computers and computer-related equipment to
education facilities, nonprofit organizations, juvenile detention centers, municipal and county public
safety offices and other public, charitable or educational enterprises or organizations in this state.
(a) Only equipment which otherwise would be transferred to the Surplus Property Unit of the
Purchasing Division may be donated;
(b) The governing boards shall keep records and accounts that clearly identify the equipment
donated, the age of the equipment, the reasons for declaring it obsolete and the name of the education
facility, nonprofit organization, juvenile detention center, municipal or county public safety office or other public, charitable or educational enterprise or organization to which the equipment was
donated;
(c) Each governing board shall promulgate a rule in accordance with the provisions of section
six, article one of this chapter to implement the donation program. The rules shall specify the
procedures to be used for record keeping and shall provide for fair and impartial selection of
equipment recipients.
§18B-3-3. Relationship of governing boards to the Commission and the Council.
(a) Relationship between the Commission and the governing boards:
(1) The Commission functions as a state-level coordinating board exercising its powers and
duties in relation to the governing boards of Marshall University and West Virginia University only
as specifically prescribed by law;
(2) The primary responsibility of the Commission is to work collaboratively with the
governing boards to research, develop and propose policy that will achieve the established goals and
objectives set forth in this chapter and chapter eighteen-c of this code; and
(3) The Commission has specific responsibility for, including, but not limited to, the
following:
(A) Advocating for public higher education at the state level; and
(B) Collecting and analyzing data, researching, developing recommendations, and advising
the Legislature and the Governor on broad policy initiatives, use of incentive funding, national and
regional trends in higher education and issues of resource allocation involving multiple governing
boards.
(b) Relationship between the Council and the governing boards:
(1) The Council maintains all powers and duties assigned to it by law or policy relating to
the administratively linked institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and Technical College at West Virginia
University Institute of Technology and the regional campus known as West Virginia University at
Parkersburg;
(2) In addition to recognizing the authority assigned by law to the Council, it is the
responsibility of the governing boards of Marshall University and West Virginia University to
exercise their authority and carry out their responsibilities in a manner that is consistent with and
complementary to the powers and duties assigned by law or policy to the community and technical
colleges or to the Council;
(3) It is further the responsibility of the governing boards to abide by the rules duly
promulgated by the Council relating to the community and technical colleges, to strengthen the
community and technical college mission of these institutions, to aid them in meeting the essential
conditions set forth in section three, article three-c of this chapter and to promote them to students,
parents and the community as independently accredited institutions in their own right.
(c) The governing boards shall work collaboratively with the Commission, the Council and
their staff to provide any and all information requested by the Commission or the Council in an
appropriate format and in a timely manner.
§18B-3-4. Duty of governing boards to address state priorities.
(a) The expertise of faculty and graduate students at the state institutions of higher education
known as Marshall University and West Virginia University is important to every citizen of this
state. It is the responsibility of the governing boards to channel this expertise into research and
analysis that will yield measurable benefits to the citizens of West Virginia. Therefore, in addition
to the goals for post-secondary education established in section one-a, article one of this chapter, and
goals established elsewhere in this code, it is the responsibility of the governing boards in
collaboration to concentrate attention and resources on certain specific state priorities that have a
direct, positive impact on the economic, social, and cultural well-being of the people of West
Virginia. These priorities include, but are not limited to, the following:
(1) Developing Regional Brownfield Assistance Centers pursuant to section seven, article
eleven of this chapter;
(2) Performing professional development-related research and coordinating the delivery of
professional development to educators in the public schools of the state pursuant to the provisions
of article two, chapter eighteen of this code; and
(3) Building subject matter expertise in public school finance, including mastery of the
theories and concepts used in developing formulas to provide state-level financial support to public
education.
(4) Researching and proposing cost-efficient methods to the Legislature for governing boards
other than Marshall University and West Virginia University to dispose of obsolete computers and
computer-related equipment.
(b) The Legislature may, but is not required to, make additional appropriations for the benefit
of the state institutions of higher education known as Marshall University and West Virginia
University to assist them in fulfilling the purposes set forth in subsection (a) of this section.
(c) In addition to the priorities established in subsection (a) of this section, each governing
board separately shall focus resources and attention on improving their graduation rates for full-time
undergraduate students as a specific institutional priority. The graduation rate is measured as a
percentage of the undergraduate students who obtain a degree within six years of the date of
enrollment as full-time freshmen. The governing boards shall develop and implement plans to reach
the following goals:
(1) Marshall University shall attain a graduation rate for full-time undergraduate students of
forty percent by the first day of July, two thousand eight, and shall attain a graduation rate for
full-time undergraduate students of forty-five percent by the first day of July, two thousand ten.
(2) West Virginia University shall attain a graduation rate for full-time undergraduate
students of sixty percent by the first day of July, two thousand eight, and shall attain a graduation
rate for full-time undergraduate students of sixty-three percent by the first day of July, two thousand
ten.
(3) The Commission shall monitor and report by the first day of December, two thousand five
and annually thereafter to the Legislative Oversight Commission on Education Accountability on
the progress of the governing boards toward meeting the goals set forth in subdivisions (1) and (2)
of this subsection.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-5. Campus police officers; appointment; qualifications; authority; compensation and
removal.
(a) The governing boards are hereby authorized to may appoint bona fide residents of this
state to act serve as campus police officers upon any premises owned or leased by the State of West
Virginia and under the jurisdiction of the governing boards, subject to the conditions and restrictions
hereinafter imposed established in this section.
(1) A person who previously was qualified for employment as a law-enforcement officer for
a state agency or political subdivision of the state is considered certified for appointment as a campus
police officer at the state institutions of higher education under the jurisdiction of the governing
boards of Marshall University and West Virginia University.
(2) Before performing duties as a campus police officer in any county, each person so
appointed shall first qualify therefor in the same manner as is a person shall qualify as is required
of county police officers by: the
(A) Taking and filing of an oath of office as required by article one, chapter six of this code;
and by
(B) Posting an official bond as required by article two, chapter six of this code.
(b) A campus police officer shall have authority to carry a gun and may carry a gun and any
other dangerous weapon while on duty if the campus police officer fulfills the certification
requirement for law-enforcement officers under section five, article twenty-nine, chapter thirty of
this code or meets the requirements of subsection (a) of this section.
(c) It is the duty of any person so appointed and qualified as a campus police officer to
preserve law and order: only upon those
(1) On the premises under the jurisdiction of the governing boards and board; and
(2) On any other street, road or thoroughfare, except controlled access and open country
highways, immediately adjacent to or passing through such premises, to which the person may be
officer is assigned by the president or other administrative head of the state institution of higher
education.
(A) For this purpose the purpose of this subdivision, the campus police officer is a
law-enforcement officer pursuant to the provisions of section one, article twenty-nine, chapter thirty
of this code. and as to offenses committed within any area so assigned
(B) The officer has and may exercise all the powers and authority and of a law-enforcement
officer as to offenses committed within the area assigned;
(C) The officer is subject to all the requirements and responsibilities of a law-enforcement
officer; Provided, That the assignment of campus police officers to the duties authorized by this
section may not be deemed to
(D) Authority assigned pursuant to this subdivision does not supersede in any way the
authority or duty of other peace law-enforcement officers to preserve law and order on such
premises. In addition, the
(E) Campus police officers appointed under provisions of this section have authority to assist
local peace officers may assist a local law-enforcement agency on public highways. in the control
of The assistance may be provided to control traffic in and around premises owned by the state when:
of West Virginia whenever such
(i) Traffic is generated as a result of athletic or other activities conducted or sponsored by a
state institution of higher education; and when such
(ii) The assistance has been requested by the local peace officers local law-enforcement
agency.
(F) Campus police officers may assist a local law-enforcement agency in any location under
the agency's jurisdiction at the request of the agency.
(d) The salary of all such campus police officers shall be a campus police officer is paid by
the appropriate governing board. Each state institution may furnish each campus police officer with
a firearm and an official uniform to be worn while on duty. and The institution shall furnish and
require each officer while on duty to wear a shield with an appropriate inscription and to carry
credentials certifying to the person's identity and authority as a campus police officer. The
(e) A governing boards board may at their its pleasure revoke the authority of any campus
police officer and such officers serve at the will and pleasure of the governing board. The president or other administrative head of the state institution of higher education shall report the termination
of employment of a campus police officer by filing a notice to that effect in the office of the clerk
of each county in which the campus police officer's oath of office was filed.
§18B-4-5a. Crimes committed on campus of institutions of higher education.
(a) The president or a designee of each state institution of higher education in this state shall
on a regular and timely basis provide information to the public concerning alleged crimes occurring
on the institution's property which have been reported to a campus police officer or any other officer
of the institution.
(1) A crime shall be deemed reported whenever is considered reported when:
(A) A campus police officer or other officer of the institution determines that the report is
credible; when
(B) The report is submitted in writing and attested to by the victim on such forms as shall be
made available by forms at the institution for such purpose; or when
(C) The institution is notified by a law-enforcement agency of the reporting of a crime
alleged to have occurred on the institution's property.
(2) Such reports shall be are referred within twenty-four hours to the appropriate
law-enforcement agencies, as defined in section one, article twenty-nine, chapter thirty of this code,
for further investigation.
(b) For the state institutions of higher education under the jurisdiction of the Governing
Board of Marshall University and for the state institution of higher education known as West
Virginia University only, the campus police shall investigate a crime within their respective
jurisdictions for up to thirty days if the county prosecuting attorney does not reassign the case to
another agency sooner.
(c) The information required to be made available to the public regarding the crime report
shall be so available within ten days of the report. and The information shall include the nature of
the criminal offense, the date of the offense, the general location of the offense (such as a designation
of a specific building or area of the campus) and the time of day when the offense occurred.
Provided, That this requirement shall not be construed to
(1) This subsection does not require the release of any information which may disclose the
identity of the victim. Provided, however, That
(2) The institution shall withhold the information required to be made available to the public
for a longer period upon certification of investigative need that the information be withheld from the
public. such certification to
(A) The certification shall be filed by an officer of one of the investigating law-enforcement
agencies with the president of the institution or the designee to whom the duties required by this
section have been delegated. Provided further, That
(B) The required information may in no event not be withheld after an arrest has been made
in connection with the crime report.
(d) For purposes of this section, 'crime' is defined as those offenses required to be reported
under the federal Crime Awareness and Campus Security Act of 1990, as amended. and under
section eight-a, article one of this chapter. and 'Crime' includes murder, rape, robbery, aggravated
assault, burglary, motor vehicle theft and arrests for liquor, drug or weapons laws violations.
(e) The governing boards Council and Commission shall provide crime reporting forms to
institutions under their respective jurisdictions and promulgate such a legislative rule pursuant to the
provisions of article three-a, chapter twenty-nine-a of this code as are necessary for the
implementation of to implement this section. Such forms and rules shall be provided by the central
office to other institutions of higher education in this state to assist them with the implementation
of this section.
§18B-4-7. Accreditation of institutions of higher education; standards for degrees.
The Council shall make rules for the accreditation of community and technical colleges in
this state and shall determine the minimum standards for conferring degrees. The Commission shall
make rules for the accreditation of colleges and universities in this state, except the Governing
Boards of Marshall University and West Virginia University shall make rules for the state
institutions of higher education known as Marshall University and West Virginia University, and
shall determine the minimum standards for conferring degrees. The Governing Boards of Marshall University and West Virginia University shall promulgate rules pursuant to the provisions of section
six, article one of this chapter for the accreditation of the state institutions of higher education known
as Marshall University and West Virginia University. An institution of higher education may not
confer any degree on any basis of work or merit below the minimum standards prescribed by the
Council, or Commission or the governing boards. Nothing in this section infringes upon the rights,
including rights to award degrees, granted to any institution by charter given according to law, or by
actions of the Council or Commission or their predecessors, prior to the effective date of this section.
With the approval of the Commission, governing boards of institutions which currently offer
substantial undergraduate course offerings and a master's degree in a discipline are authorized to
grant baccalaureate degrees in that discipline.
Except as otherwise provided in this section, a charter or other instrument containing the right
to confer degrees of higher education status may not be granted by the State of West Virginia to any
institution, association or organization within the state, nor may any such degree be awarded, until
the condition of conferring the degree has first been approved in writing by the Council, or
Commission or appropriate governing board.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and facilities.
The governing boards, and the Commission and the Council are authorized and empowered
to enter into contracts and expend funds for programs, services and facilities provided by public and
private education institutions, associations, boards, agencies, consortia, corporations, partnerships,
individuals and local, state and federal governmental bodies within and outside of West Virginia in
order that maximum higher education opportunities of high quality may be provided to the citizens
of the state in the most economical manner. In no event may a contract for such services and
facilities be entered into unless the Commission, the Council or the governing boards have
determined that such services and facilities are necessary and would be at a savings to the state.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The Council, Commission and each governing board, through the Vice Chancellor for
Administration, shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the Council or Commission, as appropriate, and the state
institutions of higher education under their jurisdiction, except the Governing Boards of Marshall
University and West Virginia University, respectively, are subject to the provisions of subsection (d)
of this section.
(b) The Commission and Council jointly shall adopt rules governing and controlling
acquisitions and purchases in accordance with the provisions of this section. The rules shall assure
that the Council, Commission and governing boards:
(1) Do not preclude any person from participating and making sales thereof to the governing
board or to the Council or Commission except as otherwise provided in section five of this article.
Provision of consultant services such as strategic planning services will not preclude or inhibit the
governing boards, Council or Commission from considering any qualified bid or response for
delivery of a product or a commodity because of the rendering of those consultant services;
(2) Establish and prescribe specifications, in all proper cases, for materials, supplies,
equipment, services and printing to be purchased;
(3) Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) Negotiate for and make purchases and acquisitions in such quantities, at such times and
under contract, in the open market or through other accepted methods of governmental purchasing
as may be practicable in accordance with general law;
(5) Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase
by means of sealed bids and competitive bidding or to effect advantageous purchases through other
accepted governmental methods and practices;
(6) Post notices of all acquisitions and purchases for which competitive bids are being
solicited in the purchasing office of the specified institution involved in the purchase, at least two
weeks prior to making such purchases and ensure that the notice is available to the public during
business hours;
(7) Provide for purchasing in the open market;
(8) Provide for vendor notification of bid solicitation and emergency purchasing;
(9) Provide that competitive bids are not required for purchases of twenty-five thousand
dollars or less; and
(10) Provide for not fewer than three bids where bidding is required. If fewer than three bids
are submitted, an award may be made from among those received.
(c) The governing boards of Marshall University or West Virginia University, may seek the
assistance of the Attorney General in drafting and reviewing contracts, orders, bonds or other such
documents.
(d) Pursuant to this subsection, the Governing Boards of Marshall University and West
Virginia University, respectively, may:
(1) Purchase or acquire all materials, supplies, equipment, services and printing required for
the governing board without approval from the Commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as provided in subsection (f) of
this section;
(2) Make purchases from cooperative buying groups, consortia, the federal government or
from federal government contracts if the materials, supplies, services, equipment or printing to be
purchased is available from these groups and if this would be the most financially advantageous
manner of making the purchase;
(3) Select and acquire by contract or lease all grounds, buildings, office space or other space,
the rental of which is necessarily required by the governing board;
(4) Use purchase cards under terms approved for the Commission, the Council and governing
boards of state institutions of higher education and participate in any expanded program of use as
provided in subsection (w) of this section; and
(e) The governing boards shall adopt sufficient accounting and auditing procedures and
promulgate and adopt appropriate rules subject to the provisions of section six, article one of this
chapter to govern and control acquisitions, purchases, leases and other instruments for grounds,
buildings, office or other space or lease-purchase agreements.
(b) (f) The Council, Commission or each governing board, through the Vice Chancellor for
Administration, may issue a check in advance to a company supplying postage meters for postage used by that board, the Council or Commission and by the state institutions of higher education
under their jurisdiction.
(c) (g) When a purchase is to be made by bid, any or all bids may be rejected. However, all
purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied, their conformity with specifications,
their suitability to the requirements of the governing boards, Council or Commission and delivery
terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter
five-a of this code apply to the competitive bids made pursuant to this section.
(d) (h) The governing boards, Council and Commission shall maintain a purchase file, which
shall be a public record and open for public inspection. After the award of the order or contract, the
governing boards, Council and Commission shall indicate upon the successful bid that it was the
successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor
is not awarded the order or contract, the reason therefor. A record in the purchase file may not be
destroyed without the written consent of the Legislative Auditor. Those files in which the original
documentation has been held for at least one year and in which the original documents have been
reproduced and archived on microfilm or other equivalent method of duplication may be destroyed
without the written consent of the Legislative Auditor. All files, no matter the storage method, shall
be open for inspection by the Legislative Auditor upon request.
(e) (i) The Commission and Council also jointly shall adopt rules to prescribe qualifications
to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall
require that a person may not be employed as a buyer unless that person, at the time of employment,
either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any
business, commercial or industrial enterprise.
(f) (j) Any person making purchases and acquisitions pursuant to this section shall execute
a bond in the penalty of fifty thousand dollars, payable to the State of West Virginia, with a corporate
bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the Attorney General and conditioned upon the faithful performance of all duties in
accordance with this section and sections five through eight, inclusive, of this article and the rules
of the governing board and the Council and Commission. In lieu of separate bonds for such buyers,
a blanket surety bond may be obtained. Any such bond shall be filed with the Secretary of State.
The cost of any such bond shall be paid from funds appropriated to the applicable governing board
or the Council or Commission.
(g) (k) All purchases and acquisitions shall be made in consideration and within limits of
available appropriations and funds and in accordance with applicable provisions of article two,
chapter five-a of this code relating to expenditure schedules and quarterly allotments of funds.
Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are required to be encumbered and they may
be entered into the state's centralized accounting system by the staff of the Commission, Council or
governing boards to satisfy the requirements of article two, chapter five-a of this code and
specifically sections twenty-six, twenty-seven and twenty-eight of said article to determine whether
the amount of the purchase is within the Commission's, Council's or governing board's quarterly
allotment, is in accordance with the approved expenditure schedule and otherwise conforms to the
provisions of said article.
(h) (l) The governing boards, Council and Commission may make requisitions upon the
Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the
total of the appropriations for the governing board, Council or Commission, and the Auditor shall
draw a warrant upon the Treasurer for such accounts. All advance allowance accounts shall be
accounted for by the applicable governing board or the Council or Commission once every thirty
days or more often if required by the State Auditor.
(i) (m) Contracts entered into pursuant to this section shall be signed by the applicable
governing board or the Council or Commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval as to form by the Attorney
General is considered approved if the Attorney General has not responded within fifteen days of
presentation of the contract. A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and
labor/material payments, bonds and certificates of insurance which use terms and conditions or
standardized forms previously approved by the Attorney General and do not make substantive
changes in the terms and conditions of the contract do not require approval by the Attorney General.
The Attorney General shall make a list of those changes which he or she deems considers to be
substantive and the list, and any changes thereto, shall be published in the State Register. A contract
that exceeds the dollar amount requiring competitive sealed bids in this section shall be filed with
the State Auditor. If requested to do so, the governing boards, Council or Commission shall make
all contracts available for inspection by the State Auditor. The governing board, Council or
Commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a
bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance
of a contract.
(j) (n) If the governing board, Council or Commission purchases or contracts for materials,
supplies, equipment, services and printing contrary to the provisions of sections four through seven
of this article or the rules pursuant thereto, such purchase or contract is void and of no effect.
(k) (o) Any governing board or the Council or Commission, as appropriate, may request the
Director of purchases to make available, from time to time, the facilities and services of that
department to the governing boards, Council or Commission in the purchase and acquisition of
materials, supplies, equipment, services and printing and the director of purchases shall cooperate
with that governing board, Council or Commission, as appropriate, in all such purchases and
acquisitions upon such request.
(l) (p) Each governing board or the Council or Commission, as appropriate, shall permit
private institutions of higher education to join as purchasers on purchase contracts for materials,
supplies, services and equipment entered into by that governing board or the Council or
Commission. Any private school desiring to join as purchasers on such purchase contracts shall file
with that governing board or the Council or Commission an affidavit signed by the president of the
institution of higher education or a designee requesting that it be authorized to join as purchaser on
purchase contracts of that governing board or the Council or Commission, as appropriate. The private school shall agree that it is bound by such terms and conditions as that governing board or
the Council or Commission may prescribe and that it will be responsible for payment directly to the
vendor under each purchase contract.
(m) (q) Notwithstanding any other provision of this code to the contrary, the governing
boards, Council and Commission, as appropriate, may make purchases from cooperative buying
groups, consortia, the federal government or from federal government contracts if the materials,
supplies, services, equipment or printing to be purchased is available from cooperative buying
groups, consortia, the federal government or from a federal contract and purchasing from the
cooperative buying groups, consortia, federal government or from a federal government contract
would be the most financially advantageous manner of making the purchase.
(n) (r) An independent performance audit of all purchasing functions and duties which are
performed at any institution of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint Committee on Government and Finance
shall conduct the performance audit and the governing boards, Council and Commission, as
appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing
boards, Council or Commission.
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
shall provide for independent performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period that has elapsed since the date of
the preceding audit.
(3) Copies of all appropriate documents relating to any audit performed by the Governing
Boards of Marshall University and West Virginia University shall be furnished to the Joint
Committee on Government and Finance and the Legislative Oversight Commission on Education
Accountability within thirty days of the date the audit report is completed.
(o) (s) The governing boards shall require each institution under their respective jurisdictions
to notify and inform every vendor doing business with that institution of the provisions of section
fifty-four, article three, chapter five-a of this code, also known as the Prompt Pay Act of 1990.
(p) (t) Consultant services, such as strategic planning services, may not preclude or inhibit
the governing boards, Council or Commission from considering any qualified bid or response for
delivery of a product or a commodity because of the rendering of those consultant services.
(q) (u) After the Commission or Council, as appropriate, has granted approval for
lease-purchase arrangements by the governing boards, a governing board may enter into
lease-purchase arrangements for capital improvements, including equipment, except the Governing
Boards of Marshall University and West Virginia University are authorized to enter into
lease-purchase arrangements for the state institutions of higher education known as Marshall
University and West Virginia University without seeking the approval of the Commission or the
Council. Any lease-purchase arrangement so entered shall constitute a special obligation of the State
of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any
funds legally available to the institution and must be cancelable at the option of the governing board
or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof,
never constitutes an indebtedness of the State of West Virginia or any department, agency or political
subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and
may not be a charge against the general credit or taxing powers of the state or any political
subdivision thereof. Such facts shall be plainly stated in any lease-purchase agreement. Further, the
lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee
and the approval of the Attorney General of West Virginia. Proposals for any arrangement must be
requested in accordance with the requirements of this section and any rules or guidelines of the
Commission and Council. In addition, any lease-purchase agreement which exceeds one hundred
thousand dollars total shall be approved by the Attorney General of West Virginia. The interest
component of any lease-purchase obligation is exempt from all taxation of the State of West
Virginia, except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the
requirements set forth in the Internal Revenue Code of 1986, as amended, and any regulations
promulgated pursuant thereto are met, the interest component of any lease-purchase obligation also
is exempt from the gross income of the recipient for purposes of federal income taxation and may be designated by the governing board or the president of the institution as a bank-qualified
obligation.
(r) (v) Notwithstanding any other provision of this code to the contrary, the Commission,
Council and governing boards have the authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as
provided below:
(1) The Commission, Council and governing boards have sole authority to select and to
acquire by contract or lease all grounds, buildings, office space or other space, the rental of which
is necessarily required by the Commission, Council or governing boards for the institutions under
their jurisdiction. For state institutions of higher education other than Marshall University and West
Virginia University, the Chief Executive Officer of the Commission, Council or an institution shall
certify the following:
(A) That the grounds, buildings, office space or other space requested is necessarily required
for the proper function of the Commission, Council or institution;
(B) That the Commission, Council or institution will be responsible for all rent and other
necessary payments in connection with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or other space is not available on
grounds and in buildings currently owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission, Council or a governing board
shall determine the fair rental value for the rental of the requested grounds, buildings, office space
or other space, in the condition in which they exist, and shall contract for or lease the premises at a
price not to exceed the fair rental value.
(2) The Commission, Council and governing boards are authorized to enter into long-term
agreements for buildings, land and space for periods longer than one fiscal year but not to exceed
forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new
buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to
the provisions of this subsection shall be presented by the policy Commission or Council, as appropriate, to the Joint Committee on Government and Finance for prior review. Any such lease
shall contain, in substance, all the following provisions:
(A) That the Commission, Council or governing board, as lessee, has the right to cancel the
lease without further obligation on the part of the lessee upon giving thirty days' written notice to the
lessor at least thirty days prior to the last day of the succeeding month;
(B) That the lease is considered canceled without further obligation on the part of the lessee
if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise
acts to impair the lease or cause it to be canceled; and
(C) That the lease is considered renewed for each ensuing fiscal year during the term of the
lease unless it is canceled by the Commission, Council or governing board before the end of the
then-current fiscal year.
(3) The Commission, Council or institution which is granted any grounds, buildings, office
space or other space leased in accordance with this section may not order or make permanent
changes of any type thereto, unless the Commission, Council or governing board, as appropriate, has
first determined that the change is necessary for the proper, efficient and economically sound
operation of the institution. For purposes of this section, a 'permanent change' means any addition,
alteration, improvement, remodeling, repair or other change involving the expenditure of state funds
for the installation of any tangible thing which cannot be economically removed from the grounds,
buildings, office space or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings, office or other space, once approved
by the Commission, Council or governing board, may be signed by the Chief Executive Officer of
the Commission, Council or institution. Any lease or instrument exceeding one hundred thousand
dollars annually shall be approved as to form by the Attorney General. A lease or other instrument
for grounds, buildings, office or other space that contains a term, including any options, of more than
six months for its fulfillment shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules they consider necessary to
carry out the provisions of this section. The Governing Boards of Marshall University and West Virginia University shall promulgate rules pursuant to section six, article one of this chapter to
implement the provisions of this section.
(s) (w) Purchasing card use may be expanded by the Council, Commission and state
institutions of higher education pursuant to the provisions of this subsection.
(1) The Council and Commission jointly shall establish procedures to be implemented by the
Council, Commission and any institution under their respective jurisdictions using purchasing cards.
The procedures shall ensure that each maintains:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with the provisions of article three, chapter twelve of this code relating
to the purchasing card program; and
(C) Sufficient accounting and auditing procedures for all purchasing card transactions.
(2) By the first day of November, two thousand four, the Council and Commission jointly
shall present the procedures to the Legislative Oversight Commission on Education Accountability
for its adoption.
(3) Notwithstanding any other provision of this code to the contrary, if the Legislative
Oversight Commission on Education Accountability adopts the procedures, the Council,
Commission, and any institution authorized pursuant to subdivision (4) of this subsection, may use
purchasing cards for:
(A) Travel expenses directly related to the job duties of the traveling employee, including fuel
and food; and
(B) Any routine, regularly scheduled payment, including, but not limited to, utility payments
and real property rental fees. The Council, Commission and each institution, annually by the
thirtieth day of June, shall provide to the State Purchasing Division a list of all goods or services for
which payment was made pursuant to this provision during that fiscal year.
(4) The Commission and Council each shall evaluate the capacity of each institution under
its jurisdiction for complying with the procedures established pursuant to subdivision (3) of this
subsection. The Commission and Council each shall authorize expanded use of purchasing cards
pursuant to said subdivision for any such institution it determines has the capacity to comply.
§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other
unneeded materials.
(a) The Commission, the Council and the governing boards shall dispose of obsolete and
unusable equipment, surplus supplies and other unneeded materials, either by transfer to other
governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The
Commission, the Council and each governing board shall adopt rules governing and controlling the
disposition of all such equipment, supplies and materials.
(1) At least ten days prior to the disposition, the Commission, the Council or the governing
boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which
the equipment, supplies and materials are located, the availability or sales of such disposable
equipment, supplies and materials.
(2) The Commission, the Council or governing boards, as applicable, may sell the disposable
equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may
transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer,
exchange or trade, then without advertising), in whole or in part, as sound business practices may
warrant under existing circumstances and conditions.
(3) The requirements set forth in this subsection apply to Marshall University and West
Virginia University only to the extent that those items of obsolete and unusable equipment, surplus
supplies and other unneeded materials exceed five thousand dollars in recorded net book value.
Marshall University and West Virginia University may dispose of obsolete and unusable computers
and computer-related equipment pursuant to the provisions of section two, article three of this
chapter.
(b) The Commission, Council or governing board, as appropriate, except for Marshall
University and West Virginia University, shall report semiannually annually to the Legislative
Auditor, all sales of commodities made during the preceding six months.
(1) The report shall include a description of the commodities sold, the name of the buyer to
whom each commodity was sold, and the price paid by the buyer.
(2) Marshall University and West Virginia University shall report biennually to the
Legislative Auditor the total sales of commodities made during the preceding biennium along with
the total recorded net book value of such commodities.
(c) The proceeds of sales or transfers shall be deposited in the State Treasury to the credit on
a pro rata basis of the fund or funds from which the purchase of the particular commodities or
expendable commodities was made. The Commission, Council or governing board, as appropriate,
may charge and assess fees reasonably related to the costs of care and handling with respect to the
transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to
the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The Governing Boards of Marshall University and West Virginia University each shall
ensure the fiscal integrity of its operations using best business and management practices.
(1) The practices include at least the following:
(A) Complying with Generally Accepted Accounting Principles of the Governmental
Accounting Standards Board (GAAP); and the Generally Accepted Government Auditing Standards
of the Government Accountability Office (GAGAS);
(B) Operating without material weakness in internal controls as defined by GAAP, GAGAS
and, where applicable, the Office of Management and Budget (OMB) Circular A-133;
(C) Maintaining annual audited financial statements with an unqualified opinion;
(D) Presenting annual audited financial statements to the respective governing board;
(E) Maintaining quarterly financial statements certified by the chief financial officer of the
institution; and
(F) Implementing best practices from Sarbanes-Oxley, or adopting the applicable tenets of
Sarbanes-Oxley as best practices.
(2) Marshall University, West Virginia University and the research corporation of each:
(A) Shall comply with the OMB Circular A-133 annual grant award audit requirements; and
(B) Is exempt from the provisions of section fourteen, article four, chapter twelve of this
code.
(3) Within thirty days of the completion of the financial audit report, the Governing Boards
of Marshall University and West Virginia University each shall furnish to the Commission, the
Legislative Oversight Commission on Education Accountability, and the Joint Committee on
Government and Finance copies of the annual audited financial statements.
(a) (b) The Commission or Council, as appropriate, shall ensure the fiscal integrity of any
electronic process conducted at its offices or at any institution and at all other institutions using best
business and management practices.
(b) (c) Marshall University, West Virginia University, the Council and the Commission each
shall implement a process whereby, to the maximum extent practicable, employees of Marshall
University, West Virginia University, the Council, Commission and any state institution all other
state institutions of higher education receive their wages via electronic transfer or direct deposit.
(c) (d) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this
code, and except as otherwise provided in this subsection, the amount of any purchase made with
a purchasing card used by the Council, the Commission or any other institution of higher education
may not exceed five thousand dollars.
(1) Subject to approval of the purchasing division of the department of administration
Auditor, any emergency payment and any routine, regularly scheduled payment, including, but not
limited to, utility payments, contracts and real property rental fees, may exceed this amount limit by
an amount to be determined by the Auditor.
(2) The Council, Commission or and any state institution of higher education may use a
purchasing card for travel expenses directly related to the job duties of the traveling employee.
Where approved by the auditor, such expenses may exceed five thousand dollars by an amount to
be determined by the auditor. Traveling expenses may include registration fees and airline and other
transportation reservations, if approved by the administrative head president of the institution.
Traveling expenses may not include fuel or food purchases except, the state institutions of higher
education known as Marshall University and West Virginia University may include in traveling
expenses the purchase of fuel and food.
(3) The state institutions known as Marshall University and West Virginia University each
shall maintain one purchasing card for use only in a situation declared an emergency by the
institution's president. The Council, Commission and each institution all other institutions shall
maintain one purchase card for use only in and for situations a situation declared an emergency by
the president of the institution and approved by the appropriate chancellor. Such Emergencies may
include, but are not limited to, partial or total destruction of a campus facility; loss of a critical
component of utility infrastructure; heating, ventilation or air condition failure in an essential
academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or
national emergency situation that has a direct impact on the campus.
(d) (e) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this
code, or any other provision of this code or law to the contrary, by the thirtieth day of June, two
thousand four the Auditor shall accept any receiving report submitted in a format utilizing electronic
media. and from the effective date of this section The Auditor shall conduct any audit or
investigation of the Council, Commission or any institution at its own expense and at no cost to the
Council, Commission or institution.
(e) The Legislature finds that an emergency exists, and, therefore, by the first day of July, two
thousand three
(f) The Council and the Commission shall file an emergency the Commission each shall
maintain a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a
of this code. The rule shall provide for institutions individually or cooperatively to maximize their
use of any of the following purchasing practices that are determined to provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) (g) Each institution shall establish a consortium with at least one other institution, in the
most cost-efficient manner feasible, to consolidate the following operations and student services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for consolidation as determined by the Council
or Commission.
(g) (h) An institution may charge a fee to each institution for which it provides a service or
performs an operation. The fee rate shall be in the best interest of both the institution being served
and the providing institution, as approved by the Council and Commission.
(h) (i) Any community and technical college, college and university may provide the services
authorized by this section for the benefit of any governmental body or public or private institution.
(i) Commencing with the two thousand four fall academic term
(j) Each institution shall reduce strive to minimize its number of low-enrollment sections of
introductory courses. To the maximum extent practicable, institutions shall use distance learning
to consolidate the course sections. Marshall University, West Virginia University, the Council and
Commission shall report the progress of the reduction to reductions as requested by the Legislative
Oversight Commission on Education Accountability. by the first day of December, two thousand
four
(j) (k) An institution shall use its natural resources and alternative fuel resources to the
maximum extent feasible. The institution:
(1) May supply the resources for its own use and for use by any other institution; The
institution
(2) May supply the resources to the general public at fair market value; An institution
(3) Shall maximize all federal or grant funds available for research regarding alternative
energy sources; and
(4) May develop research parks to further the purpose of this section and to expand the
economic development opportunities in the state.
(k) (l) Any cost-savings realized or fee procured or retained by an institution pursuant to
implementation of the provisions of this section shall be is retained by the institution.
(l) In assuring the fiscal integrity of processes implemented under this section, at a minimum,
the Commission has the following responsibilities:
(1) To conduct a performance audit of the policies, procedures and results of the procurement
of goods and service by the state institutions of higher education;
(2) To make progress reports on the implementation of this section to the Legislative
Oversight Commission on Education Accountability throughout the two thousand three interim
meetings period;
(3) To make a comprehensive report to the Legislative Oversight Commission on Education
Accountability by the first day of December, two thousand three, on the result of the performance
audit, together with any recommendations for additional actions that might be taken to improve the
efficiency, effectiveness and economy of the administrative operations of the state institution of
higher education, and the Commission.
(m) The provisions of subsection (b) of this section do not apply to the state institutions
known as Marshall University and West Virginia University. Each is authorized but not required
to comply with the provisions of subsections (f), (g) and (h) of this section.
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
each shall promulgate a rule on purchasing procedures pursuant to the provisions of section six,
article one of this chapter. Neither institution is subject to the rules required by said subsection (f).
(2) If either governing board elects to implement the provisions of said subsection (g), the
following conditions apply:
(A) The governing board makes the determination regarding any additional operation or
service which is appropriate for consolidation without input from the Council or Commission;
(B) The governing board sets the fee charged to any institution for which it provides a service
or performs an operation. The fee rate shall be in the best interest of both the institution being served
and the providing institution, but it is not subject to approval by the Council or Commission; and
(C) The governing board may not implement the provisions of this subdivision in a manner
which supercedes the requirements established in section twelve, article three-c of this chapter.
(m) The Commission shall report annually to the Legislative Oversight Commission on
Education Accountability regarding any savings achieved by implementing the provisions of this
section.
§18B-5-10. Medical professional liability insurance and risk management functions.
(a) The Legislature finds that, while recent reforms have helped to address the rising costs
and limited availability of medical malpractice and risk management insurance in West Virginia, the
state's doctoral-granting research universities and their medical schools continue to face significant
challenges related to the cost and operation of insurance and risk management programs.
(b) The Legislature further finds that the availability of cost-efficient insurance and risk
management programs is essential to the long-term financial integrity and viability of these
universities and their medical and other health professional schools.
(c) It is the responsibility of the Legislature to make the best use of available resources and
to assure the availability of high quality medical education to meet the needs of the citizens of the
state.
(d) Therefore, to aid the medical and other health professional schools in meeting these goals
and objectives, the following program is authorized:
(1) Upon the agreement of the West Virginia State Board of Risk and Insurance Management,
the health professionals schools under the jurisdiction of the Governing Boards of Marshall
University and West Virginia University, respectively, and the West Virginia School of Osteopathic
Medicine may participate, separately, in a self-insurance retention program in conjunction with the
state insurance program administered by the West Virginia State Board of Risk and Insurance Management to provide medical professional liability coverage to its health care professionals and
students.
(2) In administering the self-insurance retention program, each governing board has the
authority to administer, manage and/or settle its own medical professional liability insurance claims.
(e) Notwithstanding the provisions of article twelve, chapter twenty-nine of this code, the
West Virginia State Board of Risk and Insurance Management is hereby authorized and empowered
to enter into separate agreements with the health professionals schools under the jurisdiction of the
Governing Boards of Marshall University and West Virginia University, respectively, and with the
West Virginia School of Osteopathic Medicine to develop and implement a self-insurance retention
program for medical professional liability insurance.
(f) Prior to the implementation of any self-insurance retention program, the Governing
Boards of Marshall University, West Virginia University and the West Virginia School of
Osteopathic Medicine, respectively, shall submit the proposed program plan to the state Insurance
Commissioner for review:
(1) The review shall include, but is not limited to, claims handling procedures, investment
policies, and reserving practices.
(2) A governing board may not implement a plan until it has been reviewed by the state
Insurance Commissioner.
(g) The Insurance Commissioner and Board of Risk and Insurance Management each may
promulgate an emergency rule as necessary pursuant to the provisions of article three, chapter
twenty-nine-a of this code, to specify further the requirements of self-insurance retention programs
under this section.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for each school term for the different
classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among the tuition and fees any one or more of the following as defined
in section one-b of this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue account for each of the following
classifications of fees:
(1) All tuition and required educational and general fees collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees collected to support existing systemwide
and institutional debt service and future systemwide and institutional debt service, capital projects
and campus renewal for educational and general facilities.
(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable
from such accounts, an institution may expend funds from each such special revenue account for any
purpose for which funds were collected within that account regardless of the original purpose for
which the funds were collected.
(c) The purposes for which tuition and fees may be expended include, but are not limited to,
health services, student activities, recreational, athletic and extracurricular activities. Additionally,
tuition and fees may be used to finance a student's attorney to perform legal services for students in
civil matters at the institutions: Provided, That the legal services are limited only to those types of
cases, programs or services approved by the administrative head of the institution where the legal
services are to be performed.
(d) The Commission and Council jointly shall propose a rule for legislative approval in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the
fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the Commission and
Council jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior
approval of the Legislative Oversight Commission on Education Accountability.
(f) The schedule of all tuition and fees, and any changes therein, shall be entered in the
minutes of the meeting of the appropriate governing board and the board shall file with the
Commission or Council, or both, as appropriate, and the Legislative Auditor a certified copy of such
schedule and changes.
(g) The boards shall establish the rates to be charged full-time students, as defined in section
one-b of this article, who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have
their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate
students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata
based upon one ninth of the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other nontraditional time periods shall be
prorated based upon the number of credit hours for which the student enrolls in accordance with the
above provisions.
(h) All fees are due and payable by the student upon enrollment and registration for classes
except as provided in this subsection:
(1) The governing boards shall permit fee payments to be made in installments over the
course of the academic term. All fees shall be paid prior to the awarding of course credit at the end
of the academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment
methods which may be generally available to students for the payment of fees. The governing boards
may charge the students for the reasonable and customary charges incurred in accepting credit cards
and other methods of payment.
(3) If a governing board determines that a student's finances are affected adversely by a legal
work stoppage, it may allow the student an additional six months to pay the fees for any academic
term. The governing board shall determine on a case-by-case basis if the finances of a student are
affected adversely.
(4) The Commission and Council jointly shall propose a rule in accordance with the
provisions of article three-a, chapter twenty-nine-a of this code, defining conditions under which an
institution may offer tuition and fee deferred payment plans through the institution or through third
parties.
(5) An institution may charge interest or fees for any deferred or installment payment plans.
(i) In addition to the other fees provided in this section, each governing board may impose,
collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest
research group if the students at the institution demonstrate support for the increased fee in a manner
and method established by that institution's elected student government. The fee may not be used
to finance litigation against the institution.
(j) Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or
other purposes in accordance with the tuition rule proposed by the Commission and Council jointly
pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs;
(3) Provide that a board of governors may propose to the Commission, Council or both, as
appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the Commission, Council or both, as appropriate, and either
the students below the senior level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services
such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the
amount of money generated for the institution by the fees. All state subsidies for the auxiliary
services shall cease five years from the date the mandatory auxiliary fee is implemented;
(E) The Commission, Council or both, as appropriate, shall certify to the Legislature by the
first day of October in the fiscal year following implementation of the fee, and annually thereafter,
the amount of fees collected for each of the five years;
(4) Establish methodology, where applicable, to ensure that, within the appropriate time
period under the compact, community and technical college tuition rates for community and
technical college students in all independently accredited community and technical colleges will be
commensurate with the tuition and fees charged by their peer institutions.
(k) A penalty may not be imposed by the Commission or Council upon any institution based
upon the number of nonresidents who attend the institution unless the Commission or Council
determines that admission of nonresidents to any institution or program of study within the
institution is impeding unreasonably the ability of resident students to attend the institution or
participate in the programs of the institution. The institutions shall report annually to the
Commission or Council on the numbers of nonresidents and such other enrollment information as
the Commission or Council may request.
(l) Tuition and fee increases of the governing boards, except for the Governing Boards of the
state institutions of higher education known as Marshall University and West Virginia University,
are subject to rules adopted by the Commission and Council jointly pursuant to this section and in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivision (4) of this subsection, a governing board of an
institution under the jurisdiction of the Commission may propose tuition and fee increases of up to
nine and one-half percent for undergraduate resident students for any fiscal year. The nine and
one-half percent total includes the amount of increase over existing tuition and fees, combined with
the amount of any newly established, specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction of the Council may propose
tuition and fee increases of up to four and three quarters percent for undergraduate resident students
for any fiscal year. The four and three-quarters percent total includes the amount of increase over
existing tuition and fees, combined with the amount of any newly established, specialized fee which
may be proposed by a governing board.
(3) The Commission or Council, as appropriate, shall examine individually each request from
a governing board for an increase. (4) The Governing Boards of Marshall University and West Virginia University, as these provisions relate to the state institutions of higher education known as
Marshall University and West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed
by this section without seeking approval from the Commission; and
(B) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident
students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the
administratively linked institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and Technical College at West Virginia
University Institute of Technology and the regional campuses known as West Virginia University
Institute of Technology and West Virginia University at Parkersburg.
(5) Any proposed tuition and fee increase for state institutions of higher education other than
Marshall University and West Virginia University requires the approval of the Commission or
Council, as appropriate. In determining whether to approve or disapprove deny the governing
board's request, the Commission or Council shall determine the progress the institution has made
toward meeting the conditions outlined in this subdivision and shall make this determination the
predominate factor in its decision. The Commission or Council shall consider the degree to which
each institution has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the
satisfaction of the Commission or Council;
(B) Is consistently achieving the benchmarks established in the compact of the institution
pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the
statewide compact established in articles one and one-a of this chapter;
(D) Is implementing the efficiency measures required by section nine, article five of this
chapter;
(E) (D) Has demonstrated to the satisfaction of the Commission or Council that an increase
will be used to maintain high-quality programs at the institution;
(F) (E) Has demonstrated to the satisfaction of the Commission or Council that the institution
is making adequate progress toward achieving the goals for education established by the southern
regional education board; and
(G) (F) To the extent authorized, will increase by up to five percent the available tuition and
fee waivers provided by the institution. The increased waivers may not be used for athletics.
(2) (6) This section does not require equal increases among institutions or require any level
of increase at an institution.
(3) (7) The Commission and Council shall report to the Legislative Oversight Commission
on Education Accountability regarding the basis for each approval or denial as determined using the
criteria established in subdivision (1) (5) of this subsection.
(4) For fiscal year two thousand five only, a governing board of any institution under the
jurisdiction of the Commission may increase tuition and fees for undergraduate resident students by
one and one-half percent greater than the amount authorized by the Commission pursuant to the
provisions of this section.
(m) The amount of fees assessed immediately prior to the effective date of this act under the
provisions of this article relating to a higher education resource fee, a faculty improvement fee, a
medical education fee, a health professions fee and a student activities fee are included in the
appropriate tuition or fees classifications established under subsection (a) of this section.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers for students in undergraduate
studies at institutions under its jurisdiction entitling recipients to waiver of tuition, capital and other
fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the Governing Boards of Marshall University
and West Virginia University, respectively, for the state institutions of higher education known as
Marshall University and West Virginia University, are subject to the provisions of section six-a of
this article;
(b) For the governing boards of A state institution institutions of higher education other than
the state institutions of higher education known as Marshall University and West Virginia
University, the following conditions apply:
(1) An institution may not have in effect at any time a number of undergraduate fee waivers
which exceeds five percent of the number of full-time equivalent undergraduate students registered
during the fall semester of the immediately preceding academic year.
(b) (2) Each undergraduate fee waiver entitles the recipient thereof to attend a designated
state institution of higher education without payment of the tuition, capital and other fees as may be
prescribed by the governing board and is for a period of time not to exceed eight semesters of
undergraduate study.
(c) (3) The governing board shall make rules pursuant to the provisions of section six, article
one of this chapter, governing the award of undergraduate fee waivers; the issuance and cancellation
of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the
recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may
not be inconsistent with the provisions of this section.
(d) (4) The awarding of undergraduate fee waivers shall be entered in the minutes of the
meetings of the governing board.
(e) (5) Students enrolled in an administratively-linked community and technical college shall
be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a
governing board. The number to be awarded to students of the community and technical college is
based upon the full-time equivalent enrollment of that institution.
§18B-10-6. Fee waivers - Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate study by the provisions of section
five of this article, each governing board periodically may establish fee waivers for study in graduate
and professional schools under its jurisdiction, including medicine and dentistry, entitling the
recipients to waiver of tuition, capital, and other fees, subject to the following conditions and
limitations:
(a) West Virginia University may not have in effect at any time graduate and professional
school fee waivers in a number which exceeds ten percent of the number of full-time equivalent
graduate and professional students registered during the corresponding fall semester, spring semester
and summer term of the immediately preceding academic year. In addition to the above ten percent,
all graduate assistants employed by West Virginia university shall be granted a fee waiver. Graduate
and professional fee waivers established by the Governing Boards of Marshall University and West
Virginia University, respectively, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than Marshall
University and West Virginia University the following conditions apply:
(1) An institution may not have in effect at any time a number of graduate and professional
school fee waivers which exceeds five percent of the number of full-time equivalent graduate and
professional students registered during the corresponding fall semester, spring semester and summer
term of the immediately preceding academic year. In addition to the above five percent, all graduate
assistants employed by these institutions shall be granted a fee waiver.
(c) (2) Each graduate or professional school fee waiver entitles the recipient to waiver of the
tuition, capital and other fees as may be prescribed by the governing boards and is for a period of
time not to exceed the number of semesters normally required in the recipient's academic discipline.
(d) (3) The governing boards shall make rules pursuant to the provisions of section six, article
one of this chapter, governing the award of graduate and professional school fee waivers; the
issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the
fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee
waivers. These rules may not be inconsistent with the provisions of this section.
(e) (4) The awarding of graduate and professional school fee waivers shall be entered in the
minutes of the meeting of each governing board.
§18B-10-6a. Undergraduate, graduate and professional fee waivers - Marshall University and
West Virginia University.
(a) Undergraduate fee waivers. --
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
may establish fee waivers for students in undergraduate studies at institutions under their jurisdiction
which entitle recipients to waiver of tuition, capital and other fees, in whole or in part.
(2) Each undergraduate fee waiver is for a period of time not to exceed eight semesters of
undergraduate study.
(3) Each governing board shall promulgate rules pursuant to the provisions of section six,
article one of this chapter to govern the award of undergraduate fee waivers; the issuance and
cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers
by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These
rules may not be inconsistent with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered in the minutes of the
meetings of the governing board.
(5) Students enrolled in an administratively linked community and technical college shall be
awarded a proportionate share of the total number of undergraduate fee waivers awarded by a
governing board. The number to be awarded to students of the community and technical college is
based upon the full-time equivalent enrollment of that institution.
(b) Graduate and professional school fee waivers. --
(1) In addition to the fee waivers authorized for undergraduate study by subsection (a) of this
section, the Governing Boards of Marshall University and West Virginia University, respectively,
may establish fee waivers for study in graduate and professional schools under its jurisdiction,
including medicine and dentistry, which entitle the recipients to waiver of tuition, capital, and other
fees, in whole or in part.
(2) Each graduate or professional school fee waiver entitles the recipient to waiver of the
tuition, capital, and other fees, in whole or in part, as may be prescribed by the governing boards and
is for a period of time not to exceed the number of semesters normally required in the recipient's
academic discipline.
(3) The governing boards shall promulgate rules pursuant to the provisions of section six,
article one of this chapter, governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the
fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee
waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of graduate and professional school fee waivers shall be entered in the
minutes of the meeting of each governing board.
ARTICLE 11. MISCELLANEOUS INSTITUTES AND CENTERS.
§18B-11-7. Regional Brownfield Assistance Centers.
(a) For the purposes of this section, 'eligible entities' means government entities as defined
by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, at 42 U. S. C. §9604 or nonprofit organizations as defined by the Federal Financial
Assistance Management Improvement Act at 31 U. S. C. §6101.
(b) Marshall University and West Virginia University each shall establish a nonprofit
Regional Brownfield Assistance Center through the corporations set out in article twelve of this
chapter for the purposes of expediting the redevelopment of Brownfield sites. The Centers shall
provide assistance to eligible entities on state and federal Brownfield programs, secure state and
federal funding for Brownfield redevelopment and acquire property eligible for state and federal
Brownfield assistance.
(b) The Center established by Marshall University serves the following counties:
(1) McDowell, Mercer, Monroe, Raleigh, Summers and Wyoming;
(2) Cabell, Lincoln, Logan, Mason, Mingo and Wayne;
(3) Boone, Clay, Kanawha and Putnam; and
(4) Braxton, Fayette, Greenbrier, Nicholas, Pocahontas and Webster.
(c) The Center established by West Virginia University serves the following counties:
(1) Calhoun, Jackson, Pleasants, Ritchie, Roane, Tyler, Wirt and Wood;
(2) Brooke, Hancock, Marshall, Ohio and Wetzel;
(3) Barbour, Doddridge, Gilmer, Harrison, Lewis, Marion, Monongalia, Preston, Randolph,
Taylor, Tucker and Upshur; and
(4) Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral, Morgan and Pendleton.
(d) To accomplish the purposes of this section, the Regional Brownfield Assistance Centers
each have powers and duties including, but not limited to, the following:
(1) Acquiring property that is eligible for state and federal Brownfield assistance pursuant
to the Small Business Liability Relief and Brownfields Revitalization Act (Public Law No. 107-118,
185 stat. 2356) and the West Virginia Voluntary Remediation and Redevelopment Act established
in article twenty-two, chapter twenty-two of this code;
(2) Serving as the developer of the property for the purposes of managing and coordinating
remediation and redevelopment activities;
(3) Preparing an inventory of Brownfield sites within their respective geographic regions by
the first day of July, two thousand six, and updating the inventory of sites on an annual basis;
(4) Promoting and coordinating the development of Brownfield property by providing
training and technical assistance on Brownfield development, grant writing, site assessments,
remediation, community involvement and site preparation to eligible entities;
(5) Administering federal Brownfield Job Training Grants, the Brownfields Revolving Fund,
and other federal Brownfield financial assistance programs to assist eligible entities in their
Brownfield development efforts;
(6) Coordinating efforts to secure federal Brownfield funding by establishing priority
rankings and by other necessary measures to maximize federal financial assistance and eliminate
overlapping competition for federal dollars;
(7) Coordinating the development and publication by the first day of July, two thousand six,
of a website to provide education and appropriate information on Brownfields development in West
Virginia; and
(8) Coordinating with the West Virginia Development Office and the Department of
Environmental Protection to establish and track key Brownfield economic statistics and conduct
Brownfield conferences, as appropriate.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Legislative findings; creation of Governor's Commission on Graduate Study in
Science, Technology, Engineering, and Mathematics; membership;
report.
(a) The Legislature finds that West Virginia ranks below most other states on key indicators
of scientific and technical capacity, including the number of scientists and engineers who hold
doctoral degrees, the number of science and engineering post-doctorates and the number of science
and engineering graduate students.
(b) The Legislature further finds that this lack of scientific and technical capacity places the
state at a competitive disadvantage to other states in terms of generating economic development and
winning research grants, as evidenced by limited amounts of academic research and development
funding, industrial research and development, small business innovation grant awards,
technology-related start-up companies and the low number of high-tech jobs.
(c) To address these findings, there is created the Governor's Commission on Graduate Study
in Science, Technology, Engineering and Mathematics, which may be cited as the STEM
Commission, to address issues which include, but are not limited to, the following:
(1) Promoting coordination between higher education and K-12 education to create a
seamless system of science and mathematics education and improve science and mathematics
education at all levels;
(2) Increasing the number of graduate students and post-doctorates in science, technology,
engineering and mathematics, including the number of women and minority graduate students in
these fields;
(3) Increasing the number of West Virginia undergraduate and graduate students who receive
nationally competitive scholarships and fellowships in science, technology, engineering and
mathematics, such as Goldwater, Howard Hughes, National Science Foundation and Udall
Fellowships;
(4) Improving the quality of graduate faculty and programs in science, technology,
engineering and mathematics;
(5) Aligning graduate programs in science, technology, engineering and mathematics with
the goals and objectives of the State EPSCoR Program, the State Science and Technology Advisory
Council, the West Virginia Development Office and the Doctoral Scholars Program of the Southern
Regional Education Board; and
(6) Increasing the quantity and enhancing the quality of academic research, as measured by
federal and external expenditures for research and development.
(d) STEM Commission membership. --
(1) The Commission is comprised of fourteen members selected as follows:
(A) The Governor or designee, who serves as Chair;
(B) The Chancellor for the Higher Education Policy Commission; (C) The Director of
Academic Affairs of the Higher Education Policy Commission;
(D) The Executive Director of the State EPSCoR Program;
(E) The Executive Director of the West Virginia Development Office or designee;
(F) The provosts of Marshall University and West Virginia University or their designees;
(G) Five members appointed by the Governor who represent academic, business and research
interests; and
(H) The Chair of the House of Delegates Committee on Education and the Chair of the West
Virginia Senate Committee on Education as ex officio, nonvoting members who serve in an advisory
capacity.
(2) At least two of the Governor's appointees are state residents.
(3) The Governor shall make appointments to the Commission so that members may begin
their deliberations no later than the first day of July, two thousand five.
(e) The Commission shall complete its work and report its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate the
recommendations, to the Legislative Oversight Commission on Education Accountability, the Higher
Education Policy Commission and the State EPSCoR Advisory Council by the first day of
December, two thousand five."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 658),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Argento.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 603) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was
reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 603 --"A Bill to repeal §18B-1-7 and §18B-1-9 of the Code of West
Virginia, 1931, as amended; to repeal §18B-2-1, §18B-2-2 and §18B-2-3 of said code; to repeal
§18B-3-5 and §18B-3-7 of said code; to repeal §18B-5-2d of said code; to amend and reenact
§5-6-4a of said code; to amend said code by adding thereto a new section, designated §12-1-12b; to
amend and reenact §12-3-5, §12-3-6, §12-3-7 and §12-3-8 of said code; to amend and reenact
§18-2-23a of said code; to amend said code by adding thereto a new section, designated §18-2-24;
to amend said code by adding thereto a new section, designated
§18A-3-11
; to amend and reenact
§18A-3A-1 and §18A-3A-2b of said code; to amend said code by adding thereto a new section,
designated §18A-3A-6; to amend and reenact §18B-1-3 and §18B-1-6 of said code; to amend and
reenact §18B-1A-2 and §18B-1A-6 of said code; to amend and reenact §18B-1B-4, §18B-1B-5 and
§18B-1B-6 of said code; to amend said code by adding thereto a new section, designated
§18B-1B-13; to amend and reenact §18B-2A-3 and §18B-2A-4 of said code; to amend said code by
adding thereto a new section, designated §18B-2A-7; to amend said code by adding thereto a new
section, designated §18B-2B-9; to amend and reenact §18B-3-1, §18B-3-2 and §18B-3-3 of said
code; to amend said code by adding thereto a new section, designated §18B-3-4; to amend and
reenact §18B-4-5, §18B-4-5a, §18B-4-6 and §18B-4-7 of said code; to amend and reenact §18B-5-3,
§18B-5-4, §18B-5-7 and §18B-5-9 of said code; to amend said code by adding thereto a new section,
designated §18B-5-10; to amend and reenact §18B-10-1, §18B-10-5 and §18B-10-6 of said code; to amend said code by adding thereto a new section, designated §18B-10-6a; to amend said code by
adding thereto a new section, designated §18B-11-7; and to amend and reenact §18B-14-11 of said
code, all relating to public and higher education generally; providing flexibility measures for certain
state institutions of higher education, and providing for future application to additional state
institutions of higher education; expanding the personnel application for certain professional
development provisions; establishing a structure to enhance collaboration between certain state and
regional entities in providing professional development; requiring certain state and regional entities
to ensure coordination and collaboration in professional development efforts, and designating certain
priorities for professional development; requiring study of professional development standards and
best practices; limiting the circumstances for procuring out-of-state services regarding certain
professional development issues; reconstituting the Center for Professional Development Board and
modifying its membership and certain required employee provisions; prohibiting the required
attendance of certain employees at certain professional development programs under certain
circumstances; requiring a professional development study and report; creating the position of
Coordinator of the Principals Academy; transferring powers, authorities, responsibilities and duties
between certain entities; definitions; excepting certain institutions from certain required reports to
Joint Committee on Government and Finance regarding real property contracts and agreements;
requiring transfer of real property under certain circumstances from Higher Education Policy
Commission to certain institutions; clarifying real property retention rights of Policy Commission
for certain jointly used real property; modifying format and documentation requirements for
acceptance of certain documents by State Auditor; expanding permissible uses for purchase card;
transferring to State Auditor certain duties regarding purchase cards; transferring to State Auditor
authority to approve certain purchase card payments designated to exceed the purchase amount limits
and to set the amount by which such payments may exceed the limits; modifying for certain
institutions certain document submission requirements for travel expense reimbursement; clarifying
requirements for promulgation of higher education rules; requiring certain institutions to promulgate
certain rules; establishing certain requirements for rule adoption, validation, enforcement and
reporting; limiting certain authorities when rules not adopted; clarifying legislative intent relating to mission of certain institutions; limiting Policy Commission jurisdiction, power, responsibility and
authority regarding certain institutions; modifying Policy Commission duties; expanding Policy
Commission discretion in setting Chancellor's salary; specifying limitation of certain entities on
exercising certain authorities and fulfilling certain responsibilities; modifying responsibility for
assigning institutions' geographic areas of responsibility; modifying authorization for certain state
institutions of higher education to offer graduate programs under certain circumstances, and
expanding the authorized institutions to offer such programs; transferring to certain institutions
authority for capital project need identification, prioritization and selection; modifying criteria
considered for capital project selection; preserving the jurisdiction and authority of certain higher
education entities to manage technology; clarifying authority of Policy Commission to assess certain
fees; specifying when discharging certain duties requires consultation among various higher
education entities; transferring to certain institutions authority to approve tuition and fee increases,
review and approve academic programs, develop capital budgets and set standards for conferring
degrees; exempting certain institutions from Attorney General and Policy Commission approval
requirements for executing certain documents, instruments and purchases; requiring study and report
of recommendations relating to higher education personnel issues; establishing scope of personnel
study and charges for implementation; requiring employee participation; modifying requirements and
authorities regarding delegation of powers by certain higher education entities; expanding and
modifying the powers and duties of research, doctoral-granting public universities and their
governing boards; providing legislative findings, purpose and intent for such expansion and
modification; for certain institutions expanding authority and establishing parameters and procedures
for donating certain surplus computers and related items; limiting application to certain institutions
of certain surplus item disposal requirements; defining the relationship between the Policy
Commission and certain governing boards and between the West Virginia Council for Community
and Technical College Education and certain governing boards; establishing and defining the duties
of certain governing boards to address state priorities and the goals for post-secondary education
established by the Legislature; defining state priorities; requiring annual report of progress;
expanding jurisdiction of certain parking and vehicle operating violations for certain institutions; specifying certain acceptable qualifications for employment as campus police officer at certain
institutions; expanding authority of certain campus police officers; expanding responsibility of
certain institutions to investigate certain crimes; expanding authority of certain institutions to expend
the excess of certain parking fees collected; increasing fines and expanding penalty options for
certain parking and vehicle operating violations; exempting certain institutions from requirements
to participate in certain cooperative purchasing and operating arrangements; specifying responsibility
of certain institutions for ensuring fiscal integrity of operations; establishing requirements for
implementing best business and management practices for certain institutions, including certain
required reports; authorizing state medical and health professionals schools to participate in self-
insurance retention programs pursuant to certain conditions; authorizing state Board of Risk and
Insurance Management to enter into agreements with state medical and health professionals schools
to develop and implement self-insurance retention programs; requiring plan review by state
Insurance Commissioner prior to implementing self-insurance retention programs; authorizing
Insurance Commissioner and state Board of Risk and Insurance Management to promulgate
emergency rules; expanding discretion of certain institutions to offer undergraduate and
graduate-level fee waivers, eliminating certain waiver award restrictions and requiring rule governing
waivers; requiring certain institutions to establish a nonprofit Regional Brownfield Assistance
Center; defining Assistance Center service regions; establishing Assistance Center powers and
duties; providing temporary authorization to engage in alternative investment options for certain
moneys of certain state institutions of higher education, and including a set expiration date for such
authorization; creating Governor's Commission on Graduate Study in Science, Technology,
Engineering and Mathematics; establishing membership; assigning charge to Commission; providing
legislative findings and requiring report to Legislative Oversight Commission on Education
Accountability; deleting, repealing and updating certain obsolete provisions; and making technical
corrections."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 659), 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: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 603) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
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. 248, Relating to requirement that technology expenditures be made in accordance with
Education Technology Strategic Plan.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment was reported by
the Clerk:
On page six, section three, by striking out "(a)".
On page six, section three, after the word "code," by inserting the word "the".
On page six, section three, by striking out all of subdivision (5) and inserting in lieu thereof
a new subdivision (5), to read as follows:
"(5) Develop a unified educational technology strategic plan as required in section five of this
article;".
On page seven, section three, subdivision (7), after the word "inform" by inserting the word
"to".
On page thirteen, section five, by striking out all of subsection (a) and inserting in lieu thereof
a new subsection (a), to read as follows:
"(a) The Governor's Advisory Council for Educational Technology shall develop a unified
educational technology strategic plan, and submit the plan to the Legislative Oversight Commission
on Education Accountability for approval on or before the first day of October, two thousand five.
On or before the first day of October in each year thereafter, the Council shall update the plan and
submit the plan to the Commission for approval. The time line for updating and revising the rule
and plan also shall be in accordance with the federal E-rate discount program. The plan is not
effective until approved by the Commission."
On page fourteen, section six, by striking out all of subdivision (2) and inserting in lieu
thereof a new subsection (2), to read as follows:
"(2) If the plan is not approved by the Legislative Oversight Commission on Education
Accountability, the plan has no effect;".
And,
By amending the title of the bill to read as follows:
S. B. 248-"A Bill to amend and reenact §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5,
§18-2J-6, and §18-2J-7 of the Code of West Virginia, 1931, as amended, relating to public and
higher education technology strategic plan; making findings and stating intent and purpose;
providing for advisory council for educational technology; providing powers and duties; providing
for goals and strategies for technology strategic plan; requiring approval of the plan by the legislative
oversight commission on education accountability; requiring allocation and expenditure of
technology appropriations in accordance with the plan with certain exceptions; report to legislative
oversight commission."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendments.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 660),
and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Schoen.
Absent And Not Voting: Fragale and Talbott.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 248) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 661), 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: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 248) 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 refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
S. B. 458, Permitting transfer of State Police for certain inappropriate conduct; relocation
expense.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment.
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 passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage of
S. B. 752 - "A Bill making a supplementary appropriation of federal funds out of the
Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending the
thirtieth day of June, two thousand five, to the Department of Environmental Protection - Division
of Environmental Protection, fund 8708, fiscal year 2005, organization 0313, by supplementing and
amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand five."
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (S. B. 752) to a committee was dispensed with, and was taken up for immediate consideration,
read a first time and ordered to second reading.
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. 80 - "Requesting the Joint Committee on Government and Finance study the West
Virginia State Board of Landscape Architects.
Whereas, The article concerning the West Virginia State Board of Landscape Architects has
not been updated for years; and
Whereas, The practice of landscape architecture has changed over the years and a need
exists to reevaluate the current structure of licensure by the Board; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the West
Virginia State Board of Landscape Architects; and, be it
Further Resolved, That the Joint Committee on Government and Finance update the
applicable provisions of the code concerning the West Virginia State Board of Landscape Architects;
and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2006, 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. 91 - "Requesting the Joint Committee on Government and Finance direct the
Legislative Oversight Commission on Health and Human Resources Accountability study the issue
of the availability and distribution of long-term care beds in the State of West Virginia."
Whereas, In 1992, the Legislature issued a moratorium prohibiting additional intermediate
care or skilled nursing beds within the state; and
Whereas, Since that moratorium, the nursing home industry has changed with the addition
of less intensive and less expensive care options; and
Whereas, Changing demographics and patterns of nursing facilities in the state have caused
a crisis in the ability of this state to offer continuity and access to long-term care for older West
Virginians; and
Whereas, With the addition of such options as adult day care, home care and assisted living,
the aging population of West Virginia is afforded an array of possibilities for care beyond the
traditional nursing home; and
Whereas, Medical technologies and an emphasis on preventative health care have resulted
in increased longevity of the population of older citizens; and
Whereas, The number of elderly Americans requiring some level of long-term care is
expected to double over the next 25 years, requiring a retooling of the manner in which individual
states address the needs of their aging populations; and
Whereas, A study of the availability and distribution of long-term care beds to tend to the
long-term care needs of the senior citizen population in West Virginia is necessary; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the
Legislative Oversight Commission on Health and Human Resources Accountability to study the issue of the availability and distribution of long-term care beds in the State of West Virginia; and,
be it
Further Resolved, That the Legislative Oversight Commission on Health and Human
Resources Accountability report to the regular session of the Legislature, 2006, 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, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 79, Requesting that the Joint Committee on Government and Finance study the
increasing drug problem in West Virginia.
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. 2011, Relieving health care providers of liability where an injury has resulted from a
prescribed drug or medical 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 7. ACTIONS FOR INJURIES.
§55-7-23. Prescription drugs and medical devices; limiting health care providers' liability
exposure.
(a) No health care provider, as defined in section two, article seven-b of this chapter, is liable
to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or
use of a medical device that was prescribed or used by the health care provider in accordance with
instructions approved by the U. S. Food and Drug Administration regarding the dosage and
administration of the drug, the indications for which the drug should be taken or device should be
used, and the contraindications against taking the drug or using the device: Provided, That the
provisions of this section shall not apply if: (1)the health care provider had actual knowledge that
the drug or device was inherently unsafe for the purpose for which it was prescribed or used or (2)a
manufacturer of such drug or device publicly announces changes in the dosage or administration of
such drug or changes in contraindications against taking the drug or using the device and the health
care provider fails to follow such publicly announced changes and such failure proximately caused
or contributed to the plaintiff's injuries or damages.
(b) The provisions of this section are not intended to create a new cause of action."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2011 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto anew section, designated §55-7-23, relating to removing health care providers'
exposure to liability where, in certain cases involving prescription drugs and medical devices, a
person has been injured; and exceptions."
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. 662), and there were--yeas
86, nays 13, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Barker, Butcher, Caputo, DeLong, Eldridge, Hrutkay, Longstreth, Manchin, Miley,
Sobonya, Spencer, Stevens and Walters.
Absent And Not Voting: Fragale.
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. 2011) 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. 2186, Restricting involuntary commitment for addicted persons to those who, as a
result of such addiction, are likely to cause serious harm to themselves or others.
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 clause and inserting in lieu thereof
the following:
"That §27-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted,
to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-2. Institution of proceedings for involuntary custody for examination; custody;
probable cause hearing; examination of individual.
(a) Any adult person may make an application for involuntary hospitalization for examination
of an individual when the person making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in section eleven, article one of this
chapter and exhibiting behaviors set forth in subdivision (1) or (2), subsection (a) of said section;
or
(2) The individual is mentally ill and, because of his or her mental illness, the individual is
likely to cause serious harm to himself or herself or to others if allowed to remain at liberty while
awaiting an examination and certification by a physician or psychologist.
Notwithstanding any provision of this subsection to the contrary, if the individual to be
examined under the provisions of this section is incarcerated in a jail, prison or other correctional
facility, only the chief administrative officer of the facility holding the individual may file the
application, and the application must include the additional statement that the correctional facility
itself cannot reasonably provide treatment and other services for the individual's mental illness or
addiction.
(b) The person making the application shall make the application under oath.
(c) Application for involuntary custody for examination may be made to the circuit court or
a mental hygiene commissioner of the county in which the individual resides or of the county in
which he or she may be found. When no circuit court judge or mental hygiene commissioner is
available for immediate presentation of the application, the application may be made to a magistrate
designated by the chief judge of the judicial circuit to accept applications and hold probable cause
hearings. A designated magistrate before whom an application or matter is pending may, upon the
availability of a mental hygiene commissioner or circuit court judge for immediate presentation of
an application or pending matter, transfer the pending matter or application to the mental hygiene
commissioner or circuit court judge for further proceedings unless otherwise ordered by the chief
judge of the judicial circuit.
(d) The person making the application shall give information and state facts in the application
as may be required by the form provided for this purpose by the supreme court of appeals.
(e) The circuit court, mental hygiene commissioner or designated magistrate may enter an
order for the individual named in the application to be detained and taken into custody for the
purpose of holding a probable cause hearing as provided for in subsection (g) of this section for the
purpose of an examination of the individual by a physician, psychologist, a licensed independent
clinical social worker practicing in compliance with article thirty, chapter thirty of this code or
advanced nurse practitioner with psychiatric certification practicing in compliance with article seven
of said chapter: Provided, That a licensed independent clinical social worker or an advanced nurse
practitioner with psychiatric certification may only perform the examination if he or she has
previously been authorized by an order of the circuit court to do so, said order having found that the licensed independent clinical social worker or advanced nurse practitioner with psychiatric
certification has particularized expertise in the areas of mental health and mental hygiene sufficient
to make such determinations as are required by the provisions of this section. The examination is
to be provided or arranged by a community mental health center designated by the secretary of the
department of health and human resources to serve the county in which the action takes place. The
order is to specify that the hearing be held forthwith and is to provide for the appointment of counsel
for the individual: Provided, however, That the order may allow the hearing to be held up to twenty-
four hours after the person to be examined is taken into custody rather than forthwith if the circuit
court of the county in which the person is found has previously entered a standing order which
establishes within that jurisdiction a program for placement of persons awaiting a hearing which
assures the safety and humane treatment of persons: Provided further, That the time requirements
set forth in this subsection shall only apply to persons who are not in need of medical care for a
physical condition or disease for which the need for treatment precludes the ability to comply with
said time requirements. During periods of holding and detention authorized by this subsection, upon
consent of the individual or in the event of a medical or psychiatric emergency, the individual may
receive treatment. The medical provider shall exercise due diligence in determining the individual's
existing medical needs and provide such treatment as the individual requires, including previously
prescribed medications. As used in this section, 'psychiatric emergency' means an incident during
which an individual loses control and behaves in a manner that poses substantial likelihood of
physical harm to himself, herself or others. Where a physician, psychologist, licensed independent
clinical social worker or advanced nurse practitioner with psychiatric certification has within the
preceding seventy-two hours performed the examination required by the provisions of this
subdivision, the community mental health center may waive the duty to perform or arrange another
examination upon approving the previously performed examination. Notwithstanding the provisions
of this subsection, subsection (r), section four of this article applies regarding payment by the county
commission for examinations at hearings. If the examination reveals that the individual is not
mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself,
herself or others, the individual shall be immediately released without the need for a probable cause hearing and absent a finding of professional negligence such examiner shall not be civilly liable for
the rendering of such opinion absent a finding of professional negligence. The examiner shall
immediately provide the mental hygiene commissioner, circuit court or designated magistrate before
whom the matter is pending the results of the examination on the form provided for this purpose by
the supreme court of appeals for entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to be held before a magistrate designated by the chief judge
of the judicial circuit, the mental hygiene commissioner or circuit judge of the county of which the
individual is a resident or where he or she was found. If requested by the individual or his or her
counsel, the hearing may be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and has the right to present evidence, confront
all witnesses and other evidence against him or her and to examine testimony offered, including
testimony by representatives of the community mental health center serving the area. Expert
testimony at the hearing may be taken telephonically or via videoconferencing. The individual has
the right to remain silent and to be proceeded against in accordance with the rules of evidence of the
supreme court of appeals, except as provided for in section twelve, article one of this chapter. At
the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge
shall find and enter an order stating whether or not there is probable cause to believe that the
individual, as a result of mental illness, is likely to cause serious harm to himself or herself or to
others or is addicted.
(g) The magistrate, mental hygiene commissioner or circuit court judge at a probable cause
hearing or at a final commitment hearing held pursuant to the provisions of section four of this article
finds that the individual, as a result of mental illness, is likely to cause serious harm to himself,
herself or others or is addicted and because of mental illness or addiction requires treatment, the
magistrate, mental hygiene commissioner or circuit court judge may consider evidence on the
question of whether the individual's circumstances make him or her amenable to outpatient treatment
in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. The
agreement is to be in writing and approved by the individual, his or her counsel and the magistrate,
mental hygiene commissioner or circuit judge. If the magistrate, mental hygiene commissioner or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential
or nonhospital setting, the individual may be released to outpatient treatment upon the terms and
conditions of the voluntary treatment agreement. The failure of an individual released to outpatient
treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary
treatment agreement constitutes evidence that outpatient treatment is insufficient and, after a hearing
before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or not the
individual failed or refused to comply with the terms and conditions of the voluntary treatment
agreement and whether the individual as a result of mental illness remains likely to cause serious
harm to himself, herself or others or remains addicted, the entry of an order requiring admission
under involuntary hospitalization pursuant to the provisions of section three of this article may be
entered. In the event a person released pursuant to a voluntary treatment agreement is unable to pay
for the outpatient treatment and has no applicable insurance coverage, including, but not limited to,
private insurance or medicaid, the secretary of health and human resources may transfer funds for
the purpose of reimbursing community providers for services provided on an outpatient basis for
individuals for whom payment for treatment is the responsibility of the department: Provided, That
the department may not authorize payment of outpatient services for an individual subject to a
voluntary treatment agreement in an amount in excess of the cost of involuntary hospitalization of
the individual. The secretary shall establish and maintain fee schedules for outpatient treatment
provided in lieu of involuntary hospitalization. Nothing in the provisions of this article regarding
release pursuant to a voluntary treatment agreement or convalescent status may be construed as
creating a right to receive outpatient mental health services or treatment or as obligating any person
or agency to provide outpatient services or treatment. Time limitations set forth in this article
relating to periods of involuntary commitment to a mental health facility for hospitalization do not
apply to release pursuant to the terms of a voluntary treatment agreement: Provided, however, That
release pursuant to a voluntary treatment agreement may not be for a period of more than six months
if the individual has not been found to be involuntarily committed during the previous two years and
for a period of no more than two years if the individual has been involuntarily committed during the
preceding two years. If in any proceeding held pursuant to this article the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the
circuit judge, magistrate or mental hygiene commissioner may not enter an order directing treatment
pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to
a voluntary treatment agreement is ordered, the individual subject to the order may, upon request
during the period the order is in effect, have a hearing before a mental hygiene commissioner or
circuit judge where the individual may seek to have the order canceled or modified. Nothing in this
section may affect the appellate and habeas corpus rights of any individual subject to any
commitment order.
(h) If the certifying physician or psychologist determines that a person requires involuntary
hospitalization for an addiction to a substance which, due to the degree of addiction, creates a
reasonable likelihood that withdrawal or detoxification from the substance of addiction will cause
significant medical complications, the person certifying the individual shall recommend that the
individual be closely monitored for possible medical complications. If the magistrate, mental
hygiene commissioner or circuit court judge presiding orders involuntary hospitalization, he or she
shall include a recommendation that the individual be closely monitored in the order of commitment.
(i) The supreme court of appeals and the secretary of the department of health and human
resources shall collect data and report to the Legislature at its regular annual sessions in two
thousand three and two thousand four of the effects of the changes made in the mental hygiene
judicial process along with any recommendations which they may deem proper for further revision
or implementation in order to improve the administration and functioning of the mental hygiene
system utilized in this state, to serve the ends of due process and justice in accordance with the rights
and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system
and to promote the development of good mental health. The supreme court of appeals and the
secretary of the department of health and human resources shall specifically develop and propose
a statewide system for evaluation and adjudication of mental hygiene petitions which shall include
payment schedules and recommendations regarding funding sources. Additionally, the secretary of
the department of health and human resources shall also immediately seek reciprocal agreements
with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in
need of mental hygiene services."
And,
By amending the title of the bill to read as follows:
H. B. 2186 - "A Bill to amend and reenact §27-5-2 of the Code of West Virginia, 1931, as
amended, relating to institution of proceedings for involuntary custody for examination."
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 that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 2528, Relating to alternative programs for the education of teachers.
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 section and inserting in lieu thereof
the following:
"ARTICLE 3. TRAINING, CERTIFICATION, LiCENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-1a. Alternative programs for the education of teachers.
(a) By the first day of July, one thousand nine hundred ninety-one fifteenth day of August,
two thousand five, the State Board, of Education, after consultation with the Secretary of Education
and the Arts, shall adopt promulgate rules in accordance with the provisions of article three-b,
chapter twenty-nine-a of this code for the approval and operation of teacher education programs
which are an alternative to the regular college or university programs for the education of teachers.
To participate in an approved alternative teacher education program, the candidate must hold an alternative program teacher certificate issued by the Superintendent and endorsed for the
instructional field in which the candidate seeks certification. An alternative program teacher
certificate is a temporary certificate issued for one year to a candidate who does not meet the
standard educational requirements for certification. The certificate may be renewed no more than
two times. No individual may hold an alternative program teacher certificate for a period exceeding
three years. The alternative program teacher certificate shall be considered a professional teaching
certificate for the purpose of the issuance of a continuing contract. To be eligible for such a an
alternative program teacher certificate, an applicant shall:
(1) Possess at least a bachelor's degree from an a regionally accredited institution of higher
education in a discipline taught in the public schools except that the rules established by the board
may exempt candidates in selected vocational and technical areas who have at least ten years
experience in the subject field from this requirement;
(2) Pass an appropriate state board approved basic skills and subject matter test or complete
three years of successful experience within the last seven years in the area for which licensure is
being sought;
(3) Be a citizen of the United States, be of good moral character and physically, mentally and
emotionally qualified to perform the duties of a teacher, and have attained the age of eighteen years
on or before the first day of October of the year in which the alternative program teacher certificate
is issued; and
(4) Have been offered employment in a school included in an alternative teacher education
plan approved by the board to offer an alternative teacher education program. by a county board in
an area of critical need and shortage; and
(5) Qualify following a criminal history check pursuant to section ten of this article.
Persons who pass the appropriate test as set forth in subdivision (2) above satisfy the
requirements set forth in subdivisions (1) through (5) of this subsection shall be granted a formal
document which will enable them to seek employment as an alternative program teacher in a public
school approved to offer an alternative teacher education program work in a public school in West
Virginia.
(b) The rules adopted by the board shall include provisions for the approval of alternative
teacher education programs which may be offered by schools, school districts, consortia of schools
or regional educational service agency and for the setting of tuition charges to offset the program
costs. An approved alternative teacher education program shall be in effect for a school, school
district, consortium of schools or regional educational service agency before an alternative program
teacher may be employed in that school, school district, consortium of schools or regional
educational service agency. Approximately two hundred hours of formal instruction shall be
provided in all of the three following phases combined. An approved alternative program shall
provide essential knowledge and skills to alternative program teachers through the following phases
of training:
(1) A full-time seminar/practicum of no less than twenty and no more than thirty days
duration which is accomplished before the alternative program teacher has full responsibility for a
classroom. The seminar/practicum shall provide formal instruction in the essential areas for
professional study which shall emphasize the topics of student assessment, development and
learning, curriculum, classroom management, and the use of educational computers and other
technology and shall introduce basic teaching skills through supervised teaching experiences with
students. The seminar and practicum components shall be integrated and shall include an orientation
to the policies, organization and curriculum of the employing district;
(2) A period of intensive on-the-job supervision beginning the first day on which the
alternative program teacher assumes full responsibility for a classroom and continuing for a period
of at least ten weeks. During this time, the alternative program teacher shall be visited and critiqued
no less than one time per week by members of a professional support team and shall be observed and
formally evaluated at the end of five weeks and at the end of ten weeks by the appropriately certified
members of the team. During the same period, formal instruction shall be continued in the essential
areas for professional study which shall emphasize the topics of teaching skills, student assessment,
development and learning, curriculum, classroom management, and the use of educational computers
and other technology. At the end of the ten-week period, the alternative program teacher shall
receive a formal written progress report from the chairperson of the support team; and
(3) An additional period of continued supervision and evaluation of no less than twenty
weeks duration. During this period, the alternative program teacher shall be visited and critiqued
at least twice per month and shall be observed formally and evaluated at least twice. No more than
two months shall pass without a formal evaluation. Formal instruction shall continue in the essential
areas for professional study. Opportunities shall be provided for the alternative program teacher to
observe the teaching of experienced colleagues.
(1) Instruction. -- The alternative preparation program shall provide a minimum of eighteen
semester hours of instruction in the areas of student assessment; development and learning;
curriculum; classroom management; the use of educational computers and other technology; and
special education and diversity. All programs shall contain a minimum of three semester hours of
instruction in special education and diversity out of the minimum eighteen required semester hours.
(2) Phase I. -- Phase I shall consist of a period of intensive on-the-job supervision by an
assigned mentor and the school administrator for a period of not less than two weeks and no more
than four weeks. The assigned mentor shall meet the requirements for mentor set forth in section
two-b of this article and be paid the stipend pursuant to that section. During this time, the teacher
shall be observed daily. This phase shall include an orientation to the policies, organization and
curriculum of the employing district. The alternative program teacher shall begin to receive formal
instruction in those areas listed in subdivision (1) of this subsection.
(3) Phase II. -- Phase II shall consist of a period of intensive on-the-job supervision
beginning the first day following the completion of Phase I and continuing for a period of at least
ten weeks. During Phase II, the alternative program teacher shall be visited and critiqued no less
than one time per week by members of a professional support team, defined in subsection (c) of this
section, and shall be observed and formally evaluated at the end of five weeks and at the end of ten
weeks by the appropriately certified members of the team. At the end of the ten-week period, the
alternative program teacher shall receive a formal written progress report from the chairperson of
the support team. The alternative program teacher shall continue to receive formal instruction in
those areas listed above under subdivision (1) of this subsection.
(4) Phase III. -- Phase III shall consist of an additional period of continued supervision and
evaluation of no less than twenty weeks duration. The professional support team will determine the
requirements of this phase with at least one formal evaluation being conducted at the completion of
the phase. The alternative program teacher shall continue to receive formal instruction in those areas
listed above under subdivision (1) of this subsection, and receive opportunities to observe the
teaching of experienced colleagues.
(c) Training and supervision of alternative program teachers shall be provided by a
professional support team comprised of a school principal, an experienced classroom teacher who
satisfies the requirements for mentor for the Beginning Educator Internship as specified in section
two-b of this article, a college or university education faculty member and a curriculum supervisor.
Districts or schools which do not employ curriculum supervisors or have been unable to establish
a relationship with a college or university shall provide for comparable expertise on the team. The
school principal shall serve as chairperson of the team. In addition to other duties assigned to it
under this section and section one-b of this article, the professional support team shall submit a
written evaluation of the alternative program teacher to the county superintendent. The written
evaluation shall be in a form specified by the county superintendent and submitted on a date
specified by the county superintendent that is prior to the first Monday of May. The evaluation shall
report the progress of the alternative program teacher toward meeting the academic and performance
requirements of the program.
(d) The training efforts of the districts shall be coordinated by the center for professional
development and the center shall provide an orientation and training program for professional
support team members shall be coordinated and provided by the Center for Professional
Development in coordination with the school district, consortium of schools, regional educational
service agency, and institution of higher education, or any combination of these agencies as set forth
in the plan approved by the state board pursuant to subsection (e) of this section.
(e) A school, school district, consortium of schools or regional educational service agency
seeking to employ an alternative program teacher must submit a plan to the State Board of Education
and receive approval. in accordance with the same procedures used for approval of collegiate preparation programs. Each plan shall describe how the proposed training program will accomplish
the key elements of an alternative program for the education of teachers as set forth in this section.
Each school, school district, consortium of schools or regional educational service agency shall show
evidence in its plan of having sought joint sponsorship of their training program with institutions of
higher education.
(f) The state board shall promulgate a rule in accordance with article three-b, chapter twenty-
nine-a of this code for the approval and operation of alternative education programs to prepare highly
qualified special education teachers that are separate from the programs established under the other
provisions of this section and are applicable only to teachers who have at least a Bachelor's degree
in a program for the preparation of teachers from a regionally accredited institution of higher
education. These programs are subject to the other provisions of this section only to the extent
specifically provided for in the rule. These programs may be an alternative to the regular college and
university programs for the education of special education teachers and also may address the content
area preparation of certified special education teachers. The programs shall incorporate professional
development to the maximum extent possible to help teachers who are currently certified in special
education to obtain the required content area preparation. Participation in an alternative education
program pursuant to this subsection shall not affect any rights
,
privileges or benefits to which the
participant would otherwise be entitled as a regular employee, nor does it alter any rights
,
privileges
or benefits of participants on continuing contract status. The state board shall report to the legislative
oversight commission on education accountability on the programs authorized under this subsection
during the July, two thousand five, interim meetings or as soon thereafter as practical prior to
implementation of the programs.
(g) The State Board shall promulgate a rule in accordance with article three-b, chapter
twenty-nine-a of this code for the approval and operation of alternative education programs to
prepare highly qualified special education teachers that are separate from the programs established
under the other provisions of this section and are applicable only to persons who hold a bachelor's
degree from a regionally accredited institution of higher education. These programs are subject to
the other provisions of this section only to the extent specifically provided for in this rule. These programs may be an alternative to the regular college and university programs for the education of
special education teachers and also may address the content area preparation of such persons. The
State Board shall report to the Legislative Oversight Commission on Education Accountability on
the programs authorized under this subsection during the July, two thousand five, interim meetings
or as soon thereafter as practical prior to implementation of the programs.
(h) For the purposes of this section, "area of critical need and shortage" means an opening
in an established, existing or newly created position which has been posted in accordance with the
provisions of section seven-a, article four of this chapter, and for which no fully qualified applicant
has been employed.
(i) The recommendation to rehire an alternative education program teacher pursuant to
section eight-a, article two of this chapter is subject to the position being posted and no fully
qualified applicant being employed: Provided, that this provision does not apply to teachers who
hold a valid West Virginia professional teaching certificate and who are employed under a program
operated pursuant to subsection (f).
(j) When making decisions affecting the hiring of an alternative program teacher under the
provisions of this section, a county board shall give preference to applicants who hold a valid West
Virginia professional teaching certificate."
And,
By amending the title of the bill to read as follows:
H. B. 2528- "A Bill to amend and reenact §18A-3-1a of the Code of West Virginia, 1931,
as amended, relating to alternative programs for the education of teachers; providing for alternative
program certificate, eligibility, issuance, scope and renewal limitation; changing activities,
components and phases of training for alternative programs; providing for program coordination,
training and approval; authorizing separate programs to prepare highly qualified special education
teachers; requiring position to be posted in certain instances; and establishing hiring preference."
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. 663), 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: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2528) 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 concurrence by the Senate in the amendment of the
House of Delegates to the amendment of the Senate, and the passage, as amended, of
H. B. 2669, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
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. 2853, Relating to the West Virginia Courtesy Patrol Program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section two, line twenty-one, after the word 'program' by changing the period
to a colon and inserting the following proviso: Provided, That matching federal funds are available
to fund the courtesy patrol program and that said matching federal funds shall not exceed five million
dollars annually.
On page five, section two, line twenty-two, after the word 'Highways' by inserting a comma
and the words 'using available federal funds,'.
On page five, section two, line twenty-eight, after the word 'provide' by inserting a comma
and the words 'with federal funds,'.
And,
On page, five, section two, line thirty-two, after the word 'patrol' by inserting the words
"utilizing moneys made available by the federal government".
On motion of Delegates Staton, Michael and Boggs, the House of Delegates concurred in
the Senate amendment with amendment on page five, section two, line twenty-one, following the
word "program", by changing the colon to a period, striking out the following: "Provided, That
matching federal funds are available to fund the courtesy patrol program and that said matching
federal funds shall not exceed five million dollars annually" and inserting in lieu thereof the
following: "To the extend that they are available, the Division of Highways shall provide funding
for the items specified in this section with federal funds".
On page five, section two, line twenty-two, following the word "Highways", by striking out
the comma, the words "using available federal funds" and the comma.
On page five, section two, line twenty-eight, following the word "provide" by striking out
the comma, the words "with federal funds" and the comma.
And,
On page five, section two, line thirty-two, following the word "patrol" by striking out the
words "utilizing moneys made available by the federal government".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 664), 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: Fragale.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2853) passed.
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, without amendment, a bill
of the House of Delegates as follows:
H. B. 2939, Relating to the Federal Cash Management Act.
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. 2980, Providing for the certification of special inspectors and to permit the acceptance
of inspections provided by special inspectors in lieu of inspections by the Division of Labor.
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. 3306, Allowing fees charged for requests for information from the central abuse
registry to be used for criminal record keeping.
Special Calendar
Third Reading
S. B. 666, Relating to exemptions for certain insurance companies from business franchise
tax and corporation net income tax; on third reading, coming up in regular order, was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 665),
and there were--yeas 85, nays 14, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Amores, Barker, Beane, Butcher, Caputo, Doyle, Eldridge, Hrutkay, Longstreth,
Mahan, Manchin, Martin, Spencer and Staton.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 666) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
On motion of Delegate Staton, the House of Delegates reconsidered the vote whereby it had
passed in earlier proceedings Com. Sub. for H. B. 2011, Relieving health care providers of liability
where an injury has resulted from a prescribed drug or medical device.
The question again being on the passage of the bill, the yeas and nays were taken (Roll No.
666), and there were--yeas 84, nays 9, absent and not voting 7, with the nays and absent and not
voting being as follows:
Nays: Barker, Butcher, Eldridge, Hatfield, Hrutkay, Hunt, Miley, Spencer and Walters.
Absent And Not Voting: Ashley, Caputo, Ennis, Fragale, Longstreth, Manchin and
Stephens.
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. 2011) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At 5:58 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:00 p.m.,
and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished
Business.
Special Calendar
Unfinished Business
H. C. R. 66, Requesting the Joint Committee on Government and Finance study the
increasing role sanitarians play in protecting public health; 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.
S. C. R. 74, Requesting Joint Committee on Government and Finance study fiscal affairs of
state water and sewer utilities; 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.
Special Calendar
Third Reading
At the request of Delegate Staton, and by unanimous consent, further consideration of the
following bills were then postponed:
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
S. B. 289, Allowing fill material in waters of state; definition,
S. B. 406, Establishing Uniform Environmental Covenants Act,
And,
S. B. 159, Creating Consolidated Local Government Act.
Second Reading
S. B. 752, Making supplementary appropriation of federal funds to Department of
Environmental Protection, Division of Environmental Protection; on second reading, coming up in
regular order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 667), and there were--yeas 91, nays
4, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Eldridge, Hrutkay, Lane and Louisos.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
The bill was then read a third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 668), and there were--yeas
94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 752) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 669), and there were--yeas 94, nays
1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Beach, Frich, Houston, Marshall and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 752) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
On motion of Delegate Staton, the Senate was requested to return Com. Sub. for S. B. 30,
Relating to insurance law reforms and modifications generally
.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Subsequently,
A message from the Senate, by
The Clerk of the Senate, was received, announcing that the Senate had acceded to the request
of the House for the return of
Com. Sub. for S. B. 30, Relating to insurance law reforms and modifications generally.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
On the further motion of the same Gentleman, the House then reconsidered the amendment
to the title of the bill and the passage of the bill, respectively.
Unanimous consent having been obtained, an amendment was offered to the bill on third
reading, amending the enacting section to read as follows:
"
That §33-2-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section, designated §33-2-21; that §33-6-8 of said code be amended and reenacted; that said code be amended by adding thereto a new section,
designated §33-6-15a; that §33-16-2 of said code be amended and reenacted; that §33-16B-1 and
§33-16B-3 of said code be amended and reenacted; that §33-17-8 and §33-17-9 of said code be
amended and reenacted; that said code be amended by adding thereto three new sections, designated
§33-17A-4a, §33-17A-4b and §33-17A-4c; and that §33-20-4 of said code be amended and
reenacted."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 670),
and there were--yeas 75, nays 24, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Barker, Brown, Butcher, Caputo, Eldridge, Fragale, Hatfield, Hrutkay, Hunt, Iaquinta,
Leggett, Longstreth, Manchin, Marshall, Martin, Miley, Moore, Poling, Schoen, Stevens,Deb,
Thompson, Rick, Walters, Webster and Wells.
Absent And Not Voting: Beach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 30) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 30 - "A Bill to amend and reenact §33-2-20 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-2-
21; to amend and reenact §33-6-8 of said code; to amend said code by adding thereto a new section,
designated §33-6-15a; to amend and reenact §33-16-2 of said code; to amend and reenact §33-16B-1
and §33-16B-3 of said code; to amend and reenact §33-17-8 and §33-17-9 of said code; to amend
said code by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A-
4c; and to amend and reenact §33-20-4 of said code, all relating to insurance law reforms and
modifications generally; allowing the Commissioner to permit automobile insurers to withdraw from
doing business in this state; requiring insurer to submit a plan; permitting promulgation of rules;
redesignating a section of the insurance code enacted as part of the bill assigning workers'
compensation duties to the Insurance Commissioner; clarifying that certain rules remain in effect; exempting commercial insurance lines from the requirement of prior approval of rates and forms;
establishing requirements for prior approval; providing for suspension of review period when
additional information is requested; providing definitions; clarifying that certain health insurance
forms marketed to associations must be filed with the Commissioner; providing that commercial and
certain health insurance forms marketed to associations are effective upon first use after filing;
providing certain requirements for association policies; providing for a notation of savings on
policies; clarifying that prior rate approval applies to health insurance certificates and endorsements;
providing for filing of fire and marine insurance rider or endorsement review; adding a ground for
nonrenewal of property insurance policies; providing an alternative method for nonrenewal of
property insurance; providing a manner of electing an alternative method; requiring report to the
Legislature; and making certain technical changes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
S. B. 558, Relating to management and investment of public funds; on third reading, coming
up in regular order, was, on motion of Delegate Staton, postponed until later in today's session.
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. 2334, Relating to limiting child out-of-state placements..
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 section and inserting in lieu thereof
the following:
"ARTICLE 7. GENERAL PROVISIONS.
§49-7-34. Commission to study residential placement of children.
(a) The Legislature finds that the state's current system of serving children and families in
need of or at risk of needing social, emotional and behavioral health services is fragmented. The
existing categorical structure of government programs and their funding streams discourages
collaboration, resulting in duplication of efforts and a waste of limited resources. Children are
usually involved in multiple child-serving systems, including child welfare, juvenile justice and
special education. More than ten percent of children presently in care are presently in out-of-state
placements. Earlier efforts at reform have focused on quick fixes for individual components of the
system at the expense of the whole. It is the purpose of this section therefore to establish a
mechanism to achieve systemic reform by which all of the state's child-serving agencies involved
in the residential placement of at- risk youth jointly and continually study and improve upon this
system and make recommendations to their respective agencies and to the Legislature regarding
funding and statutory, regulatory and policy changes. It is further the Legislature's intent to build
upon these recommendations to establish an integrated system of care for at-risk youth and families
that makes prudent and cost-effective use of limited state resources by drawing upon the experience
of successful models and best practices in this and other jurisdictions, which focuses on delivering
services in the least restrictive setting appropriate to the needs of the child, and which produces
better outcomes for children, families and the state.
(b) There is hereby created within the Department of Health and Human Resources a
Commission to Study the Residential Placement of Children. The Commission shall consist of the
Secretary of the Department of Heath and Human Resources, the Commissioner of the Bureau for
Children and Families, the Commissioner for the Bureau for Behavioral Health and Health Facilities,
the Commissioner for the Bureau for Medical Services, the State Superintendent of Schools, a
representative of local educational agencies, the Director of the Office of Institutional Educational
Programs, the Director of the Office of Special Education Programs and Assurance, the Director of
the Division of Juvenile Services and the Executive Director of the Prosecuting Attorney's Institute.
At the discretion of the West Virginia Supreme Court of Appeals, circuit and family court judges and
other court personnel, including the administrator of the Supreme Court of Appeals and the director
of the Juvenile Probation Services Division, may serve on the Commission. These statutory members may further designate additional persons in their respective offices who may attend the
meetings of the Commission if they are the administrative head of the office or division whose
functions necessitate their inclusion in this process. In its deliberations, the Commission shall also
consult and solicit input from families and service providers.
(c) The Secretary of the Department of Health and Human Resources shall serve as chair of
the Commission, which shall meet on a monthly basis at the call of the chairman.
(d) At a minimum, the Commission shall study:
(1) The current practices of placing children out-of-home and into in residential placements,
with special emphasis on out-of-state placements;
(2) The adequacy, capacity, availability and utilization of existing in-state facilities to serve
the needs of children requiring residential placements;
(3) Strategies and methods to reduce the number of children who must be placed in out-of-
state facilities and to return children from existing out-of-state placements, initially targeting older
youth who have been adjudicated delinquent;
(4) Staffing, facilitation and oversight of multidisciplinary treatment planning teams;
(5) The availability of and investment in community-based, less restrictive and less costly
alternatives to residential placements;
(6) Ways in which up-to-date information about in-state placement availability may be made
readily accessible to state agency and court personnel, including an interactive secure web site;
(7) Strategies and methods to promote and sustain cooperation and collaboration between the
courts, state and local agencies, families and service providers, including the use of inter-agency
memoranda of understanding, pooled funding arrangements and sharing of information and staff
resources;
(8) The advisability of including 'no-refusal' clauses in contracts with in-state providers for
placement of children whose treatment needs match the level of licensure held by the provider;
(9) Identification of in-state service gaps and the feasibility of developing services to fill
those gaps, including funding;
(10) Identification of fiscal, statutory and regulatory barriers to developing needed services
in-state in a timely and responsive way;
(11) Ways to promote and protect the rights and participation of parents, foster parents and
children involved in out-of-home care; and
(12) Ways to certify out-of-state providers to ensure that children who must be placed out-of-
state receive high quality services consistent with this state's standards of licensure and rules of
operation.
(e) Beginning July 1, 2005, the Chair, or his or her designee, shall report on the work of the
Commission to the legislative Juvenile Task Force during the Legislature's monthly interim
meetings.
(f) On or before December 1, 2005, the Commission shall report to the Joint Committee on
Government and Finance its conclusions and recommendations, including an implementation plan
whereby:
(1) Out-of-state placements shall be reduced by at least ten per cent per year and by at least
fifty percent within three years;
(2) Child-serving agencies shall develop joint operating and funding proposals to serve the
needs of children and families that cross their jurisdictional boundaries in a more seamless way;
(3) Steps shall be taken to obtain all necessary federal plan waivers or amendments in order
for agencies to work collaboratively while maximizing the availability of federal funds;
(4) Agencies shall enter into memoranda of understanding to assume joint responsibilities;
(5) System of care components and cooperative relationships shall be incrementally
established at the local, state and regional levels, with links to existing resources, such as family
resource networks and regional summits, wherever possible; and
(6) Recommendations for changes in fiscal, statutory and regulatory provisions are included
for legislative action."
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. 671), 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: Schoen.
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. 2334) 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. 2444, Mandatory participation in the motor vehicle alcohol test and
lock program for repeat offenders.
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 clause and inserting in lieu thereof
the following:
"That section §17C-5-2 of the code of West Virginia, 1931, as amended, be amended and
reenacted; and that §17C-5A-3a of said code be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by
law in the driving of the vehicle, which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others, and when the
influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death,
is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility
for not less than one nor more than ten years and shall be fined not less than one thousand dollars
nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by
law in the driving of the vehicle, which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by
law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for not less than one day nor more than one year, which jail
term is to include actual confinement of not less than twenty-four hours, and shall be fined not less
than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county
or regional jail for not less than one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred
dollars nor more than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any
derivative thereof, drives a vehicle in this state, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall
be fined not less than one hundred dollars nor more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county
or regional jail for not more than six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be driven in this state by any
other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is
guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional
jail for not more than six months and shall be fined not less than one hundred dollars nor more than
five hundred dollars.
(h) Any person under the age of twenty-one years who drives a vehicle in this state while he
or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight, for a first offense under this
subsection, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than
twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under
this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined
in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred
dollars nor more than five hundred dollars. A person who is charged with a first offense under the
provisions of this subsection may move for a continuance of the proceedings, from time to time, to allow the person to participate in the vehicle alcohol test and lock program as provided for in section
three-a, article five-a of this chapter. Upon successful completion of the program, the court shall
dismiss the charge against the person and expunge the person's record as it relates to the alleged
offense. In the event the person fails to successfully complete the program, the court shall proceed
to an adjudication of the alleged offense. A motion for a continuance under this subsection may not
be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c),
(d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection
arising out of the same transaction or occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other
drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight; and
(2) The person when so driving has on or within the motor vehicle one or more other persons
who are unemancipated minors who have not reached their sixteenth birthday, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not
less than two days nor more than twelve months, which jail term is to include actual confinement
of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than
one thousand dollars.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this
section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than one thousand dollars nor
more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this
section, for the third or any subsequent offense under this section, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more
than three years, and the court may, in its discretion, impose a fine of not less than three thousand
dollars nor more than five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and
subsequent offenses, the following types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this
section or under a prior enactment of this section for an offense which occurred within the ten-year
period immediately preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state or any other state or a statute
of the United States or of any other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred within
the ten-year period immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or information for a second or
subsequent offense under this section if the person has been previously arrested for or charged with
a violation of this section which is alleged to have occurred within the applicable time period for
prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for
the alleged previous offense. In that case, the warrant or indictment or information must set forth
the date, location and particulars of the previous offense or offenses. No person may be convicted
of a second or subsequent offense under this section unless the conviction for the previous offense
has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of
this section, or any person permitted to drive as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a
defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term 'controlled substance' has the meaning ascribed to
it in chapter sixty-a of this code.
(p) The sentences provided herein upon conviction for a violation of this article are
mandatory and may not be subject to suspension or probation: Provided, That the court may apply
the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed
to a term of one year or less for a first offense under this section. An order for home detention by
the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section for a first or subsequent offense. An
order for supervision or participation in a community corrections program created pursuant to article
eleven-c, chapter sixty-two of this code may be used as an alternative sentence to any period of
incarceration required by this section. Provided, however, That where home incarceration is ordered
for a second offense under this section, electronic monitoring shall be required for no fewer than five
days and the offender may not leave home for those five days notwithstanding the provisions of
section five, article eleven-b, chapter sixty-two of this code, or as an alternative to any sentence
authorized by this section, the offender may be required to perform thirty days of supervised
community service in lieu of any other sentence authorized by the provisions of this section:
Provided further, That where home incarceration is ordered for a third or subsequent violation of this
section, electronic monitoring shall be included for no fewer than ten days and the offender may not
leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this
code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-3a. Establishment of and participation in the motor vehicle alcohol test and lock
program.
(a) The division of motor vehicles shall control and regulate a motor vehicle alcohol test and
lock program for persons whose licenses have been revoked pursuant to this article or the provisions
of article five of this chapter, or have been convicted under section two, article five of this chapter.
Such The program shall include the establishment of a users fee for persons participating in the
program which shall be paid in advance and deposited into the driver's rehabilitation fund. Except
where specified otherwise, the use of the term 'program' in this section refers to the motor vehicle
alcohol test and lock program. The commissioner of the division of motor vehicles shall propose
legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this
code for the purpose of implementing the provisions of this section. Such The rules shall also
prescribe those requirements which, in addition to the requirements specified by this section for
eligibility to participate in the program, the commissioner determines must be met to obtain the
commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and
lock system. For purposes of this section, a 'motor vehicle alcohol test and lock system' means a
mechanical or computerized system which, in the opinion of the commissioner, prevents the
operation of a motor vehicle when, through the system's assessment of the blood alcohol content of
the person operating or attempting to operate the vehicle, such the person is determined to be under
the influence of alcohol.
(b) (1) Any person whose license has been is revoked for the first time pursuant to this article
or the provisions of article five of this chapter is eligible to participate in the program when such the
person's minimum revocation period as specified by subsection (c) of this section has expired and
such the person is enrolled in or has successfully completed the safety and treatment program or
presents proof to the commissioner within sixty days of receiving approval to participate by the
commissioner that he or she is enrolled in a safety and treatment program. Provided, That no person
whose license has been revoked pursuant to the provisions of section one-a of this article for
conviction of an offense defined in subsections a) or (b), section two, article five of this chapter, or
pursuant to the provisions of subsections (f) or (g), section two of this article, shall be eligible for
participation in the program: Provided, however, That any person whose license is revoked pursuant
to this article or pursuant to article five of this chapter for an act which occurred either while participating in or after successfully completing the program shall not again be eligible to participate
in such program
(2) Any person whose license has been suspended pursuant to the provisions of subsection
(l), section two of this article for driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths of one percent or more, by
weight, but less than ten eight hundredths of one percent, by weight, is eligible to participate in the
program after thirty days have elapsed from the date of the initial suspension, during which time the
suspension was actually in effect: Provided, That in the case of a person under the age of eighteen,
the person shall be is eligible to participate in the program after thirty days have elapsed from the
date of the initial suspension, during which time the suspension was actually in effect or after the
person's eighteenth birthday, whichever is later. Before the commissioner approves a person to
operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must
agree to thereafter comply with the following conditions:
(A) If not already enrolled, the person will enroll in and complete the educational program
provided for in subsection (c), section three of this article at the earliest time that placement in the
educational program is available, unless good cause is demonstrated to the commissioner as to why
placement should be postponed;
(B) The person will pay all costs of the educational program, any administrative costs and
all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, no person eligible to
participate in the program under this subsection shall may operate a motor vehicle unless approved
to do so by the commissioner.
(c) For purposes of this section, 'minimum revocation period' means the portion which has
actually expired of the period of revocation imposed by the commissioner pursuant to this article or
the provisions of article five of this chapter upon a person eligible for participation in the program
A person who participates in the program under subdivision (1), subsection (b) of this section is
subject to a minimum revocation period and minimum period for the use of the ignition interlock
device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant
to the provisions of section one-a of this article for conviction of an offense defined in subsection
(d) or (f), section two, article five of this chapter or pursuant to subsection (i), section two of this
article, the minimum period of revocation before such person is eligible for participation in the test
and lock program is thirty days and the minimum period for the use of the ignition interlock device
is five months; or that the period described in subdivision (1), subsection (e) of this section,
whichever period is greater
(2) For a person whose license has been revoked for a first offense pursuant to section seven,
article five of this chapter, refusal to submit to a designated secondary chemical test, the minimum
period of revocation before such person is eligible for participation in the test and lock program is
thirty days and the minimum period for the use of the ignition interlock device is nine months; or
the period set forth in subdivision (1), subsection (e) of this section, whichever period is greater
(3) For a person whose license has been revoked for a second first offense pursuant to the
provisions of section one-a of this article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection (f), section two of this article, the
minimum period of revocation before such the person is eligible for participation in the test and lock
program is nine twelve months and the minimum period for the use of the ignition interlock device
is eighteen months two years; or that period set forth in subdivision (2), subsection (e) of this section,
whichever period is greater
(4) For a person whose license has been revoked for any other period of time a first offense
pursuant to the provisions of section one-a of this article for conviction of an offense defined in
subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of
this article, or pursuant to section seven, article five of this chapter the minimum period of
revocation is eighteen six months and the minimum period for the use of the ignition interlock device
is two years; or that period set forth in subdivision (3), subsection (e) of this section, whichever
period is greater
(5) For a person whose license has been revoked for a first offense pursuant to the provisions
of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum
period of revocation for participation in the program is two months and the minimum period for the
use of the ignition interlock device is one year;
(6) For a person whose license has been revoked for a first offense pursuant to the provisions
of section one-a of this article for conviction of an offense defined in subsection (i), section two,
article five of this chapter or pursuant to subsection (m), section two of this article, the minimum
period of revocation for participation in the program is two months and the minimum period for the
use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in
the program if the person is convicted under section two, article five of this chapter or the person's
license is revoked under section two of this article or section seven, article five of this chapter and
the person was previously either convicted or license was revoked under any provision cited in this
subsection within the past ten years. The minimum revocation period for a person required to
participate in the program under this subsection is one year and the minimum period for the use of
the ignition interlock device is two years, except that the minimum revocation period for a person
required to participate because of a violation of subsection (l), section two of this article or
subsection (h), section two, article five of this chapter is two months and the minimum period of
participation is one year. The division will add one year to the minimum period for the use of the
ignition interlock device for each additional previous conviction or revocation within the past ten
years. Any person required to participate under this subsection must have an ignition interlock
device installed on every vehicle he or she owns or operates.
(5) (e) An applicant for the test and lock program must may not have been convicted of any
violation of section three, article four, chapter seventeen-b of this code for driving while the
applicant's driver's license was suspended or revoked within the two-year six-month period
preceding the date of application for admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals in the test and lock program
an additional device or devices if such is necessary for employment purposes.
(d) (f) Upon permitting an eligible person to participate in the program, the commissioner
shall issue to such the person, and such the person shall be is required to exhibit on demand, a
driver's license which shall reflect that such the person is restricted to the operation of a motor
vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(g) The commissioner may extend the minimum period of revocation and the minimum
period of participation in the program for a person who violates the terms and conditions of
participation in the program as found in this section, or legislative rule, or any agreement or contract
between the participant and the division or program service provider.
(e) Any person who has completed the safety and treatment program and who has not
violated the terms required by the commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the restoration of such person's driver's license
upon the expiration of:
(1) One hundred eighty days of the full revocation period imposed by the commissioner for
a person described in subdivision (1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for a person described in
subdivision (3), subsection (c) of this section;
(3) One year from the date a person described in subdivision (4), subsection (c) of this section
is permitted to operate a motor vehicle by the commissioner.
(f) (h) A person whose license has been suspended pursuant to the provisions of subsection
(l), section two of this article who has completed the educational program, and who has not violated
the terms required by the commissioner of such the person's participation in the motor vehicle
alcohol test and lock program, shall be is entitled to the reinstatement of his or her driver's license
six months from the date the person is permitted to operate a motor vehicle by the commissioner.
When a license has been reinstated pursuant to this subsection, the records ordering the suspension,
records of any administrative hearing, records of any blood alcohol test results and all other records
pertaining to the suspension shall be expunged by operation of law: Provided, That a person shall
be is entitled to expungement under the provisions of this subsection only once. The expungement
shall be accomplished by physically marking the records to show that such the records have been expunged and by securely sealing and filing the records. Expungement shall have has the legal effect
as if the suspension never occurred. The records shall may not be disclosed or made available for
inspection and in response to a request for record information, the commissioner shall reply that no
information is available. Information from the file may be used by the commissioner for research
and statistical purposes so long as the use of such the information does not divulge the identity of
the person.
(g) (i) In addition to any other penalty imposed by this code, any person who operates a motor
vehicle not equipped with an approved motor vehicle alcohol test and lock system during such
person's participation in the motor vehicle alcohol test and lock program is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than
one month nor more than six months and fined not less than one hundred dollars nor more than five
hundred dollars. Any person who assists another person required by the terms of such other person's
participation in the motor vehicle alcohol test and lock program to use a motor vehicle alcohol test
and lock system in any effort attempts to bypass the alcohol test and lock system is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more
than six months and fined not less than one hundred dollars nor more than one thousand dollars.
Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and
participating in the test and lock program may operate a motor vehicle solely at his or her job site,
if such is a condition of his or her employment. For the purpose of this section, job site does not
include any street or highway open to the use of the public for purposes of vehicular traffic."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2444 - "A Bill to amend and reenact §17C-5-2 of the Code of West
Virginia, 1931, as amended; and to amend reenact §17C-5A-3a, all relating to compliance with
federal funding requirements regarding driving under the influence offenders."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with an amendment, as follows:
On page ten, section two, line two, after the period, by striking out the remainder of the
section and inserting in lieu thereof the following:
"Provided, however, That for any period of home incarceration ordered for a person
convicted of second offense under this section, electronic monitoring shall be required for no fewer
than five days of the total period of home confinement ordered and the offender may not leave home
for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two
of this code: Provided further, That for any period of home incarceration ordered for a person
convicted of a third or subsequent violation of this section, electronic monitoring shall be included
for no fewer than ten days of the total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this
code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2444 - "A Bill to amend and reenact §17C-5-2 of the Code of West
Virginia, 1931, as amended; and to amend reenact §17C-5A-3a, all relating to compliance with
federal funding requirements regarding driving under the influence offenders; limiting work release
to convictions for a first offense; and the creation of mandatory periods of electronically monitored
home confinement."
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 672), and there were--yeas
98, nays 2, absent and not voting none, with the nays being as follows:
Nays: Armstead and Lane.
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. 2444) passed.
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 amendment, a bill of
the House of Delegates as follows:
H. B. 2782, Increasing the number of members a municipality may appoint to a board of park
and recreation commission from not less than three to not more than seven.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, after section three, by adding a new section, designated section seven, to read
as follows:
"§8-21-7. Office; powers.
The governing body shall furnish said board an office in the city building where it may hold
its meetings and keep its records. Provided, That English shall be the official language of the State
of West Virginia and that the governing body, as defined in §8-1-2, may use the English language
in the preparation of all public documents and records. Any board operating under the provisions
of this article shall have complete and exclusive control and management of all of the properties
which shall be operated in connection with the public park and recreation system for the city, and
shall have power to employ such persons as, in its opinion, may be necessary for the establishment,
construction, improvement, extension, development, maintenance or operation of the property under
its control, at such wages or salaries as it shall deem proper, and shall have full control of all
employees."
On page two, by amending the enacting section to read as follows:
"That §8-21-3 and §8-21-7 of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
H. B. 2782 - "A Bill to amend and reenact §8-21-3 and §8-21-7 of the Code of West
Virginia, 1931, as amended, relating to municipal board of park and recreation commissioners
generally; increasing the number of members the governing body may appoint to a board of park and
recreation commissioners to not more than seven; and providing for the appointment of not more than three members from the governing body if the board of park and recreation commissioners
consists of six or seven members; clarifying the preparation of all public documents and records."
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. 673), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2782) 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. 2852, Implementing the recommendations of the West Virginia Pharmaceutical Cost
Council.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3C. WEST VIRGINIA PHARMACEUTICAL AVAILABILITY AND
AFFORDABILITY ACT.
§5A-3C-1. Title.
The provisions of this article shall be known as and referred to as the 'West Virginia
Pharmaceutical Availability and Affordability Act.'
§5A-3C-2. Legislative findings and intent.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs is one of the most critical issues facing the
current health care system in the State of West Virginia;
(2) This crisis has imposed a significant hardship on individuals who have limited budgets,
are uninsured or who have prescription coverage that is unable to control costs successfully due to
cost shifting and disparate pricing policies;
(3) That the average cost per prescription for seniors rose significantly between one thousand
nine hundred ninety-two and two thousand, and is expected to continue increasing significantly
through two thousand ten;
(4) State government agencies could achieve significant savings through the coordinated
purchase of prescription drugs;
(5) That there is an increasing need for citizens of West Virginia to have affordable access
to prescription drugs; and
(6) That the Legislature does not intend the imposition of the programs under this article to
penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply
schedule drug prices.
(b) In an effort to promote healthy communities and to protect the public health and welfare
of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to
provide affordable prescription drugs for all residents of West Virginia.
(c) That in chapter one hundred ninety three, Acts of the Legislature, regular session, two
thousand four, the Legislature established a Pharmaceutical Cost Management Council and directed
said council to recommend measures to decrease the cost of prescription drugs and, in particular, the
establishment of a benchmark using or referencing the Federal Supply Schedule ('FSS') prices or
using or referencing to the price, as adjusted for currency valuations, set by Canada Patented
Medicine Prices Review Board (PMPRB) or any other appropriate reference price that would
maximize savings to the broadest percentage of the population of this state. Further, the Legislature
determined that prior to implementation of a reference pricing schedule and the strategic plan for
implementation, a concurrent resolution approving the benchmark and the strategic plan must be
passed.
(d) That in the third extraordinary session of two thousand four, a concurrent resolution was
adopted on the sixteenth day of November, two thousand four, referred to as Senate Concurrent
Resolution 301, which concurrent resolution established the FSS as the benchmark for the purchase
of brand name pharmaceutical drugs and the strategic plan for the implementation of such program.
(e) That the Legislature intends to transfer the powers established in West Virginia Code
§5A-3C to the Office of the Pharmaceutical Advocate.
§5A-3C-3. Definitions.
In this article:
(1) 'Advertising or marketing' means any manner of communication of information, either
directly or indirectly, that is paid for and usually persuasive in nature about products, services or
ideas related to pharmaceuticals by identified sponsors through various media, persons or other
forms as further defined by legislative rule.
(2) 'Audit' means a systematic examination and collection of sufficient, competent evidential
matter needed for an auditor to attest to the fairness of management's assertions in the financial
statements and to evaluate whether management has sufficiently and effectively carried out its
responsibilities and complied with applicable laws and regulations, conducted by an independent
certified public accountant in accordance with the applicable statement on standards.
(3) 'Average wholesale price' means the amount determined from the latest publication of
the Blue Book, a universally subscribed pharmacist reference guide annually published by the Hearst
Corporation. 'Average wholesale prices' may also be derived electronically from the drug pricing
database synonymous with the latest publication of the Blue Book and furnished in the National
Drug Data File by First Data Bank, a service of the Hearst Corporation.
(4) 'Benchmark' means a point of reference which serves as the basis for beginning
negotiations by the Pharmaceutical Advocate for pricing of brand name pharmaceuticals.
(5) 'Brand name drug' means an innovator drug as defined in this section.
(6) 'Dispensing fee' means the fee charged by a pharmacy to dispense pharmaceuticals.
(7) 'Drug manufacturer' or 'pharmaceutical manufacturer' means any entity which is engaged
in:
(A) The production, preparation, propagation, compounding, conversion or processing of
prescription drug products, either directly or indirectly by extraction from substances of natural
origin, or independently by means of chemical synthesis or by a combination of extraction and
chemical synthesis; or
(B) In the packaging, repackaging, labeling, relabeling or distribution of prescription drug
products. 'Drug manufacturer' or 'pharmaceutical manufacturer' does not include a wholesale
distributor of drugs or a retail pharmacy licensed under state law.
(8) 'Federal supply schedule' means the price available to all federal agencies for the
purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585.
Federal supply schedule prices are intended to equal or better the prices manufacturers charge their
'most-favored' nonfederal customers under comparable terms and conditions.
(9) 'Labeler' means an entity or person that receives prescription drugs from a manufacturer
or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the
Food and Drug Administration pursuant to 21 C. F. R. §207.20 (1999).
(10) 'Multiple-source drug', 'innovator drug' and 'noninnovator drug' mean the following:
(A) The term 'multiple-source drug' means, when two or more drug products are: Rated as
therapeutically equivalent (under the Food and Drug Administration's most recent publication of
'Approved Drug Products with Therapeutic Equivalence Evaluations'), except as provided in
paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as determined
by the Food and Drug Administration, and the term 'innovator drug' is referred to in this article as
'brand'. The term 'innovator drug' means a drug which is produced or distributed under an original
new drug application approved by the Food and Drug Administration, including a drug product
marketed by any cross-licensed producers or distributors operating under the new drug application
and any multiple-source drug that was originally marketed under an original new drug application
approved by the Food and Drug Administration. The term 'noninnovator drug' is referred to in this
article as 'generic.' The term 'noninnovator drug' means a multiple-source drug that is not an
'innovator drug.'
(B) Paragraph (A) of this subdivision does not apply if the Food and Drug Administration
changes by regulation the requirement that, for purposes of the publication described in paragraph
(A) of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must
be pharmaceutically equivalent and bioequivalent.
(11) 'Office of the Pharmaceutical Advocate' or 'Office' means the Office created pursuant
to section four of this article.
(12) 'Person' means any natural person or persons or any corporation, partnership, company,
trust or association of persons.
(13) 'Pharmaceutical Advocate' or 'Advocate' means the position created pursuant to section
five of this article.
(14) 'Pharmacy benefit manager' means an entity that procures prescription drugs at a
negotiated rate under a contract and which may serve as a third party prescription drug benefit
administrator.
(15) 'Pharmaceutical drug detailing' or 'detailing' means the function performed by a sales
representative who is employed by a pharmaceutical manufacturer for the purpose of; promotion of
pharmaceutical drugs or related products; education about pharmaceutical drugs or related products;
or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or
meals.
(16) 'Prescription drug purchasing agreement' means a written agreement to pool all parties'
prescription drug buying power in order to negotiate the best possible prices and which delegates
authority to negotiate on behalf of the parties to the Advocate.
(17) 'Prescription drugs' mean substances recognized as drugs in the official 'United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or National Formulary,'
or any supplement thereto, dispensed pursuant to a prescription issued by an authorized health care
practitioner, for use in the diagnosis, cure, mitigation, treatment or prevention of disease in a human,
as well as prescription drug delivery systems, testing kits and related supplies.
(18) 'Savings' means the difference between the previous price of a prescription drug
including any discounts, rebates or price containments and the current price after the effective date of this article for the Public Employees Insurance Agency, the Children's Health Insurance Program,
the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals,
state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or other programs which are payors
for prescription drugs.
(19) 'Sole source' means a pharmaceutical that provides a unique and powerful advantage
available in the market to a broad group of patients established under federal law.
(20) 'West Virginia Pharmaceutical Advocate Advisory Council' or 'Council' means the
Council created pursuant to section eleven of this article.
§5A-3C-4. Creation of Office of Pharmaceutical Advocate; cooperation among state agencies;
Medicaid and CHIP program.
(a) There is hereby created the Office of Pharmaceutical Advocate to continue the work of
the West Virginia Pharmaceutical Cost Management Council. The purpose of this Office is to obtain
favorable pharmaceutical prices for state agencies and other qualified entities pursuant to this article.
The Office is under the direct supervision of the Pharmaceutical Advocate, who is responsible for
the exercise of the duties and powers assigned to the Office under the provisions of this article.
(b) The Public Employees Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals,
state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or other programs which are payors
for prescription drugs shall cooperate with the Office of the Pharmaceutical Advocate to meet the
requirements of this article. Intergovernmental agreements shall be developed to establish the
responsibilities of each entity in dealing with the provision of pharmaceuticals.
(c) The Medicaid program and the West Virginia Children's Health Insurance program may
be exempt from participation in this program until approval by the Center for Medicare and Medicaid Services has been granted if it is determined to be required by the Pharmaceutical
Advocate created under section five of this article.
§5A-3C-5. West Virginia Pharmaceutical Advocate; appointment; qualifications; oath;
salary.
(a) The Office of the Pharmaceutical Advocate is under the supervision of the Pharmaceutical
Advocate. The Advocate is the executive and administrative head of the office and shall be
appointed by the Governor with advice and consent of the Senate. The Advocate shall be qualified
by training and experience to direct the operations of the Office of the Pharmaceutical Advocate, and
serves at the will and pleasure of the Governor. The duties of the Advocate include, but are not
limited to, the management and administration of the Office of the Pharmaceutical Advocate.
(b) Notwithstanding any provision of this code to the contrary, the Advocate is the sole
source for management and negotiation and purchase of all pharmaceuticals for all state agencies and
other qualified entities including, but not limited to, the Public Employees Insurance Agency, the
Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services,
the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state
colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans'
homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services
or other programs which are payors for prescription drugs.
(c) The Advocate:
(1) Serves on a full-time basis and may not be engaged in any other profession or occupation;
(2) May not hold political office in the government of the state either by election or
appointment while serving as the Advocate;
(3) Shall be a citizen of the United States and become a resident of the state within ninety
days of appointment;
(4) Is entitled to receive an annual salary as provided by the Governor; and
(5) Is ineligible for civil service coverage as provided in section four, article six, chapter
twenty-nine of this code. Any other employee hired by the Advocate is ineligible for civil service
coverage.
(d) Before entering upon the discharge of the duties as Advocate, the Advocate shall take and
subscribe to the oath of office prescribed in section five, article IV of the Constitution of West
Virginia. The executed oath shall be filed in the office of the Secretary of State.
(e) The Advocate shall report directly to the Governor or the Governor's designee.
§5A-3C-6. West Virginia Pharmaceutical Advocate; powers and duties, hiring of staff.
(a) The Advocate serves as the Chairman of the Pharmaceutical Advocate Advisory Council
established pursuant to section twelve of this article.
(b) The Advocate has the power and authority to:
(1) Purchase or enter into contracts or agreements as necessary to achieve the purposes of this
article and pursuant to the provisions of section seven of this article;
(2) File suit;
(3) Evaluate and renegotiate existing contracts for state purchase of prescription drugs for
cost savings;
(4) Negotiate and execute pharmacy benefit management contracts using the federal supply
schedule as a benchmark for the purpose of managing rising costs for this state and all parties which
have executed prescription drug purchasing agreements;
(5) Provide discount prices or rebate programs as prudent for persons without adequate
prescription drug insurance;
(6) Work to achieve disclosure of the amount spent by prescription drug manufacturers with
regard to expenditures for advertising, marketing, and promotion, as well as for provider incentives
and research and development efforts;
(7) Facilitate programs aimed at educating health care practitioners authorized to prescribe
prescription drugs about the relative costs and benefits of various prescription drugs, with an
emphasis on generic or therapeutic substitution for brand name drugs when available and
appropriate; prescribing established, less-costly drugs instead of newer and more expensive drugs,
when appropriate; and prescribing lower dosages of prescription drugs when appropriate and
implement when the pharmaceutical advocate determines that it will have value to the citizens of the
state;
(8) Facilitate the development of disease management programs in collaboration with
physicians, mid-level practitioners, pharmacists and other health care providers aimed at enhancing
the effectiveness of treating certain diseases identified as prevalent among this state's population
with prescription drugs;
(9) Facilitate the establishment of voluntary private buying clubs, cooperatives or purchasing
alliances comprised of small businesses or individuals for the purpose of purchasing prescription
drugs at optimal prices;
(10) Develop and implement a program to maximize savings to the state and its citizens from
Section 340B of the Federal Public Health Service Act, 42 U.S.C. 256b, as applicable;
(11) Develop, if it is determined to be necessary, and implement a program under which the
State may become a licensed pharmaceutical wholesaler for the purposes of making pharmaceuticals
obtained by a buying consortium available to local pharmacies;
(12) Investigate the feasibility of purchasing prescription drugs from sources in Canada,
which may include the feasibility of the state or an instrumentality thereof serving as a wholesale
distributor of prescription drugs in the state. Upon a determination by the Advocate that the same
is feasible and in the best interests of the citizens of the State, the Advocate is authorized to pursue
waivers from the federal government, including, but not limited to, from the United States Food and
Drug Administration, as necessary for the State to accomplish prescription drug purchasing from
sources in Canada;
(13) Develop and implement other programs, projects and initiatives to achieve the purposes
of this article, including initiating, evaluating, and promoting other strategies that result in reduced
costs of prescription drugs for the citizens of West Virginia, including, but not limited to:
(A) A common preferred drug list for the Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the
Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges
and universities, public hospitals, state or local institutions such as nursing homes, veterans' homes,
the Division of Rehabilitation, public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs: Provided, That persons who are presently prescribed and are using specific anti-psychotic drugs used in the treatment of nervous or mental
disorders shall not be required to change or modify their prescription as a result of the adoption of
a common preferred drug list: Provided, however, That prior to the Advocate adopting a preferred
drug list involving the Public Employees Insurance Agency, the Advocate shall obtain from the West
Virginia University School of Pharmacy, or other appropriate entity or agency a confirmation that
the efficacy and clinical appropriateness of each prescription drug contained on the preferred drug
list is satisfactory to meet the prescription drug therapy needs of the members of the Public
Employees Insurance Agency.
(B) A streamlined prior authorization process for state insurers; and
(C) Patient assistance programs in their current forms, as well as new programs, such as
central fill pharmacy/bulk replenishment models.
(14) Undertake upon the effective date of this article and every two years thereafter a survey
of West Virginia based pharmacies to determine their cost of dispensing a prescription. Surveys shall
be conducted with the advice and participation of the West Virginia University School of Pharmacy
and the University of Charleston School of Pharmacy. The Advocate may request cooperation of
the West Virginia Pharmacists Association and the West Virginia Community Pharmacy Council
in carrying out the requirements of this subsection. The Advocate shall utilize data from the surveys
in negotiating and executing those provisions of pharmacy benefit management contracts and
discount prescription drug programs that set dispensing fees to be paid pharmacies.
(c) The Advocate shall consult with the Council and employ such professional, clerical,
technical and administrative personnel as may be necessary to carry out the provisions of this article.
(d) The Advocate, with input and advice from the Council, shall prepare and submit annual
proposed appropriations for the Office of the Pharmaceutical Advocate and the Council to the
Governor.
(e) Submit an annual report to the Governor and the Legislature on the condition, operation
and functioning of the Office of the Pharmaceutical Advocate.
(f) Supervise the fiscal management and responsibilities of the Office of the Pharmaceutical
Advocate.
(g) Keep an accurate and complete record of all Office of the Pharmaceutical Advocate
proceedings, record and file all bonds and contracts and assume responsibility for the custody and
preservation of all papers and records of the Office;
(h) Present to the Legislative Oversight Commission on Health and Human Resource
Accountability, the impact of the Medicare Modernization Act on the State and its citizens;
(i) Explore the value of implementing a discount card program for the citizens of the State
and implement, at the discretion of the Pharmaceutical Advocate with the advise of the Council;
(j) Present twice annually, in July and December of each year, to the Joint Committee on
Government and Finance the work of the Advocate and the benefit to the State beginning in July of
2005.
§5A-3C-7. Authorization to execute prescription drug purchasing agreements.
(a) The Advocate may execute, subject to the provisions of subsection (b) of this section and
as permitted by applicable federal law, prescription drug purchasing agreements with:
(1) All departments, agencies, authorities, institutions, programs, quasi-public corporations
and political subdivisions of this state, including, but not limited to, the Public Employee's Insurance
Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation
Fund, state colleges and universities, public hospitals, state or local institutions such as nursing
homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau
of Medical Services: Provided, That any contract or agreement executed with or on behalf of the
Bureau of Medical Services shall contain all necessary provisions to comply with the provisions of
Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., dealing with pharmacy services
offered to recipients under the medical assistance plan of West Virginia;
(2) Governments of other states and jurisdictions and their individual departments, agencies,
authorities, institutions, programs, quasi-public corporations and political subdivisions;
(3) Regional or multistate purchasing alliances or consortia, formed for the purpose of
pooling the combined purchasing power of the individual members in order to increase bargaining
power; and
(4) Arrangements with entities in the private sector, including, commercial insurance carriers,
self-funded benefit plans and private and not-for-profit health care organizations toward combined
purchasing of health care services, health care management services, pharmacy benefits management
services or pharmaceutical products: Provided, That no private entity may be compelled to
participate in the prescription drug purchasing pool.
(b) The Council created pursuant to section twelve of this article is responsible for reviewing
any proposed contract authorized by this article before it is executed by the Advocate. If the Council
determines that the proposed contract meets the requirements of this article and would assist in
effectively managing the costs for the programs involved and would not result in jeopardizing state
funds or funds due the state, it shall recommend to the Advocate to execute the contract.
(c) The Council may not recommend and the Advocate may not execute any agreement that
does not effectively and efficiently manage rising drug costs on behalf of the parties to the
agreement.
(d) The Council may not recommend and the Advocate may not execute any agreement that
grants the state's credit for the purchase of prescription drugs by any entity other than this state.
§5A-3C-8. Audit required; reports.
(a) The Advocate shall cause to be conducted an audit of any funds expended pursuant to any
prescription drug purchasing agreement or pharmacy benefit management contract executed under
the provisions of this article for each fiscal year that the prescription drug purchasing agreement or
pharmacy benefit management contract is in effect. The Advocate shall submit the audit to the Joint
Committee on Government and Finance upon completion, but in no event later than the thirty-first
day of December after the end of the fiscal year subject to the audit.
(b) The Advocate shall provide written notice to the Joint Committee on Government and
Finance before executing a prescription drug purchasing agreement or a pharmacy benefit
management contract or amending an existing prescription drug contract.
§5A-3C-9. Authorization to execute pharmacy benefit management contract.
The Advocate may negotiate and execute pharmacy benefit management contracts pursuant
to review by the advisory council for the purpose of managing rising drug costs for this state and all parties which have executed prescription drug purchasing agreements with the state or any state
agency, including, but not limited to, the Public Employees Insurance Agency, the Children's Health
Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail
and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the
Division of Rehabilitation, public health departments and the Bureau of Medical Services or other
programs which are payors for prescription drugs.
§5A-3C-10. Authorization to amend existing contracts.
The Advocate may renegotiate and amend existing prescription drug contracts to which the
state or any state agency, including, but not limited to, the Public Employees Insurance Agency, the
Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services,
the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state
colleges and universities, public hospitals, state or local institutions such as nursing homes, veterans'
homes, the Division of Rehabilitation, public health departments and the Bureau of Medical
Services, or other programs which are payors for prescription drugs is a party for the purpose of
managing rising drug costs.
§5A-3C-11. Exemption from Purchasing Division requirements.
The provisions of article three, chapter five-a of this code do not apply to the agreements and
contracts executed under the provisions of this article, except that the contracts and agreements shall
be approved as to form and conformity with applicable law by the Attorney General.
§5A-3C-12. Creation of the West Virginia Pharmaceutical Advocate Advisory Council.
(a) The West Virginia Pharmaceutical Advocate Advisory Council is hereby created. The
Council is an independent, self-sustaining council that has the powers and duties specified in this
article.
(b) The Council is a part-time council whose members perform such duties as specified in
this article. The ministerial duties of the Council shall be administered and carried out by the Office
of the Pharmaceutical Advocate.
(c) Each member of the Council shall devote the time necessary to carry out the duties and
obligations of the office. Those members appointed by the Governor may pursue and engage in
another business or occupation or gainful employment that is not in conflict with the duties of the
Council.
(d) The Council is self-sustaining and independent, however, it, its members, the Advocate
and employees of the Office of the Pharmaceutical Council are subject to article nine-a of chapter
six, chapter six-b, chapter twenty-nine-a and chapter twenty-nine-b of this code.
§5A-3C-13. Appointment of members of the West Virginia Pharmaceutical Advocate
Advisory Council; chairman; qualifications and eligibility;
reimbursement for expenses.
(a) The Council is comprised of the Pharmaceutical Advocate, the Secretary of the
Department of Administration or his or her designee, the Director of the Public Employees Insurance
Agency or his or her designee, the Commissioner of the Bureau of Medical Services of the
Department of Health and Human Resources or his or her designee, the Secretary of the Department
of Health and Human Resources or his or her designee, the Commissioner of the Bureau of Senior
Services or his or her designee, the Secretary of the Department of Military Affairs and Public Safety
or his or her designee, the Secretary of the Department of Education and the Arts or his or her
designee, and five members from the public who shall be appointed by the Governor with the advice
and consent of the Senate. One public member shall be a licensed pharmacist employed by a
community retail pharmacy, one public member shall be a representative of a pharmaceutical
manufacturer with substantial operations located in West Virginia that has at least seven hundred
fifty employees, one public member shall be a primary care physician, one public member shall
represent those who will receive benefit from the establishment of the Office of the Pharmaceutical
Advocate and one public member shall have experience in the financing, development or
management of a health insurance company which provides pharmaceutical coverage. Each public
member shall serve for a term of four years. Of the public members of the Council first appointed,
one shall be appointed for a term ending the thirtieth day of June, two thousand six, and two each for terms of three and four years. Each public member serves until his or her successor is appointed
and has qualified. A member of the Council may be removed by the Governor for cause.
(b) The Pharmaceutical Advocate serves as Chairperson of the Council.
(c) Council members may not be compensated in their capacity as members but shall be
reimbursed for reasonable expenses incurred in the performance of their duties.
§5A-3C-14. Meeting requirements.
(a) The Council shall meet within the state at least once per calendar quarter or at such times
as the Chairman may decide. The Council shall also meet upon a call of five or more members upon
seventy-two hours written notice to each member.
(b) Seven members of the Council are a quorum for the transaction of any business and for
the performance of any duty.
(c) A majority vote of the members present is required for any final determination by the
Council. Voting by proxy is not allowed.
(d) The Council shall keep a complete and accurate record of all its meetings according to
section five, article nine-a, chapter six of this code.
§5A-3C-15. Removal of Council members.
Notwithstanding the provisions of section four, article six, chapter six of this code, the
Governor may remove any Council member for incompetence, misconduct, gross immorality,
misfeasance, malfeasance or nonfeasance in office.
§5A-3C-16. General duties of the West Virginia Pharmaceutical Advocate Advisory Council.
The Council has general responsibility to review and provide advice and comment to the
Office of the Pharmaceutical Advocate on its policies and procedures relating to the purchase of
prescription drugs. The Council shall offer advice to the Office of the Pharmaceutical Advocate on
matters over which the office has authority and oversight. This includes, but is not limited to:
(1) Hiring of professional, clerical, technical and administrative personnel as may be
necessary to carry out the provisions of this article;
(2) Promulgation of rules, including emergency rules, that are necessary to carry out the
provisions of this article;
(3) Contracts or agreements; and
(4) Development of policy necessary to meet the duties and responsibilities of the Office or
the Advocate pursuant to the provisions of this article.
§5A-3C-17. Multistate discussion group; agreements.
The Advocate, for the purposes of administering, reviewing or amending the duties and
responsibilities granted him or her by this article, shall continue to investigate the feasibility of
mulitstate discussions and may enter into multistate discussions and agreements when to do so would
enure to the financial benefit of all West Virginians who are consumers of pharmaceuticals.
§5A-3C-18. Authorization to take advantage of Acts of Congress, accept gifts, grants and
matching funds.
The Office of the Pharmaceutical Advocate is authorized to take full advantage of the
benefits and provisions of any Acts of Congress and to accept any and all gifts, grants and matching
funds whether in the form of money or services.
§5A-3C-19. Agency's management ability continued.
Nothing contained in this article limits the ability of the various state agencies to enter into
contracts or arrangements or to otherwise manage their pharmacy programs until such time as the
programs created or authorized pursuant to this article are implemented.
§5A-3C-20. Restraint of trade; civil and criminal violations defined.
(a) The following are considered to restrain trade or commerce unreasonably and are
unlawful:
(1) A contract, combination or conspiracy between two or more persons:
(A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee
of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or geographic, for any
pharmaceutical; or
(2) The establishment, maintenance or use of a monopoly or an attempt to establish a
monopoly of trade or commerce, any part of which is within this state, by any person for the purpose
of or with the intent to exclude competition or control, fix or maintain pharmaceutical prices.
(b) Any person violating the provisions of this section is guilty of a felony and, upon
conviction thereof, shall be confined in a state correctional facility for not less than one nor more
than ten years, or fined in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which
may include treble damages, or both fined and confined.
(c) Any person violating the provisions of this section is liable for a civil penalty and fine in
an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which may include treble damages,
for each violation.
(d) The county prosecuting attorney shall investigate suspected violations of, and institute
criminal proceedings pursuant to, the provisions of this section.
(e) The Attorney General or special counsel appointed by the Governor, in his or her
discretion, shall represent the state in all civil proceedings brought on behalf of the state to enforce
the provisions of this section. After payment of all attorney fees and costs, no less than fifty percent
of all judgments or settlements shall be placed in the General Revenue Fund of the state.
§5A-3C-21. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on aggregate national data, shall be
reported to the Pharmaceutical Advocate by all manufacturers and labelers of prescription drugs
dispensed in this state that employ, direct or utilize marketing representatives. The reporting shall
assist this state in its role as a purchaser of prescription drugs and an administrator of prescription
drug programs, enabling this state to determine the scope of prescription drug advertising costs and
their effect on the cost of prescription drugs, utilization and delivery of health care services and
furthering the role of this state as guardian of the public interest.
(b) The Advocate shall establish, by legislative rule pursuant to the provisions of article three,
chapter twenty-nine-a of this code, the reporting requirements of information by labelers and
manufacturers which shall include all national aggregate expenses associated with advertising and
direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail
and telephone communications as they pertain to residents of this state.
(c) The following are exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be distributed to patients;
(2) All payments of reasonable compensation and reimbursement of expenses in connection
with a bona fide clinical trial. As used in this subdivision, 'clinical trial' means an approved clinical
trial conducted in connection with a research study designed to answer specific questions about
vaccines, new therapies or new ways of using known treatments; and
(3) All scholarship or other support for medical students, residents and fellows to attend
significant educational, scientific or policy-making conferences of national, regional or specialty
medical or other professional associations if the recipient of the scholarship or other support is
selected by the association.
(d) The Advocate is authorized to establish time lines, the documentation, form and manner
of reporting required as he or she determines necessary to effectuate the purposes of this article. The
Advocate shall include in the annual report required pursuant to subsection (e) of section six of this
article, in an aggregate form, the information provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary, information submitted to the
Advocate pursuant to this section is confidential and is not a public record and is not available for
release pursuant to the West Virginia Freedom of Information Act. Data compiled in aggregate form
by the Advocate for the purposes of reporting required by this section is a public record as defined
in the West Virginia Freedom of Information Act, as long as it does not reveal trade information that
is protected by state or federal law.
§5A-3C-22. State role; authority for participation by all state agencies.
(a) For purpose of implementing this article, the state is represented by the Pharmaceutical
Advocate and he or she has authority to negotiate pharmaceutical prices to be paid by program
participants. These negotiated prices shall be available to all programs.
(b) The Public Employees Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals,
state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs shall have the authority to participate in any program developed by the Office
of the Pharmaceutical Advocate, including but not limited to, a uniform preferred drug list.
§5A-3C-23. Participation by private individuals, commercial insurance carriers, self-insured
companies and others in negotiated drug pricing program.
(a) The Advocate, for the purposes of administering, reviewing or amending the duties and
responsibilities granted him or her by this article, shall investigate the feasibility of including private
individuals, commercial insurance carriers, self-insured companies and private and not-for-profit
hospitals in a negotiated drug pricing program.
(b) The Advocate has the power to establish programs and procedure necessary to allow
private individuals, commercial insurance carriers, self-insured companies and private and
not-for-profit health care providers to participate in the negotiated drug pricing program. This power
includes, but is not limited to, the power to:
(1) Negotiate and execute contracts or cooperative agreements necessary to permit private
individuals, commercial insurance carriers, self-insured companies and private and not-for-profit
health care providers to participate in the negotiated drug pricing program; and
(2) Promulgate legislative rules, pursuant to the provisions of article three, chapter twenty-
nine-a of this code, necessary to facilitate the participation of private individuals, commercial
insurance carriers, self-insured companies and private and not-for-profit health care providers in the
negotiated drug pricing program.
§5A-3C-24. Rulemaking.
To implement any section of this article the Office of the Pharmaceutical Advocate, in
consultation with the Council, shall propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code. This authority shall include emergency rule-making
authority pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this
code. These rules may include, but are not limited to:
(1) Development of criteria to establish a purchasing consortium, including, but not limited
to, membership eligibility, which shall include state entities that are payors for prescription drugs
and may include private individuals and commercial insurance carriers; self-funded benefit plans and private and not-for-profit health care providers; consortium operation and functionality and the
manner and procedure for the consortium to either bid or negotiate pricing with pharmaceutical
manufacturers using the federal supply schedule as a benchmark for obtaining lower priced
pharmaceuticals;
(2) Development of a uniform preferred drug list for use by state entities who are payors for
prescription drugs. These entities include, but are not limited to, the Public Employees Insurance
Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation
Fund, state colleges and universities, public hospitals, state or local institutions such as nursing
homes, veterans' homes, the Division of Rehabilitation, public health departments and the Bureau
of Medical Services, or other programs which are payors for prescription drugs;
(3) The reporting requirements of information by labelers and manufacturers required
pursuant to section twenty-one of this article which shall include all national aggregate expenses
associated with advertising and direct promotion of prescription drugs through radio, television,
magazines, newspapers, direct mail and telephone communications as they pertain to residents of
this state;
(4) Development of a virtual wholesale program to allow the state to act as a pharmaceutical
drug wholesaler and ensure that prices obtained by a buying consortium operated by the
Pharmaceutical Advocate would be made available for purchase by local pharmacies if the
Pharmaceutical Advocate finds it necessary;
(5) Procedural requirements of execution of pharmacy benefit management contracts
pursuant to section nine of this article and prescription drug purchasing agreements pursuant to
section seven of this article; and
(6) Other legislative and procedural rules considered necessary by the Pharmaceutical
Advocate to carry out the duties and responsibilities prescribed to the Advocate or the Office of the
Pharmaceutical Advocate in this article.
§5A-3C-25. Potential use of savings.
Savings identified by all program participants shall be quantified and certified to the
Pharmaceutical Advocate and included in the annual report of the Pharmaceutical Advocate to the
Governor and the Legislature provided in subsection (e) of section six of this article. Savings, or any
part of the savings, created by the implementation of this program may, in the sole discretion of the
Legislature, be directed towards the maintenance of existing state health programs and the expansion
of insurance programs for the uninsured and underinsured.
§5A-3C-26. Sunset provision.
The Office of the Pharmaceutical Advocate, the Pharmaceutical Advocate and the
Pharmaceutical Advocate Advisory Council shall continue to exist, pursuant to the provisions of
article ten, chapter four of this code, until the first day of July, two thousand eight, unless sooner
terminated, continued or reestablished pursuant to the provisions of that article.
§5A-3C-27. Severability.
If any provision of this article is held to be unconstitutional or void, the remaining provisions
of this article remain valid, unless the court finds the valid provisions are so essentially and
inseparable connected with, and so dependent upon, the unconstitutional or void provisions that the
court cannot presume the Legislature would have enacted the remaining valid provisions without the
unconstitutional or void provision, or unless the court finds the remaining valid provisions, standing
alone, are incomplete and are incapable of being executed in accordance with the Legislative intent.
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each
department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary employees as necessary to carry
out the functions of the secretary, which employees shall serve at the will and pleasure of the
secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and
economically, and develop goals, objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of
board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees,
other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the Governor, and transfer within
the department funds appropriated to the various agencies of the department which are not expended
due to cost savings resulting from the implementation of the provisions of this chapter: Provided,
That no more than twenty-five percent of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department: Provided, however, That no funds
may be transferred from a special revenue account, dedicated account, capital expenditure account
or any other account or fund specifically exempted by the Legislature from transfer, except that the
use of appropriations from the State Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose for which such funds were
dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated
to that agency, board or function in order to implement consolidation. The authority to transfer funds
under this section shall expire on the thirtieth day of June, two thousand five;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and
authorize the expenditure or obligating of public funds as authorized by law: Provided, That the
powers granted to the secretary to enter into contracts or agreements and to make expenditures or
obligations of public funds under this provision shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the various commissioners, directors or
board members of the various departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or
dispose of any property of whatever kind or character as authorized by law: Provided, That the
powers granted to the secretary to lease, purchase, convey or dispose of such property shall not
exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to
the various commissioners, directors or board members of the various departments, agencies or
boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this
code, to implement and make effective the powers, authority and duties granted and imposed by the
provisions of this chapter, promulgation to be in accordance with the provisions of chapter
twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two,
article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the
department, without which written consent no proposal of a rule shall have any force or effect;
(13) Delegate to administrators duties of the secretary as he or she considers appropriate from
time to time to facilitate execution of the powers, authority and duties delegated to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise
prohibited by law.
(b) The secretaries of the departments created in this chapter shall engage in a comprehensive
review of the practices, policies and operations of the agencies and boards within their departments
to determine the feasibility of cost reductions and increased efficiency which may be achieved
therein, including, but not limited to, the following:
(1) The elimination, reduction and restrictions in the use of the state's vehicles or other
transportation fleet;
(2) The elimination, reduction and restrictions in the preparation of state government
publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the state
and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual
basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing
procedures, including consideration of means by which domestic businesses may be assisted to
compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the
powers granted to the secretaries in this section shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law or regulation, any federal-state
program or federally delegated program or jeopardize the approval, existence or funding of any such
program and the powers granted to the secretary shall be so construed.
(d) The layoff and recall rights of employees within the classified service of the state as
provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall
be limited to the organizational unit within the agency or board and within the occupational group
established by the classification and compensation plan for the classified service of the agency or
board in which the employee was employed prior to the agency or board's transfer or incorporation
into the department: Provided, That the employee shall possess the qualifications established for
the job class. The duration of recall rights provided in this subsection shall be limited to two years
or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained
in this section shall be construed to abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code, or the
right of classified employees of the Board of Regents to the procedures and protections set forth in
article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any provision of this code to the contrary the secretary of each
department with authority over programs which are payors for prescription drugs, including but not
limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority, the Workers' Compensation Fund, state colleges and universities, public
hospitals, state or local institutions such as nursing homes, veteran's homes, the Division of
Rehabilitation, public health departments and the Bureau of Medical Services or other programs
which are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical
Advocate established pursuant to section four, article three-c, chapter five-a of this code for the
purpose of purchasing prescription drugs for any program over which they have authority.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State Excess Lottery Revenue Fund.
(a) There is continued a special revenue fund within the State Lottery Fund in the State
Treasury which is designated and known as the 'State Excess Lottery Revenue Fund.' The Fund
consists of all appropriations to the Fund and all interest earned from investment of the Fund and any
gifts, grants or contributions received by the Fund. All revenues received under the provisions of
sections ten-b and ten-c, article twenty-two-a of this chapter and under article twenty-two-b of this
chapter, except the amounts due the Commission under section 29-22B-1408(a)(1) of this chapter,
shall be deposited in the State Treasury and placed into the 'State Excess Lottery Revenue Fund.'
The revenue shall be disbursed in the manner provided in this section for the purposes stated in this
section and shall not be treated by the Auditor and the State Treasurer as part of the general revenue
of the state.
(b) For the fiscal year beginning the first day of July, two thousand two, the Commission
shall deposit: (1) Sixty-five million dollars into the subaccount of the State Excess Lottery Revenue
Fund hereby created in the State Treasury to be known as the 'General Purpose Account' to be
expended pursuant to appropriation of the Legislature; (2) ten million dollars into the Education
Improvement Fund for appropriation by the Legislature to the 'Promise Scholarship Fund' created
in section seven, article seven, chapter eighteen-c of this code; (3) nineteen million dollars into the
Economic Development Project Fund created in subsection (d) of this section for the issuance of
revenue bonds and to be spent in accordance with the provisions of said subsection; (4) twenty million dollars into the School Building Debt Service Fund created in section six, article nine-d,
chapter eighteen of this code for the issuance of revenue bonds; (5) forty million dollars into the
West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this
code, to be spent in accordance with the provisions of said article; (6) ten million dollars into the
Higher Education Improvement Fund for higher education; and (7) five million dollars into the State
Park Improvement Fund for park improvements. For the fiscal year beginning the first day of July,
two thousand three, the Commission shall deposit: (1) Sixty-five million dollars into the General
Purpose Account to be expended pursuant to appropriation of the Legislature; (2) seventeen million
dollars into the Education Improvement Fund for appropriation by the Legislature to the 'Promise
Scholarship Fund' created in section seven, article seven, chapter eighteen-c of this code; (3)
nineteen million dollars into the Economic Development Project Fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in accordance with the provisions of
said subsection; (4) twenty million dollars into the School Building Debt Service Fund created in
section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia Infrastructure Fund created in section nine, article fifteen-a,
chapter thirty-one of this code, to be spent in accordance with the provisions of said article; (6) ten
million dollars into the Higher Education Improvement Fund for higher education; and (7) five
million dollars into the State Park Improvement Fund for park improvements.
(c) For the fiscal year beginning the first day of July, two thousand four, and subsequent
fiscal years, the Commission shall deposit: (1) Sixty-five million dollars into the General Purpose
Account to be expended pursuant to appropriation of the Legislature; (2) twenty-seven million
dollars into the Education Improvement Fund for appropriation by the Legislature to the 'Promise
Scholarship Fund' created in section seven, article seven, chapter eighteen-c of this code; (3)
nineteen million dollars into the Economic Development Project Fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in accordance with the provisions of
said subsection; (4) nineteen million dollars into the School Building Debt Service Fund created in
section six, article nine-d, chapter eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia Infrastructure Fund created in section nine, article fifteen-a, chapter thirty-one of this code to be spent in accordance with the provisions of said article; (6) ten
million dollars into the Higher Education Improvement Fund for higher education; and (7) five
million dollars into the State Park Improvement Fund for park improvements. No portion of the
distributions made as provided in this subsection and subsection (b) of this section, except
distributions made in connection with bonds issued under subsection (d) of this section, may be used
to pay debt service on bonded indebtedness until after the Legislature expressly authorizes issuance
of the bonds and payment of debt service on the bonds through statutory enactment or the adoption
of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment
or adoption of a resolution that expressly authorizes issuance of the bonds and payment of debt
service on the bonds with funds distributed under this subsection and subsection (b) of this section,
except distributions made in connection with bonds issued under subsection (d) of this section, the
distributions may be used only to fund capital improvements that are not financed by bonds and only
pursuant to appropriation of the Legislature.
(d) The Legislature finds and declares that in order to attract new business, commerce and
industry to this state, to retain existing business and industry providing the citizens of this state with
economic security and to advance the business prosperity of this state and the economic welfare of
the citizens of this state, it is necessary to provide public financial support for constructing,
equipping, improving and maintaining economic development projects, capital improvement projects
and infrastructure which promote economic development in this state.
(1) The West Virginia Economic Development Authority created and provided for in article
fifteen, chapter thirty-one of this code shall, by resolution, in accordance with the provisions of this
article and article fifteen, chapter thirty-one of this code, and upon direction of the Governor, issue
revenue bonds of the Economic Development Authority in no more than two series to pay for all or
a portion of the cost of constructing, equipping, improving or maintaining projects under this section
or to refund the bonds at the discretion of the Authority. Any revenue bonds issued on or after the
first day of July, two thousand two, which are secured by state excess lottery revenue proceeds shall
mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the
special fund provided in this section for the payment.
(2) There is continued in the State Treasury a special revenue fund named the 'Economic
Development Project Fund' into which shall be deposited on and after the first day of July, two
thousand two, the amounts to be deposited in said Fund as specified in subsections (b) and (c) of this
section. The Economic Development Project Fund shall consist of all such moneys, all
appropriations to the Fund, all interest earned from investment of the Fund and any gifts, grants or
contributions received by the Fund. 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 section, including any and all commercially customary
and reasonable costs and expenses which may be incurred in connection with the issuance,
refunding, redemption or defeasance thereof. The West Virginia Economic Development Authority
may further provide in the resolution and in the trust agreement for priorities on the revenues paid
into the Economic Development Project Fund as may be necessary for the protection of the prior
rights of the holders of bonds issued at different times under the provisions of this section. The
bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have
been issued from time to time under the provisions of this article.
(3) After the West Virginia Economic Development Authority has issued bonds authorized
by this section and after the requirements of all funds have been satisfied, including any coverage
and reserve funds established in connection with the bonds issued pursuant to this subsection, any
balance remaining in the Economic Development Project Fund may be used for the redemption of
any of the outstanding bonds issued under this subsection 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 redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall
not again be issued.
(4) Bonds issued under this subsection shall state on their face that the bonds do not
constitute a debt of the State of West Virginia; that payment of the bonds, interest and charges
thereon cannot become an obligation of the State of West Virginia; and that the bondholders' remedies are limited in all respects to the 'special revenue fund' established in this subsection for
the liquidation of the bonds.
(5) The West Virginia Economic Development Authority shall expend the bond proceeds
from the revenue bond issues authorized and directed by this section for such projects as may be
certified under the provision of this subsection: Provided, That the bond proceeds shall be expended
in accordance with the requirements and provisions of article five-a, chapter twenty-one of this code
and either article twenty-two or twenty-two-a, chapter five of this code, as the case may be:
Provided, however, That if such bond proceeds are expended pursuant to article twenty-two-a,
chapter five of this code and if the design-build board created under said article determines that the
execution of a design-build contract in connection with a project is appropriate pursuant to the
criteria set forth in said article and that a competitive bidding process was used in selecting the
design builder and awarding such contract, such determination shall be conclusive for all purposes
and shall be deemed to satisfy all the requirements of said article.
(6) For the purpose of certifying the projects that will receive funds from the bond proceeds,
a committee is hereby established and comprised of the Governor, or his or her designee, the
Secretary of the Department of tax and Revenue, the Executive Director of the West Virginia
Development Office and six persons appointed by the Governor: Provided, That at least one citizen
member must be from each of the state's three congressional districts. The committee shall meet as
often as necessary and make certifications from bond proceeds in accordance with this subsection.
The committee shall meet within thirty days of the effective date of this section.
(7) Applications for grants submitted on or before the first day of July, two thousand two,
shall be considered refiled with the committee. Within ten days from the effective date of this
section as amended in the year two thousand three, the lead applicant shall file with the committee
any amendments to the original application that may be necessary to properly reflect changes in facts
and circumstances since the application was originally filed with the committee.
(8) When determining whether or not to certify a project, the committee shall take into
consideration the following:
(A) The ability of the project to leverage other sources of funding;
(B) Whether funding for the amount requested in the grant application is or reasonably should
be available from commercial sources;
(C) The ability of the project to create or retain jobs, considering the number of jobs, the type
of jobs, whether benefits are or will be paid, the type of benefits involved and the compensation
reasonably anticipated to be paid persons filling new jobs or the compensation currently paid to
persons whose jobs would be retained;
(D) Whether the project will promote economic development in the region and the type of
economic development that will be promoted;
(E) The type of capital investments to be made with bond proceeds and the useful life of the
capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No grant may be awarded to an individual or other private person or entity. Grants may
be awarded only to an agency, instrumentality or political subdivision of this state or to an agency
or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be certified to receive a low-interest loan
paid from bond proceeds. The terms and conditions of the loan, including, but not limited to, the
rate of interest to be paid and the period of the repayment, shall be determined by the Economic
Development Authority after considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall conduct at least one public
hearing, which may be held outside of Kanawha County. Notice of the time, place, date and purpose
of the hearing shall be published in at least one newspaper in each of the three congressional districts
at least fourteen days prior to the date of the public hearing.
(11) The committee may not certify a project unless the committee finds that the project is
in the public interest and the grant will be used for a public purpose. For purposes of this subsection,
projects in the public interest and for a public purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports and sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater treatment facilities, pumping
facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and facilities;
(F) Industrial parks, including construction of roads, sewer, water, lighting and other
facilities;
(G) Improvements at state parks, such as construction, expansion or extensive renovation of
lodges, cabins, conference facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on public or private land
necessary to retain existing businesses or attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking and hiking trails, bike trails, picnic
facilities, restrooms, boat docking and fishing piers, basketball and tennis courts, and baseball,
football and soccer fields;
(J) State-owned buildings that are registered on the national register of historic places;
(K) Retail facilities, including related service, parking and transportation facilities,
appropriate lighting, landscaping and security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic development, educational
opportunities or tourism opportunities thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection, the committee shall certify to the
Economic Development Authority a list of those certified projects that will receive funds from the
proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other than
by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying costs and making grants and
loans as provided in this subsection, the surplus may be deposited in an account created in the State
Treasury to be known as the 'Economic Development Project Bridge Loan Fund' to be administered
by the Economic Development Authority created in article fifteen, chapter thirty-one of this code.
Expenditures from the Fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a
of this code. Loan repayment amounts, including the portion attributable to interest shall be paid into
the Fund created in this subdivision.
(e) If the Commission receives revenues in an amount that is not sufficient to fully comply
with the requirements of subsections (b), (c) and (h) of this section, the Commission shall first make
the distribution to the Economic Development Project Fund; second, make the distribution or
distributions to the other funds from which debt service is to be paid; third, make the distribution to
the Education Improvement Fund for appropriation by the Legislature to the Promise Scholarship
Fund; and fourth, make the distribution to the General Purpose Account: Provided, That, subject
to the provisions of this subsection, to the extent such revenues are not pledged in support of revenue
bonds which are or may be issued from time to time under this section, the revenues shall be
distributed on a pro rata basis.
(f) For the fiscal year beginning on the first day of July, two thousand two, and each fiscal
year thereafter, the Commission shall, after meeting the requirements of subsections (b), (c) and (h)
of this section and after transferring to the State Lottery Fund created under section eighteen of this
article an amount equal to any transfer from the State Lottery Fund to the Excess Lottery Fund
pursuant to subsection (f), section eighteen of this article, deposit fifty percent of the amount by
which annual gross revenue deposited in the State Excess Lottery Revenue Fund exceeds two
hundred twenty-five million dollars in a fiscal year in a separate account in the State Lottery Fund
to be available for appropriation by the Legislature.
(g) When bonds are issued for projects under subsection (d) of this section or for the School
Building Authority, infrastructure, higher education or park improvement purposes described in this
section that are secured by profits from lotteries deposited in the State Excess Lottery Revenue Fund,
the Lottery Director shall allocate first to the Economic Development Project Fund an amount equal
to one tenth of the projected annual principal, interest and coverage requirements on any and all
revenue bonds issued, or to be issued, on or after the first day of July, two thousand two, as certified
to the Lottery Director; and second, to the fund or funds from which debt service is paid on bonds issued under this section for the School Building Authority, infrastructure, higher education and park
improvements an amount equal to one tenth of the projected annual principal, interest and coverage
requirements on any and all revenue bonds issued, or to be issued, on or after the first day of April,
two thousand two, as certified to the Lottery Director. In the event there are insufficient funds
available in any month to transfer the amounts required pursuant to this subsection, the deficiency
shall be added to the amount transferred in the next succeeding month in which revenues are
available to transfer the deficiency.
(h) In fiscal year two thousand four and thereafter, prior to the distributions provided in
subsection (c) of this section, the Lottery Commission shall deposit into the General Revenue Fund
amounts necessary to provide reimbursement for the refundable credit allowable under section
twenty-one, article twenty-one, chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities in the expenditure of any surplus
revenue funds:
(A) Providing salary and/or increment increases for professional educators and public
employees;
(B) Providing adequate funding for the Public Employees Insurance Agency; and
(C) Providing funding to help address the shortage of qualified teachers and substitutes in
areas of need, both in number of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by any court to require any
appropriation or any specific appropriation or level of funding for the purposes set forth in this
subsection.
(j) The Legislature further directs the governor to focus resources on the creation of a
prescription drug program for senior citizens by pursuing a medicaid waiver to offer prescription
drug services to senior citizens; by investigating the establishment of purchasing agreements with
other entities to reduce costs; by providing discount prices or rebate programs for seniors; by
coordinating programs offered by pharmaceutical manufacturers that provide reduced cost or free
drugs; by coordinating a collaborative effort among all state agencies to ensure the most efficient and
cost effective program possible for the senior citizens of this state; and by working closely with the state's congressional delegation to ensure that a national program is implemented. The Legislature
further directs that the governor report his progress back to the joint committee on government and
finance on an annual basis beginning in November of the year two thousand one until a
comprehensive program has been fully implemented.
On pages four and five, by amending the enacting section to read as follows:
"That §5-16-7b of the Code of West Virginia, 1931, as amended; be repealed; that §5-16C-1,
§5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9, §5-16C-10
of said code be repealed; that §5A-3-1a of said code be repealed; that §5A-3C-1, §5A-3C-2,
§5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10,
§5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said
code be amended and reenacted; that said article be amended by adding thereto new sections,
designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24,
§5A-3C-25, §5A-3C-26, and §5A-3C-27; that §5F-2-2 of said code be amended and reenacted; and
that §29-22-18a of said code be amended and reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2852- "A Bill to repeal §5-16-7b of the Code of West Virginia, 1931,
as amended; to repeal §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7,
§5-16C-8, §5-16C-9, §5-16C-10 of said code; to repeal §5A-3-1a of said code; to amend and reenact
§5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8,
§5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16
and §5A-3C-17 of said code; to amend said article by adding thereto new sections, designated
§5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25,
§5A-3C-26, and §5A-3C-27; to amend and reenact §5F-2-2 of said code; and to amend and reenact
§29-22-18a of said code, all relating generally to the creation of the Office of the Pharmaceutical
Advocate and the transfer of most of the powers and responsibilities of the Pharmaceutical Cost
Management Council to the Pharmaceutical Advocate; legislative findings; defining terms; powers
and duties of the Office of the Pharmaceutical Advocate; creation of the cabinet level position of the Pharmaceutical Advocate; qualifications and salary of the Pharmaceutical Advocate; powers and
duties of the Pharmaceutical Advocate; creation of the Pharmaceutical Advisory Council;
qualifications of Council members; powers and duties of the Council; reporting requirements of the
Council, the Pharmaceutical Advocate and the Office of the Pharmaceutical Advocate; transferring
powers and duties of the West Virginia Public Employees Insurance Act to negotiate for and
purchase pharmaceuticals to the Pharmaceutical Advocate; transfer of the powers and duties to
negotiate and execute prescription drug purchasing agreements to the Pharmaceutical Advocate;
transfer of the powers and duties to negotiate and execute pharmacy benefit management contracts
to the Pharmaceutical Advocate; establishing the Federal Supply Schedule as a benchmark for the
purchase of Brand name pharmaceutical drugs; exempting the Pharmaceutical Advocate from state
purchasing requirements; authority to investigate the feasibility of purchasing Canadian drugs;
authority to investigate multi-state discussion groups and agreements; elimination of the transfer of
the clearinghouse program to the state; elimination of the transfer of the pharmaceutical discount
program to the state; authorizing the Pharmaceutical Advocate to take advantage of act of congress,
accept gifts, grants and matching funds; continuing agency management ability until the Office of
the Pharmaceutical Advocate is operational; prohibiting restraint of trade and conforming the
standards for same with other provisions of the code; providing civil and criminal penalties for
restraint of trade; reporting of advertising costs to the Pharmaceutical Advocate; state role and
responsibilities; participation by all state agencies who are payors for prescription drugs; authority
for the Pharmaceutical Advocate to investigate participation in a preferred drug list by private
individuals, commercial insurance carriers and self-insured companies; rule-making authority;
identifying potential use of savings; sunset provisions; severability provision; transfer of the powers
and duties of the West Virginia Pharmaceutical Cost Management Council to the Office of the
Pharmaceutical Advocate; providing authority for the secretary of each department to cooperate with
the Office of the Pharmaceutical Advocate in the purchase of prescription drugs; and elimination of
requirement that the Governor focus resources on creation of a prescription drug program from the
State Lottery Act."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with an amendment, as follows:
On page two, section two, line seventeen, following the word "a" by inserting the words
"pricing schedule".
On page two, section two, line 18, following the word "schedule" by deleting the word
"benchmark".
On page three, section two, line eight, following the word "Advocate" and the period by
inserting the following:
"(f) The Legislature, while making no attempt to prevent the public from receiving
information important to the appropriate utilization of medicines, is attempting to protect the
financial solvency of the state from drug pricing increases caused by advertising directed to the
consumer so as to sustain the unjustified utilization of new, often unproven, and expensive drugs.
The specific state financial interest in reducing the price of prescription drugs, in addition to the
general state interest of its financial solvency, includes the significantly increased Medicaid budget
of the state caused by increasing numbers of West Virginia citizens in the program and also by
significantly increasing costs of prescription drugs in the Medicaid budget. The specific state interest
also includes the significantly increasing costs of prescription drugs in the budget of the state Public
Employees Insurance Agency, the health insurance program for all of the state employees and
participating political units of local government. The specific state interest also includes the
significantly increasing costs of prescription drugs in the budgets of each state agency set out in
section four of this article."
On page fifteen, section six, line five, following the number "2005" and the period by
inserting the following:
"(14) If the pharmaceutical advocate, with the advice of the council, determines that a
pharmaceutical manufacturer is negotiating pharmaceutical prices so that the savings to the state are
substantial, reasonable and reflective of a genuine effort to reach agreement, the pharmaceutical
advocate shall continue to participate in the negotiations with the specific goal of reducing the cost
of pharmaceuticals for the citizens of the state. If the pharmaceutical advocate, with advise of the council, determines that any pharmaceutical manufacturer does not negotiate so that the savings to
the state are substantial, reasonable and reflective of a genuine effort to reach agreement, the
pharmaceutical advocate may develop and implement the FSS Pricing benchmark with a procedure
for pharmaceutical manufacturers to apply for a waiver from the FSS pricing benchmark for Brand
name drugs, which waiver may be granted by the pharmaceutical advocate with input from the
council. The waiver may be granted to a pharmaceutical manufacturer for a particular Brand name
drug after the pharmaceutical advocate determines that the development, production, distribution
costs, other reasonable costs and reasonable profits, excluding all marketing and advertising costs,
is more than the FSS benchmark price of the pharmaceutical or in those cases in which the
pharmaceutical in question has a sole source. Advertising and marketing costs may be considered
in those cases in which the manufacturer has established that the drug is the only currently FDA-
approved treatment for a recognized non-cosmetic medical condition or that it has proven to the
FDA's satisfaction that it confers a significant benefit over existing treatments for the same
condition, as evidenced by the agency's approval of such a claim in the drug's package insert. The
determination of reasonable costs and reasonable profits may fluctuate between different
pharmaceuticals under consideration. The advocate shall determine, by legislative rule, fees to be
paid by the applicant at the time of the waiver application and proof required to be submitted at the
time of the waiver request.".
On page thirteen, section six, line eleven, following the word "the" by striking out the words
"involving the Public Employee Insurance Agency" and inserting inn lieu thereof the following "for
program participants".
On page thirteen, section six, line sixteen, following the word "the" by striking out the words
"members of the Public Employees Insurance Agency" and inserting in lieu thereof the words
"participants in the pharmaceutical program."
And,
On page twenty-three, section twenty, line nine, following the word "prices" by changing the
period to a semicolon and inserting the following:
"or
(3) Fixing, controlling, maintaining, limiting or discontinuing the production, manufacture,
sale or supply of any pharmaceuticals for the purpose or with the effect of fixing, controlling or
maintaining the market price of the pharmaceutical."
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 674), and there were--yeas
88, nays 12, absent and not voting none, with the nays being as follows:
Nays: Armstead, Ashley, Blair, Border, Carmichael, Hall, Lane, Overington, Schoen, Trump,
Wakim and Walters.
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. 2852) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 675), and there were--yeas 98, nays
2, absent and not voting none, with the nays being as follows:
Nays: Hall and Overington.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2852) 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.
Delegate Frich requested the Clerk to record her as voting "Nay" on the adoption of the
amendment to the Senate amendment.
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. 2878, Relating to allowing the fraud unit to investigate the forgery of
insurance documents.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page nineteen, section one-b, line three hundred thirty-seven, by striking out the words
"to be".
On page twenty-three, section one-b, line four hundred twenty, after the word "unit" by
striking out the comma.
On page twenty-six, section one-b, line four hundred seventy-six, after the word
"department" by inserting the word "of".
On page thirty, section eight, line twenty, by striking out the words "thirty-three; chapter".
On page thirty, section eight, line twenty, after the words "twenty-three;" by inserting the
words "chapter thirty-three;".
And,
On page thirty-two, section eight, line sixty, after the word "The" by inserting the word
"insurance".
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. 676), and there were--yeas
100, nays none, absent and not voting none.
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. 2878) 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. 2891, Relating to the reorganization of the executive branch of state government.
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 §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the
Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto
a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and
§5A-6-8; that §5A-7-4 of said code be amended and reenacted; that §5A-8-15 of said code be
amended and reenacted; that §5B-1-2 of said code be amended and reenacted; that §5B-3-4 and §5B-
3-5 of said code be amended and reenacted; that §5F-2-1 and §5F-2-2 of said code be amended and
reenacted; that §10-5-2 of said code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §10-5-5a; that §11-10A-6 and §11-10A-7 of said code be amended
and reenacted; that §17-16A-3 and §17-16A-10 of said code be amended and reenacted; that §21A-1-
4 of said code be amended and reenacted; and that §49-9-15 of said code be amended and reenacted,
all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 6. OFFICE OF TECHNOLOGY
§5A-6-1. Findings and purposes.
The Legislature finds and declares that information technology is essential to finding
practical solutions to the everyday problems of government, and that the management goals and
purposes of government are furthered by the development of compatible, linked information systems
across government. Therefore, it is the purpose of this article to create, as an integral part of the
Department of Administration, the Office of Technology with the authority to advise and make
recommendations to all state spending units on their information systems.
§5A-6-2. Definitions.
As used in this article:
(a) 'Information systems' means computer-based information equipment and related services
designed for the automated transmission, storage, manipulation and retrieval of data by electronic
or mechanical means;
(b) 'Information technology' means data processing and telecommunications hardware,
software, services, supplies, personnel, maintenance and training, and includes the programs and
routines used to employ and control the capabilities of data processing hardware;
(c) 'Information equipment' includes central processing units, front-end processing units,
miniprocessors, microprocessors and related peripheral equipment, including data storage devices,
networking equipment, services, routers, document scanners, data entry equipment, terminal
controllers, data terminal equipment, computer-based word processing systems other than memory
typewriters;
(d) 'Related services' include feasibility studies, systems design, software development and
time-sharing services whether provided by state employees or others;
(e) 'Telecommunications' means any transmission, emission or reception of signs, signals,
writings, images or sounds of intelligence of any nature by wire, radio or other electromagnetic or
optical systems. The term includes all facilities and equipment performing those functions that are
owned, leased or used by the executive agencies of state government;
(f) 'Chief Technology Officer' means the person holding the position created in section three
of this article and vested with authority to assist state spending units in planning and coordinating
information systems that serve the effectiveness and efficiency of the individual state spending units,
and further the overall management goals and purposes of government; and
(g) 'Experimental program to stimulate competitive research' (EPSCoR) means the West
Virginia component of the national EPSCoR program which is designed to improve the competitive
research and development position of selected states through investments in academic research
laboratories and laboratory equipment. The recognized West Virginia EPSCoR, which is part of the
Office of Technology, is the responsible organization for the coordination and submission of
proposals to all federal agencies participating in the EPSCoR program.
§5A-6-3. Office of Technology; Chief Technology Officer; appointment and qualifications.
The Office of Technology is created within the Department of Administration. A Chief
Technology Officer shall be appointed by and shall serve at the will and pleasure of the Governor.
The Chief Technology Officer shall have knowledge in the field of information technology,
experience in the design and management of information systems and an understanding of the special
demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability.
§5A-6-4. Powers and duties; professional staff.
(a) With respect to all state spending units the Chief Technology Officer may:
(1) Develop an organized approach to information resource management for this state;
(2) Provide, with the assistance of the Information Services and Communications Division
of the Department of Administration, technical assistance to the administrators of the various state
spending units in the design and management of information systems;
(3) Evaluate, in conjunction with the information services and communications division, the
economic justification, system design and suitability of information equipment and related services,
and review and make recommendations on the purchase, lease or acquisition of information
equipment and contracts for related services by the state spending units;
(4) Develop a mechanism for identifying those instances where systems of paper forms
should be replaced by direct use of information equipment and those instances where applicable state
or federal standards of accountability demand retention of some paper processes;
(5) Develop a mechanism for identifying those instances where information systems should
be linked and information shared, while providing for appropriate limitations on access and the
security of information;
(6) Create new technologies to be used in government, convene conferences and develop
incentive packages to encourage the utilization of technology;
(7) Engage in any other activities as directed by the Governor; and
(8) Charge a fee to the state spending units for evaluations performed and technical assistance
provided under the provisions of this section. All fees collected by the Chief Technology Officer
shall be deposited in a special account in the state treasury to be known as the 'Chief Technology
Officer Administration Fund'. Expenditures from the fund shall be made by the Chief Technology
Officer for the purposes set forth in this article and are not authorized from collections but are to be
made only in accordance with appropriation by the Legislature and in accordance with the provisions
of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in
article two, chapter eleven-b of this code. Amounts collected which are found 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.
(b) With respect to executive agencies, the Chief Technology Officer may:
(1) Develop a unified and integrated structure for information systems for all executive
agencies;
(2) Establish, based on need and opportunity, priorities and time lines for addressing the
information technology requirements of the various executive agencies of state government;
(3) Exercise the authority inherent to the chief executive of the state as the Governor may,
by executive order, delegate, to overrule and supersede decisions made by the administrators of the
various executive agencies of government with respect to the design and management of information
systems and the purchase, lease or acquisition of information equipment and contracts for related
services;
(4) Draw upon staff of other executive agencies for advice and assistance in the formulation
and implementation of administrative and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human resources from any
executive agency and the most effective and efficient uses of the fiscal resources of executive
agencies, to consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel necessary to carry out the work
of the Office of Technology and may approve reimbursement of costs incurred by employees to
obtain education and training.
§5A-6-5. Notice of request for proposals by state spending units required to make purchases
through the State Purchasing Division.
Any state spending unit that is required to submit a request for proposal to the State
Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer,
in writing, of any proposed purchase of goods or services related to its information and
telecommunication systems. The notice shall contain a brief description of the goods and services
to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer at
the same time it submits its request for proposal to the State Purchasing Division.
§5A-6-6. Notice of request for proposals by state spending units exempted from submitting
purchases to the State Purchasing Division.
(a) Any state spending unit that is not required to submit a request for proposal to the State
Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer,
in writing, of any proposed purchase of goods or services related to its information or
telecommunication systems. The notice shall contain a detailed description of the goods and services
to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer a
minimum of ten days prior to the time it requests bids on the provision of the goods or services.
(b) If the Chief Technology Officer evaluates the suitability of the information and
telecommunication equipment and related services under the provisions of subdivision (3),
subsection (a), section four of this article and determines that the goods or services to be purchased
are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit,
notify the state spending unit, in writing, of any recommendations he or she has regarding the
proposed purchase of the goods or services. If the state spending unit receives a written notice from
the Chief Technology Officer within the time period required by this section, the state spending unit
shall not put the goods or services out for bid less than fifteen days following receipt of the notice
from the Chief Technology Officer.
§5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the Legislative Joint Committee on
Government and Finance on the activities of his or her office.
§5A-6-8. Exemptions.
The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4. Powers and duties of division generally; professional staff; telephone service.
(a) The Division is responsible for providing technical services and assistance to the various
state spending units with respect to developing and improving data processing and
telecommunications functions. The Division may provide training and direct data processing
services to the various state agencies. The Division shall, upon request of the Chief Technology Officer, within the office of the governor provide technical assistance in evaluating the economic
justification, system design and suitability of equipment and systems used in state government. The
Director shall report to the Chief Technology Officer secretary.
(b) The Director is responsible for the development of personnel to carry out the technical
work of the Division and may approve reimbursement of costs incurred by employees to obtain
education and training.
(c) The Director may assess each state spending unit for the cost of any evaluation of the
economic justification, system design and suitability of equipment and systems used by the state
spending unit or any other technical assistance that is provided or performed by the Chief
Technology Officer and the Division under the provisions of section four, article one-b six of this
chapter.
(d) The Director shall transfer any moneys received as a result of the assessments that he or
she makes under subsection(c) of this section to the Office of chief Technology officer. The Director
shall report quarterly to the Joint Committee on Government and Finance on all assessments made
pursuant to subsection (c) of this section.
(e) The Director shall maintain an accounting system for all telephone service to the state.
(f) The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§5A-8-15. Records management and preservation of county records; alternate storage of
county records; Records Management and Preservation Board; qualifications
and appointment of members; reimbursement of expenses; staffing; rule-
making authority; study of records management needs of state agencies; grants
to counties.
The Legislature finds that the use of electronic technology and other procedures to manage
and preserve public records by counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of any unit of each a county, hereinafter
referred to as a county government entity, whether organized and existing under a charter or under
general law, shall promote the principles of efficient records management and preservation of local records. Such A county governing entity may, as far as practical, follow the program established for
the uniform management and preservation of county records as set out in a rule or rules proposed
for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of
this code as proposed by the Records Management and Preservation Board established herein.
(b) In the event any such governing body or the chief elected official of a unit of a county
government entity decides to destroy or otherwise dispose of a county record, the governing body
or such chief elected official county government entity may, prior to destruction or disposal thereof,
offer the record to the Director of the Section of Archives and History of the Division of Culture and
History for preservation of the record as a document of historical value. Unless authorized by the
Supreme Court of Appeals, the records of courts of record and magistrate courts are not affected by
the provisions of this section.
(c)(1) A preservation duplicate of a county government entity record may be stored in any
format, approved by the Board as hereinafter established, where in which the image of the original
record is preserved in a form, including CD-ROM and optical image storage media, in which the
image thereof is incapable of erasure or alteration and from which a reproduction of the stored record
may be retrieved which that truly and accurately depicts the image of the original county government
record.
(2) Except for those formats, processes and systems used for the storage of records on the
effective date of this section, no alternate format for the storage of county government entity records
described in this section is authorized for the storage of county government entity records unless the
particular format has been approved pursuant to a legislative rule promulgated by the Board as herein
created in accordance with the provisions of chapter twenty-nine-a of this code. The Board as herein
established may prohibit the use of any format, process or system used for the storage of records
upon its determination that the same is not reasonably adequate to preserve the records from
destruction, alteration or decay.
(3) Upon creation of a preservation duplicate which that stores an original county government
entity record in an approved format in which the image thereof that is incapable of erasure or
alteration and from which a reproduction of the stored record that may be retrieved which in a format that truly and accurately depicts the image of the original record, the county government entity may
destroy or otherwise dispose of the original in accordance with the provisions of section seven-c,
article one, chapter fifty-seven of this code.
(d) There is hereby created A Records Management and Preservation Board for county
government entities, is continued to be composed of nine members.
(1) Three members shall serve ex officio. One member shall be the Commissioner of the
Division of Culture and History or designee who shall be the chairman chair of the Board. One
member shall be the Administrator of the Supreme Court of Appeals or designee. One member shall
be the administrator of the governor's office of Chief Technology Officer or his or her designee.
(2) The Governor shall appoint six eight members of the Board with the advice and consent
of the Senate. Not more than five appointments to the Board may be from the same political party
and not more than three members may be appointed from the same congressional district. Of the six
eight members appointed by the Governor:
(i) Three Five appointments shall be county elected officials, one of whom shall be a clerk
of the a county commission, one of whom shall be a circuit court clerk and, one of whom shall be
a county commissioner, one of whom shall be a county sheriff, and one of whom shall be a county
assessor, to be selected from a list of nine fifteen names., including the names of three The names
of three clerks of county commissions and three circuit court clerks shall be submitted to the
Governor by the West Virginia Association of Counties. and the The names of three county
commissioners shall be submitted to the Governor jointly by the West Virginia Association of
Counties and the West Virginia County Commissioners Association. The names of three county
sheriffs shall be submitted to the Governor by the West Virginia Sheriff's Association. And the
names of three county assessors shall be submitted to the Governor by the Association of West
Virginia Assessors;
(ii) One appointment shall be a county prosecuting attorney to be selected from a list of three
names submitted by the West Virginia Prosecuting Attorneys Institute;
(iii) One appointment shall be an attorney licensed in West Virginia and in good standing as
a member of the West Virginia State Bar with experience in real estate and mineral title examination,
to be selected from a list of three names submitted by the State Bar; and
(iv) One appointment shall be a representative of a local historical or genealogical society.
(e) The members of the Board shall serve without compensation but shall be reimbursed for
all reasonable and necessary expenses actually incurred in the performance of their duties as
members of the Board in a manner consistent with the guidelines of the Travel Management Office
of the Department of Administration. In the event the expenses are paid, or are to be paid, by a third
party, the member shall not be reimbursed by the state.
(f) The staff of the Board shall consist of the Director of the Archives and History Section
of the Division of Culture and History and such any additional staff as he or she may designate to
assist him or her as needed.
(g) On or before the first day of July, two thousand one, the The Board shall propose rules
for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of
this code, to establish a system of records management and preservation for county governments:
Provided, That, for the retention and disposition of records of courts of record and magistrate courts,
the implementation of the rule is subject to action of by the West Virginia Supreme Court of Appeals
of West Virginia. The proposed rule or rules shall include provisions for establishing a program of
grants to county governments for making records management and preservation uniform throughout
the state. The Board is not authorized to propose or promulgate emergency rules under the provisions
of this section.
(h) On or before the first day of April, two thousand two, the Board, in cooperation with the
administrator and state executive agencies under the general authority of the Governor, shall conduct
a study of the records management and preservation needs of state executive agencies. Should the
Board determine a need for a uniform records management and preservation system for such
agencies, it shall recommend that the administrator propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for the implementation of a uniform records management and preservation system for state executive
agencies.
(i) In addition to the fees charged by the clerk of the county commission under the provisions
of section ten, article one, chapter fifty-nine of this code, the clerk shall charge and collect an
additional one-dollar fee for every document containing less than ten pages filed for recording and
an additional one-dollar fee for each additional ten pages of such document filed for recording. At
the end of each month, the clerk of the county commission shall deposit into the special Public
Records and Preservation Account as herein established in the State Treasury all fees collected:
Provided, That the clerk may retain not more than ten percent of such the fees for costs associated
with the collection of the fees. Clerks shall be responsible for accounting for the collection and
deposit in the State Treasury of all fees collected by such the clerk under the provisions of this
section.
(i) There is hereby created in the State Treasury a special account entitled the 'Public Records
and Preservation Revenue Account'. The account shall consist of all fees collected under the
provisions of this section, legislative appropriations, interest earned from fees, investments, gifts,
grants or contributions received by the Board. Expenditures from the account shall be for the
purposes set forth in this article and are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance with the provisions of article
three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two,
chapter five-a eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of
June, two thousand one, expenditures are authorized from collections rather than pursuant to an
appropriation by the Legislature.
(j) Subject to the above provision, the Board may expend the funds in the account to
implement the provisions of this article. In expending funds from the account, the Board shall
allocate not more than fifty percent of such the funds for grants to counties for records management,
access and preservation purposes. The Board shall provide for applications, set guidelines and
establish procedures for distributing grants to counties including a process for appealing an adverse decision on a grant application. Expenditures from the account shall be for the purposes set forth in
this section, including the cost of additional staff of the Division of Archives and History.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-2. Agencies, boards, commissions, divisions and offices comprising the Department of
Commerce.
The Department of Commerce consists of the following agencies, boards, commissions,
divisions and offices, including all of the allied, advisory, affiliated or related entities, which are
incorporated in and shall be administered as part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which
includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter
twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter
twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-
a of this code. The following boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review
Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter
twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this
code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the
Tourism Commission, provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article
one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code; and
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this
code; and
(7) The Bureau of Employment Programs provided in chapter twenty-one-a of this code.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION
SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative
rules.
(a) The Joint Commission on Economic Development may review any procedural rule,
interpretive rule or existing legislative rule and make recommendations concerning the rules to the
Legislature.
(b) The Development Office and the Tourism Commission established pursuant to article two
of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter
thirty-one of this code, the Bureau of Employment Programs established pursuant to article four,
chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to
article one, chapter twenty-three of this code, the Workforce Investment Commission established
pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and
development councils, West Virginia Rural Development Council, governor's Office of Technology
and West Virginia Clearinghouse for Workforce Education shall each file a copy of its legislative
rules with the commission as provided for in this section. Each agency that proposes legislative rules
in accordance to the provisions of article three, three-a or three-b, chapter twenty-nine-a of this code
relating to economic development or workforce development shall file the rules with the Joint
Commission at the time the rules are filed with the Secretary of State prior to the public comment
period or public hearing required in said chapter.
§5B-3-5. Joint Commission on Economic Development Studies.
(a) The Joint Commission on Economic Development shall study the following:
(1) The feasibility of establishing common regional configurations for such purposes as local
workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between
state and local economic developers, complete an analysis of possible regional configurations and
outline examples of other successful regional systems or networks found throughout the world. If
the study determines that the common regional configurations are feasible, the Commission shall
recommend legislation establishing common regional designations for all feasible purposes the
commission considers feasible. In making the designation of regional areas, the study shall take into
consideration, but not be limited to, the following:
(A) Geographic areas served by local educational agencies and intermediate educational
agencies;
(B) Geographic areas served by post-secondary educational institutions and area vocational
education schools;
(C) The extent to which the local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in the local
areas; and
(E) The resources of the local areas that are available to effectively administer the activities
or programs;
(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses,
especially technology-intensive companies; and
(3) A comprehensive review of West Virginia's existing economic and community
development resources and the recommendation of an organizational structure, including, but not
limited to, the reorganization of the Bureau Department of Commerce and the Development Office
that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and efficient manner the studies required
in this article, it is necessary for the Joint Commission to assemble and compile a tremendous
amount of information. The Development Office will assist the Joint Commission in the collection
and analysis of this information. The Tourism Commission established pursuant to article two of this
chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-
one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article
one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant
to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and
development councils, West Virginia Rural Development Council, governor's Office of Technology
and West Virginia Clearinghouse for Workforce Education all shall provide a copy of the agency's
their annual report reports as submitted to the Governor in accordance with the requirements set forth
in section twenty, article one, chapter five of this code to the West Virginia Development Office. The
Development Office shall review, analyze and summarize the data contained in the reports, including
its own annual report, and annually submit its findings to the Joint Commission on or before the
thirty-first day of December.
(c) The Legislative Auditor shall provide to the Joint Commission a copy of any and all
reports on agencies listed in subsection (b) of this section, which are required under article ten,
chapter four of this code.
(d) The Joint Commission shall complete the studies set forth in this section and any other
studies the Joint Commission determines to undertake prior to the first day of December of each year
and may make recommendations, including recommended legislation for introduction during the
regular session of the
Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency and Public Employees Insurance Agency Advisory
Board provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided for in article five, chapter five-a of
this code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this
code;
(5) Education and State Employees Grievance Board provided for in article twenty-nine,
chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
(6) Board of Risk and Insurance Management provided for in article twelve, chapter twenty-
nine of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this
code; and
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this
code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Commerce:
(1)Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter
twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter
twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-
a of this code. The following boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review
Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter
twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this
code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the
Tourism Commission provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article
one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code; and
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this
code; and
(7) The Bureau of Employment Programs provided in chapter twenty-one-a of this code.
(c) The Economic Development Authority provided for in article fifteen, chapter thirty-one
of this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and Board provided in article one, chapter twenty-
two-c of this code is continued as an independent agency within the executive branch.
(e) Bureau of employment programs provided in article one, chapter twenty-one-a of this
code is continued as an independent agency within the executive branch.
(f)
Workers' Compensation Commission provided in article one, chapter twenty-three of
this code is continued as an independent agency within the executive branch.
(g)
(f) Bureau of Environment is abolished and the The following agencies and boards,
including all of the allied, advisory, and affiliated or related entities and funds associated with any
agency or board, are transferred to incorporated in and administered as part of the Department of
Environmental Protection for purposes of administrative support and liaison with the Office of the
Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this
code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter
twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c
of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this
code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of
this code.
(h)
(g) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one, chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section two, article ten-a, chapter eighteen
of this code.
(i)
(h) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided for in article eleven, chapter five of this code;
(2) Division of Human Services provided for in article two, chapter nine of this code;
(3) Bureau for Public Health provided for in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council thereto provided for in
article four-c, chapter sixteen of this code;
(5) Health Care Authority provided for in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided for in article fifteen, chapter twenty-nine
of this code;
(7) Women's Commission provided for in article twenty, chapter twenty-nine of this code;
and
(8) The Child Support Enforcement Division provided for in chapter forty-eight of this code.
(j)
(i) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided for in article one-a, chapter fifteen of this code;
(2) Armory Board provided for in article six, chapter fifteen of this code;
(3) Military Awards Board provided for in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided for in article two, chapter fifteen of this code;
(5) Office of Emergency Services Division of Homeland Security and Emergency
Management and Disaster Recovery Board provided for in article five, chapter fifteen of this code
and Emergency Response Commission provided for in article five-a of said chapter;
(6) Sheriffs' Bureau provided for in article eight, chapter fifteen of this code;
(7) Division of Corrections provided for in chapter twenty-five of this code;
(8) Fire Commission provided for in article three, chapter twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided for in article twenty, chapter
thirty-one of this code;
(10) Board of Probation and Parole provided for in article twelve, chapter sixty-two of this
code; and
(11) Division of Veterans' Affairs and Veterans' Council provided for in article one, chapter
nine-a of this code.
(k)
(j) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Revenue:
(1) Tax Division provided for in article one, chapter eleven of this code;
(2) Racing Commission provided for in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided for in article twenty-two,
chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided for in article two, chapter thirty-three of this
code;
(5) Office of Alcohol Beverage Control Commissioner provided for in article sixteen, chapter
eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided for in article three, chapter thirty-
one-a of this code;
(7) Lending and Credit Rate Board provided for in chapter forty-seven-a of this code;
(8) Division of Banking provided for in article two, chapter thirty-one-a of this code;
(9) The State Budget Office, formerly known as the Budget Section of the Finance Division,
Department of Administration, previously provided for in article two, chapter five-a of this code and
now provided for in article two of this chapter;
(10) The Municipal Bond Commission provided for in article three, chapter thirteen of this
code;
(11) The Office of Tax Appeals provided for in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided for in article five-a, chapter twenty-nine of this
code.
(l)
(k) The following agencies and boards, including all of the allied, advisory, affiliated
or related entities and funds associated with any agency or board, are transferred to and incorporated
in and administered as a part of the Department of Transportation:
(1) Division of Highways provided for in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided for in article sixteen-
a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided for in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided for in article two, chapter seventeen-b of this
code;
(5) Aeronautics Commission provided for in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided for in article eighteen, chapter twenty-nine of this code; and
(7) Port Authority provided for in article sixteen-b, chapter seventeen of this code.
(
m)
(l) Except for powers, authority and duties that have been delegated to the secretaries
of the departments by the provisions of section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and duties of each administrator and
agency are not affected by the enactment of this chapter.
(n)
(m) Except for powers, authority and duties that have been delegated to the secretaries
of the departments by the provisions of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications of members of the boards are not
affected by the enactment of this chapter. and All boards which that are appellate bodies or were
otherwise established to be are independent decision makers will shall not have their appellate or
independent decision-making status affected by the enactment of this chapter.
(o)
(n) Any department previously transferred to and incorporated in a department created
in section two, article one of this chapter by prior enactment of this section in chapter three, acts of
the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent
amendments means a division of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created in section two, article one of this
chapter, the reference means a division of the appropriate department and any reference to a division
of a department so transferred and incorporated means a section of the appropriate division of the
department.
(p)
(o) When an agency, board or commission is transferred under a bureau or agency other
than a department headed by a secretary pursuant to this section, that transfer is solely for purposes
of administrative support and liaison with the Office of the Governor, a department secretary or a
bureau. Nothing in this section extends the powers of department secretaries under section two of
this article to any person other than a department secretary and nothing limits or abridges the
statutory powers and duties of statutory commissioners or officers pursuant to this code.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each
department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary such employees as may be
necessary to carry out the functions of the secretary, which employees shall serve at the will and
pleasure of the secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and
economically, and develop goals, objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of
board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees,
other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the Governor, and transfer within
the department funds appropriated to the various agencies of the department which are not expended
due to cost savings resulting from the implementation of the provisions of this chapter: Provided,
That no more than twenty-five percent of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department: Provided, however, That no funds
may be transferred from a special revenue account, dedicated account, capital expenditure account
or any other account or funds specifically exempted by the Legislature from transfer, except that the
use of appropriations from the State Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose for which such the funds were
dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated
to such the agency, board or function in order to implement such consolidation. The authority to
transfer funds under this section shall expire on the thirtieth day of June, two thousand six five;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and
authorize the expenditure or obligating obligation of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make
expenditures or obligations of public funds under this provision shall not exceed or be interpreted
as authority to exceed the powers heretofore granted by the Legislature to the various commissioners,
directors or board members of the various departments, agencies or boards that comprise and are
incorporated into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or
dispose of any property of whatever kind or character as authorized by law: Provided, That the
powers granted to the secretary to lease, purchase, convey or dispose of such property shall not
exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to
the various commissioners, directors or board members of the various departments, agencies or
boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this
code, to implement and make effective the powers, authority and duties granted and imposed by the
provisions of this chapter, such promulgation to be in accordance with the provisions of chapter
twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two,
article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the
department,. Without which written consent, no proposal of for a rule shall have any force or effect;
(13) Delegate to administrators such the duties of the secretary as the secretary may deem
appropriate from time to time to facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise
prohibited by law.
(b) The secretaries of the departments hereby created shall engage in a comprehensive review
of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein,
including, but not limited to, the following:
(1) The elimination, reduction and restrictions in the use restriction of the state's vehicle or
other transportation fleet;
(2) The elimination, reduction and restrictions in the preparation restriction of state
government publications, including annual reports, informational materials and promotional
materials;
(3) The termination or rectification of terms contained in lease agreements between the state
and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual
basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing
procedures, including consideration of means by which domestic businesses may be assisted to
compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the
powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate
or be inconsistent with the provisions of any federal law or regulation, any federal-state program or
federally delegated program or jeopardize the approval, existence or funding of any such program
and the powers granted to the secretary shall be so construed.
(d) The layoff and recall rights of employees within the classified service of the state as
provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall
be limited to the organizational unit within the agency or board and within the occupational group
established by the classification and compensation plan for the classified service of the agency or
board in which the employee was employed prior to the agency or board's transfer or incorporation
into the department: Provided, That the employee shall possess the qualifications established for
the job class. The duration of recall rights provided in this subsection shall be limited to two years
or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code, or the
right of classified employees of the Board of Regents to the procedures and protections set forth in
article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any other provision of this code to the contrary, the secretary of each
department with authority over programs which are payors for prescription drugs, including but not
limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority, the Workers' Compensation Fund, state colleges and universities, public
hospitals, state or local institutions including nursing homes and veteran's homes, the Division of
Rehabilitation, public health departments, the Bureau of Medical Services and other programs that
are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article sixteen-d, chapter five of this code for the purpose of
purchasing prescription drugs for any program over which they have authority.
CHAPTER 10. PUBLIC LIBRARIES; PUBLIC RECREATION; ATHLETIC
ESTABLISHMENTS; MONUMENTS AND MEMORIALS; ROSTER OF
SERVICEMEN; EDUCATIONAL BROADCASTING AUTHORITY.
ARTICLE 5. EDUCATIONAL BROADCASTING AUTHORITY.
§10-5-2. West Virginia Educational Broadcasting Authority; members; organization;
officers; employees; meetings; expenses.
(a) The West Virginia Educational Broadcasting Authority, heretofore created, is hereby
continued as a public benefit corporation. It The Authority shall consist of eleven voting members,
who shall be residents of the state, of whom one shall be including the Governor or designee, the
State Superintendent of Schools, one shall be a member of the West Virginia Board of Education
to be selected by it annually, and one shall be a member of the university of West Virginia board of
trustees West Virginia Higher Education Policy Commission to be selected by it annually. and one
shall be a member of the board of directors of the state college system to be selected by it annually
The other seven members shall be appointed by the Governor by and with the advice and consent of the Senate for overlapping terms of seven years, one term expiring each year. except that the
appointment to fill the membership position for the term expiring in the year one thousand nine
hundred eighty-three, shall be for a term of six years Not less than one appointive member shall
come from each congressional district. Employees of noncommercial broadcasting stations in West
Virginia are not eligible for appointment to the Authority. The present members of the authority
shall continue to serve out the terms to which they were appointed. Any vacancy among the
appointive members shall be filled by the Governor by appointment for the unexpired term.
The chairperson and vice chairperson of the authority as of the effective date of this section
shall continue in their respective offices until their successors are elected. Thereafter, at its annual
meeting in each year the authority shall elect one of its members as chairperson and one as vice
chairperson. The authority is authorized to select an executive director and such other personnel as
may be necessary to perform its duties and to fix the compensation of such personnel to be paid out
of moneys appropriated for this purpose. The executive director shall keep a record of the
proceedings of the authority and shall perform such other duties as it may prescribe.
(b) The Governor or designee serves as chair. The Authority shall annually select one of its
public members as vice chair and shall appoint a secretary who need not be a member of the
Authority and who shall keep records of its proceedings.
(c) The Governor appoints an Executive Director of the Authority with the advice and
consent of the Senate. The Executive Director serves at the Governor's will and pleasure. The
Executive Director is responsible for managing and administering the daily functions of the
Authority and for performing all other functions necessary to the effective operation of the Authority.
The compensation of the Executive Director is annually fixed by the Governor. The Authority is
authorized to establish such office or offices as may be necessary for the proper performance of its
duties.
(d) The Authority shall hold an at least one annual meeting. and may meet at such other times
and places as may be necessary, such meetings to be held The time and place of the meetings shall
be established upon its own resolution or at the call of the chairperson of the Authority. The
members shall serve without compensation but may be reimbursed for actual expenses incident to the performance of their duties upon presentation to the chairperson of an itemized sworn statement
thereof all reasonable and necessary expenses actually incurred in the performance of their duties in
a manner consistent with the guidelines of the Travel Management Office of the Department of
Administration.
§10-5-5a. Advisory Committee on Journalistic and Editorial Integrity.
(a) The Authority shall appoint an Advisory Committee on Journalistic and Editorial
Integrity, which shall consist of five qualified members to serve staggered terms of three years. The
Advisory Committee shall annually elect a chair, vice chair and secretary.
(b) The Advisory Committee shall advise the Authority on issues related to the journalistic
independence and editorial integrity of public education and public broadcasting stations, which have
the same constitutional protections as other journalistic enterprises in West Virginia.
CHAPTER 11. TAXATION.
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§11-10A-6. Chief Administrative Law Judge; appointment, term and
vacancy; qualifications; compensation; conflicts of interest prohibited;
removal.
(a) The Governor, with the advice and consent of the Senate, shall appoint the Chief
Administrative Law Judge from a list of three qualified nominees submitted to the Governor by the
Board of Governors of the West Virginia State Bar for a six four-year term. An appointment to fill
a vacancy in the position shall be for the unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge shall be a citizen of the United
States and a resident of this state who is admitted to the practice of law in this state and who has five
years of full-time or equivalent part-time experience as an attorney with federal or state tax law
expertise or as a judge of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be set by the Secretary of the
Department of Tax and Revenue created in section two, article one, chapter five-f of this code. The
salary shall be within the salary range for comparable chief administrative law judges as determined by the State Personnel Board created by section six, article six, chapter twenty-nine of this code.
(d) The Chief Administrative Law Judge, during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or
entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph
may be construed to prohibit the Chief Administrative Law Judge from being a member of a
national, state or local bar association or committee, or of any other similar type group or
organization, or to prohibit the Chief Administrative Law Judge from engaging in the practice of law
by representing himself, herself or his or her immediate family in their personal affairs in matters not
subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or
inconsistent with his or her duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected public office or any other
position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of
any political party.
(e) The Governor may remove the Chief Administrative Law Judge only for incompetence,
neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall
be in the same manner as that specified for removal of elected state officials in section six, article
six, chapter six of this code.
§11-10A-7. Powers and duties of Chief Administrative Law Judge; all employees, except Chief
Administrative Law Judge, members of classified service; qualifications of
administrative law judges.
(a) The Chief Administrative Law Judge is the chief executive officer of the Office of Tax
Appeals and he or she may employ up to two administrative law judges, no more than one person
to serve as executive director, no more than one staff attorney and other clerical personnel as
necessary for the proper administration of this article. The Chief Administrative Law Judge may delegate administrative duties to other employees, but the Chief Administrative Law Judge shall be
responsible for all official delegated acts.
(1) Upon the request of the Chief Administrative Law Judge, the Governor may appoint up
to two administrative law judges as necessary for the proper administration of this article.
(1)(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law
Judge, shall be in the classified service and shall be governed by the provisions of the statutes, rules
and policies of the classified service in accordance with the provisions of article six, chapter twenty-
nine of this code.
(2)(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall
be admitted to the practice of law in this state and have at least two years of full-time or equivalent
part-time experience as an attorney with federal or state tax law expertise.
(3)(4) The Chief Administrative Law Judge and all administrative law judges shall be
members of the public employees retirement system and do not qualify as participants in the judicial
retirement system during their tenure with the Office of Tax Appeals.
(4) Notwithstanding any provisions of this code to the contrary, the Chief Administrative
Law Judge shall employ any person not a temporary or probationary employee employed full-time
and in good standing by the Tax Division in its hearings office applying for a position with the
Office of Tax Appeals. A former Tax Division employee employed by the Office of Tax Appeals
under the provisions of this subdivision shall retain his or her classified service classification, salary
and benefits: Provided, That if an employee is currently classified as a chief administrative law
judge, he or she may not retain that classification and must be reclassified as determined by the
Secretary of the Department of tax and Revenue.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges as to legal accuracy, clarity
and other requirements;
(5) Publish decisions in accordance with the provisions of section sixteen of this article;
(6) Submit to the Legislature, on or before the fifteenth day of February, an annual report
summarizing the Office of Tax Appeals' activities since the end of the last report period, including
a statement of the number and type of matters handled by the Office of Tax Appeals during the
preceding fiscal year and the number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out the purposes of this article.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND
TOURISM AUTHORITY.
§17-16A-3. West Virginia Parkways, Economic Development and Tourism Authority
generally.
On and after the first day of June, one thousand nine hundred eighty-nine, the West Virginia
turnpike commission is hereby abolished in all respects, and there is hereby created the 'West
Virginia Parkways, Economic Development and Tourism Authority', and by that name the parkways
authority may sue and be sued and plead and be impleaded. The parkways authority is hereby
constituted
(a) The West Virginia Parkways, Economic Development and Tourism Authority is
continued as an agency of the state, and the exercise by the Parkways Authority of the powers
conferred by this article in the construction, reconstruction, improvement, operation and maintenance
of parkway, economic development and tourism projects shall be deemed and held to be an essential
governmental function of the state.
(b) The West Virginia Parkways, Economic Development and Tourism Authority shall
consist of seven members, including the Governor or designee, the Transportation Secretary, who
shall serve as chairman of the parkways authority, and six and five public members, including no less
than one from each of the counties which have land bordering parkway projects, appointed by the
Governor, by and with the advice and consent of the Senate. The appointed members shall be
residents of the state and shall have been qualified electors therein for a period of at least one year
next preceding their appointment. Upon the effective date of this legislation, the governor shall forthwith appoint six members of the parkways authority for staggered terms. The terms of the
parkways authority members first taking office on or after the effective date of this legislation shall
expire as designated by the governor at the time of the nomination, one at the end of the first year,
one at the end of the second year, one at the end of the third year, one at the end of the fifth year, one
at the end of the sixth year and one at the end of the seventh year, after the first day of June, one
thousand nine hundred eighty-nine. As these original appointments expire, each subsequent
appointment shall be for a full eight-year term. Public members are appointed for eight-year terms,
which are staggered in accordance with the initial appointments under prior enactment of this
section. Any member whose term has expired shall serve until his or her successor has been duly
appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired
term. Any member shall be eligible for reappointment. The term of any person serving as a member
of the West Virginia turnpike commission immediately preceding the effective date of this
legislation shall cease and otherwise expire upon such effective date: Provided, That any such
member shall be eligible for reappointment. Each appointed member of the Parkways Authority
before entering upon his or her duties shall take an oath as provided by section five, article IV of the
constitution of the state of West Virginia.
(b) The parkways The Governor or designee shall serve as chair and the Authority shall
annually elect one of the appointed members as vice chairman chair, and shall also elect a secretary
and treasurer who need not be members of the Parkways Authority.
(c) The Governor appoints an Executive Director of the Authority with the advice and
consent of the Senate. The Executive Director serves at the Governor's will and pleasure. The
Executive Director is responsible for managing and administering the daily functions of the
Authority and for performing all other functions necessary to the effective operation of the Authority.
The compensation of the Executive Director is annually fixed by the Governor.
(d) Four members of the Parkways Authority shall constitute a quorum and the vote of a
majority of members present shall be necessary for any action taken by the Parkways Authority. No
vacancy in the membership of the Parkways Authority shall impair the right of a quorum to exercise
all the rights and perform all the duties of the Parkways Authority. The Parkways Authority shall meet at least monthly and either the chairman chair or any four members shall be empowered to call
special meetings for any purpose or purposes: Provided, That notice of any such meeting shall be
given to all members of the Parkways Authority not less than ten days prior to said special meetings.
(e) Before the issuance of any parkway revenue bonds or revenue refunding bonds under the
provisions of this article, each appointed member of the Parkways Authority shall execute a surety
bond in the penal sum of twenty-five thousand dollars and the secretary and treasurer shall execute
a surety bond in the penal sum of fifty thousand dollars, each such surety bond to be conditioned
upon the faithful performance of the duties of his or her office, to be executed by a surety company
authorized to transact business in the state of West Virginia as surety and to be approved by the
Governor and filed in the Office of the Secretary of State.
(f) The members of the Parkways Authority shall not be entitled to compensation for their
services, but each member shall be reimbursed for his or her actual expenses necessarily incurred
in the performance of his or her duties shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(g) All expenses incurred in carrying out the provisions of this article shall be payable solely
from funds provided under the authority of this article and no liability or obligation shall be incurred
by the Parkways Authority hereunder beyond the extent to which moneys shall have been provided
under the authority of this article.
(h) Pursuant to the provisions of article ten, chapter four of this code, the West Virginia
Parkways, Economic Development and Tourism Authority shall continue to exist until the first day
of July, two thousand five seven.
§17-16A-10. Parkway revenue bonds generally.
(a) The Parkways Authority is hereby authorized to provide by resolution, at one time or from
time to time, for the issuance of parkway revenue bonds of the state for the purpose of paying all or
any part of the cost of one or more projects: Provided, That this section shall not be construed as
authorizing the issuance of parkway revenue bonds for the purpose of paying the cost of the West
Virginia Turnpike, which parkway revenue bonds may be issued only as authorized under section eleven of this article. The principal of and the interest on such bonds shall be payable solely from
the funds herein provided for such payment.
(b) The bonds of each issue shall be dated, shall bear interest at such a rate or rates as may
be determined by the Parkways Authority in its sole discretion, shall mature at such a time or times
not exceeding forty years from their date or dates, of issue as may be determined by the Parkways
Authority, and may be made redeemable before maturity, at the option of the Parkways Authority,
at such a price or prices and under such the terms and conditions as may be fixed by the Parkways
Authority prior to the issuance of the bonds.
(c) The Parkways Authority shall determine the form of the bonds, including any interest
coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and
the place or places of payment of principal and interest, which may be at any bank or trust company
within or without the state.
(d) The bonds shall be executed by manual or facsimile signature by the governor and by the
chairman chair of the Parkways Authority, and the official seal of the Parkways Authority shall be
affixed to or printed on each bond, and attested, manually or by facsimile signature, by the secretary
and treasurer of the Parkways Authority, and any . Any coupons attached to any bond shall bear the
manual or facsimile signature of the chairman chair of the Parkways Authority.
(e) In case any officer whose signature or a facsimile of whose signature appears on any
bonds or coupons shall cease to be such an officer before the delivery of such the bonds, such the
signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had
remained in office until such delivery; and, in . In case the seal of the Parkways Authority has been
changed after a facsimile has been imprinted on such the bonds, such then the facsimile seal will
continue to be sufficient for all purposes.
(f) All bonds issued under the provisions of this article shall have and are hereby declared
to have all the qualities and incidents of negotiable instruments under the negotiable instruments law
of the state. The bonds may be issued in coupon or in registered form, or both, as the Parkways
Authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the recorders into coupon bonds
of any bonds registered as to both principal and interest.
(g) The Parkways Authority may sell such the bonds in such manner, either at a public or at
private sale, and for such at a price, as it may determine determines to be in the best interests of the
state.
(h) The proceeds of the bonds of each issue shall be used solely for the payment of the cost
of the parkway project or projects for which such the bonds shall have been were issued, and shall
be disbursed in such a manner and under such restrictions, if any, as the Parkways Authority may
provide in consistent with the resolution authorizing the issuance of such the bonds or in the trust
agreement hereinafter mentioned securing the same bonds.
(i) If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less
than such the cost, then additional bonds may in like manner be issued to provide the amount of such
the deficit., and, unless Unless otherwise provided in the resolution authorizing the issuance of such
the bonds or in the trust agreement securing the same bonds, the additional bonds shall be deemed
to be of the same issue and shall be entitled to payment from the same fund without preference or
priority of the bonds first issued.
(j) If the proceeds of the bonds of any issue shall exceed the cost of the project or projects
for which the same shall have been bonds were issued, then the surplus shall be deposited to the
credit of the sinking fund for such the bonds.
(k) Prior to the preparation of definitive bonds, the Parkways Authority may, under like
restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for
definitive bonds when such the bonds shall have been executed and are available for delivery. The
Parkways Authority may also provide for the replacement of any bonds which shall that become
mutilated or shall be are destroyed or lost.
(l) Bonds may be issued under the provisions of this article without obtaining the consent of
any department, division, commission, board, bureau or agency of the state, and without any other
proceedings or the happening of any other conditions or things than those proceedings, conditions
or things which are specifically required by in accordance with this article.
CHAPTER 49. CHILD WELFARE.
ARTICLE 9. MISSING CHILDREN INFORMATION ACT.
§49-9-15. Clearinghouse Advisory Council; members, appointments and expenses;
appointment, duties and compensation of director.
(a) There is hereby created a The Clearinghouse Advisory Council, which is continued as a
body corporate and politic, constituting a public corporation and government instrumentality. The
Council shall consist of eleven members, who are knowledgeable about and interested in issues
relating to missing or exploited children, as follows:
(1) Four Six members to be appointed by the Governor, with the advice and consent of the
Senate, with not more than two four belonging to the same political party, three being from different
congressional districts of the state and, as nearly as possible, providing broad state geographical
distribution of members of the Council, and at least one representing a nonprofit organization
involved with preventing the abduction, runaway or exploitation of children or locating missing
children;
(2) One person to be appointed by the governor, with the advice and consent of the Senate,
from a list of two persons recommended by the speaker of the House of Delegates;
(3) One member to be appointed by the governor, with the advice and consent of the Senate,
from a list of two persons recommended by the president of the Senate;
(4) (2) The Secretary of the Department of Health and Human Resources or his or her
designee;
(5) (3) The Superintendent of the West Virginia State Police or his or her designee;
(6) (4) The State Superintendent of Schools or his or her designee;
(7) (5) The Director of the Criminal Justice and Highway Safety Division or his or her
designee; and
(8) (6)
The Executive Director of the Governor's Cabinet on Children and Families.
(b) Not later than the first day of June, one thousand nine hundred ninety-seven, the The
Governor shall appoint the six appointed Council members for staggered terms. The terms of the
board members first taking office on or after the effective date of this legislation shall expire as designated by the Governor. at the time of their appointment, one at the end of the year, two at the
end of the second year, and two at the end of the third year. As the original appointments expire, each
Each subsequent appointment shall be for a full three-year term. Any appointed member whose term
is expired shall serve until a successor has been duly appointed and qualified. Any person appointed
to fill a vacancy shall serve only for the unexpired term. A member is eligible for only one
successive reappointment. In cases of any vacancy in the office of a member, such A vacancy shall
be filled by the Governor in the same manner as the original appointment was made.
(c) Members of the Council are not entitled to compensation for services performed as
members but are entitled to reimbursement for all reasonable and necessary expenses actually
incurred in the performance of their duties
in a manner consistent with the guidelines of the Travel
Management Office of the Department of Administration.
(d) A majority of serving members constitutes a quorum for the purpose of conducting
business. The chair of the Council shall be designated by the Governor from among the appointed
Council members who represent nonprofit organizations involved with preventing the abduction,
runaway or exploitation of children or locating missing children. The term of the chairman chair
shall run concurrently with his or her term of office as a member of the Council. The Council shall
conduct all meetings in accordance with the open governmental meetings law pursuant to article
nine-a, chapter six of this code.
(d) (e) The employee of the West Virginia State Police who is primarily responsible for the
clearinghouse established by section three of this article shall serve as the Executive Director of the
Council. He or she shall receive no additional compensation for service as the Executive Director
of the Council but shall be reimbursed for any reasonable and necessary expenses actually incurred
in the performance of his or her duties as Executive Director in a manner consistent with the
guidelines of the Travel Management Office of the Department of Administration
.
(e) (f)
The expenses of the Council members and the Executive Director shall be
reimbursed from funds provided by foundation grants, in-kind contributions or funds obtained
pursuant to subsection (b), section seventeen of this article.
(f) (g) The Executive Director shall provide or obtain information necessary to support the
administrative work of the Council and, to that end, may contract with one or more nonprofit
organizations or state agencies for research and administrative support.
(h) The Executive Director of the Council shall be available to the Governor and to the
Speaker of the House of Delegates and the President of the Senate to analyze and comment upon
proposed legislation and rules which relate to or materially affect missing or exploited children.
(g) (i) The Council shall prepare and publish an annual report of its activities and
accomplishments and submit it to the Governor and to the Legislature's Joint Committee on
Government and Finance on or before the fifteenth day of December of each year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2891-"A Bill to repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5,
§5-1B-6, §5-1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended; to amend said code
by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6,
§5A-6-7 and §5A-6-8; to amend and reenact §5A-7-4 of said code; to amend and reenact §5A-8-15
of said code; to amend and reenact §5B-1-2 of said code; to amend and reenact §5B-3-4 and §5B-3-5
of said code; to amend and reenact §5F-2-1 and §5F-2-2 of said code; to amend and reenact §10-5-2
of said code; to amend said code by adding thereto a new section, designated §10-5-5a; to amend and
reenact §11-10A-6 and §11-10A-7 of said code; to amend and reenact §17-16A-3 and §17-16A-10
of said code; to amend and reenact §21A-1-4 of said code; and to amend and reenact §49-9-15 of
said code, all relating to the reorganization of the executive branch of state government; transferring
the Office of Technology from the Office of the Governor to the Department of Administration;
providing that the Director of Information Services and Communications Division shall report to the
Chief Technology Officer; providing that the Director of Information Services and Communications
Division shall develop and maintain an information systems disaster recovery system; modifying
membership of the Records Management and Preservation Board to include a county sheriff and a
county assessor; limiting the time period for department secretaries to transfer funds within their
respective departments; requiring secretaries of departments to cooperate with the Office of the Pharmaceutical Advocate in purchasing prescription drugs; transferring the Bureau of Employment
Programs to the Department of Commerce; modifying membership of the Educational Broadcasting
Authority; providing for Governor to chair the Educational Broadcasting Authority
; authorizing the
Governor to appoint an Executive Director of the Educational Broadcasting Authority and set salary
annually; creating an Advisory Committee on Journalistic and Editorial Integrity for the Educational
Broadcasting Authority; modifying the term of the chief administrative law judge of the Office of
Tax Appeals; providing that the Governor has the authority to appoint two administrative law judges
to the Office of Tax Appeals; providing for Governor to chair the West Virginia Parkways,
Economic Development and Tourism Authority; authorizing the Governor to appoint an Executive
Director of the Virginia Parkways, Economic Development and Tourism Authority and set salary
annually; modifying membership of the Missing Children Information Clearinghouse; and making
technical corrections."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
with amendment, as follows:
On page one, by amending the enacting section to read as follows:
"That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the
Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto
a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and
§5A-6-8; that §5A-7-4 of said code be amended and reenacted; that §5A-8-15 of said code be
amended and reenacted; that §5B-1-2 of said code be amended and reenacted; that §5B-3-4 and §5B-
3-5 of said code be amended and reenacted; that §5F-2-1 and §5F-2-2 of said code be amended and
reenacted; that §10-5-2 of said code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §10-5-5a; that §11-10A-6 and §11-10A-7 of said code be amended
and reenacted; that §17-16A-3 and §17-16A-10 of said code be amended and reenacted; and that
§49-9-15 of said code be amended and reenacted, all to read as follows" and a colon.
Beginning on page twenty-four, §5F-2-1, by striking out all of subsection (f) and inserting
in lieu thereof the following:
"(g) (f) Bureau of environment is abolished and the The following agencies and boards,
including all of the allied, advisory and affiliated entities, are transferred to the department of
environmental protection for purposes of administrative support and liaison with the office of the
governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this
code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter
twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c
of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this
code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of
this code."
On page thirty-eight, subsection (b), line fourteen, at the beginning of the subsection, by
inserting the words "As of the effective date of the reenactment of this section during the Regular
Session of 2005,".
On page thirty-eight, subsection (b), line fourteen, after the word "chair", by striking out the
period and inserting in lieu thereof a comma and the words "for a term not to exceed four years
unless extended by act of the Legislature. Thereafter the Authority shall select the chair.".
On page thirty-eight, subsection (c), beginning on line eighteen, by striking out said
subsection (c) in its entirety and inserting in lieu thereof the following:
"(c) As of the effective date of the reenactment of this section during the Regular Session of
2005, the Governor shall appoint an Executive Director, at a salary fixed by the Governor, to serve
for a term not to exceed four years unless extended by act of the Legislature. Thereafter the
Authority shall appoint the Executive Director and fix his or her salary. The Executive Director is responsible for managing and administering the daily functions of the Authority and for performing
all other functions necessary to the effective operation of the Authority. The Authority is authorized
to establish such office or offices as may be necessary for the proper performance of its duties."
And,
By amending the title of the bill to read as follows:
H. B. 2891-"A Bill to repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-
1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended; to amend said code by adding
thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7
and §5A-6-8; to amend and reenact §5A-7-4 of said code; to amend and reenact §5A-8-15 of said
code; to amend and reenact
§5B-1-2 of said code; to amend and reenact §5B-3-4 and §5B-3-5 of said
code; to amend and reenact §5F-2-1 and §5F-2-2 of said code; to amend and reenact §10-5-2; to
amend said code by adding thereto a new section, designated §10-5-5a; to amend and reenact §11-
10A-6 and §11-10A-7 of said code; to amend and reenact §17-16A-3 and §17-16A-10 of said code;
and to amend and reenact §49-9-15 of said code, all relating to the reorganization of the executive
branch of state government; transferring the Office of Technology from the Office of the Governor
to the Department of Administration; providing that the Director of Information Services and
Communications Division shall report to the Chief Technology Officer; providing that the Director
of Information Services and Communications Division shall develop and maintain an information
systems disaster recovery system; modifying membership of the Records Management and
Preservation Board to include a county sheriff and a county assessor; limiting the time period for
department secretaries to transfer funds within their respective departments; requiring secretaries of
departments to cooperate with the Office of the Pharmaceutical Advocate in purchasing prescription
drugs; transferring the Bureau of Employment Programs to the Department of Commerce; providing
that the Governor will chair the Educational Broadcasting Authority for a limited term; providing
that the Governor will appoint to Executive Director of the Educational Broadcasting Authority to
serve for a limited term; modifying the term of the chief administrative law judge of the Office of
Tax Appeals; providing that the Governor has the authority to appoint two administrative law judges
to the Office of Tax Appeals; providing for Governor to chair the West Virginia Parkways, Economic Development and Tourism Authority; authorizing the Governor to appoint an Executive
Director of the Virginia Parkways, Economic Development and Tourism Authority and set salary
annually; modifying membership of the Missing Children Information Clearinghouse; and making
technical corrections."
On the adoption of the amendment, Delegate Varner demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 677), and there were--yeas
69, nays 31, absent and not voting none, with the nays being as follows:
Nays: Argento, Ashley, Barker, Brown, DeLong, Doyle, Eldridge, Frich, Hatfield, Hrutkay,
Hunt, Iaquinta, Leggett, Martin, Miley, Perdue, Poling, Rowan, Sobonya, Spencer, Stephens,
Stevens, Susman, Tabb, Talbott, Thompson, Rick, Walters, Webster, Wells, Wysong and Yost.
So, a majority of the members present and voting having voted in the affirmative, the
amendment to the Senate amendment was adopted.
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 678), and there were--yeas
85, nays 15, absent and not voting none, with the nays being as follows:
Nays: Barker, Brown, Doyle, Eldridge, Frich, Hatfield, Hrutkay, Hunt, Miley, Palumbo,
Sobonya, Spencer, Susman, Walters and Wells.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2891) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 679), and there were--yeas 92, nays
8, absent and not voting none, with the nays being as follows:
Nays: Barker, Brown, Frich, Hatfield, Hrutkay, Susman, Walters and Wells.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2891) 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 amendment, a bill of
the House of Delegates as follows:
H. B. 2984, Discontinuing the loan program participation of teachers and nonteachers who
become members of the Teachers Retirement System on or after July 1, 2005.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page ten, by striking everything after the enacting clause and inserting in lieu thereof the
following:
"That §5-5-3 of the Code of West Virginia, 1931, as amended be amended and reenacted;
that §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and
§5-10-44 of said code be amended and reenacted; that said code be further amended by adding
thereto a new section, designated §5-10-22h; that §5-10A-2 and §5-10A-3 of said code be amended
and reenacted; that said code be further amended by adding thereto a new section, designated §5-
10A-11; that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code be amended and
reenacted; that §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said
code be amended and reenacted; that said code be further amended by adding thereto a new section
§12-8-15; that §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32,
§15-2-33, §15-2-34 and §15-2-37 of said code be amended and reenacted; that said code be further
amended and reenacted by adding thereto four new section, designated §15-2-25b, §15-2-31a, §15-2-
31b and §15-2-39a; that §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-
10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 be amended and reenacted; that
said code be further amended by adding thereto four new sections designated §15-2A-11a, §15-2A-
11b, §15-2A-21 and §15-2A-22; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7A-23a, §18-7A-25,
§18-7A-26 and §18-7A-34 of said code be amended and reenacted; that said code be further
amended by adding thereto three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40; that §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of code be amended
and reenacted; that said code be further amended and reenacted by adding thereto two new sections,
designated §18-7B-7a and §18-7B-20; that said code be further amended by adding thereto a new
article containing §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-
7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and that said code
be further amended by adding thereto a new section designated §51-9-6c, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-3. Optional payment to employee in lump sum amount for accrued and unused l
eave at
termination of employment; no withholding of any employee contribution
deduction; exception.
Every eligible employee, as defined in section one of this article, at the time his or her active
employment ends due to resignation, death, retirement or otherwise, may be paid in a lump sum
amount, at his or her option, for accrued and unused annual leave at the employee's usual rate of pay
at such the time. The lump sum payment shall be made by the time of what would have been the
employee's next regular payday had his or her employment continued. In determining the amount
of annual leave entitlement, weekends, holidays or other periods of normal, noncountable time shall
be excluded, and no deductions may be made for contributions toward retirement from lump sum
payments for unused, accrued annual leave of any kind or character, since no period of service credit
is granted in relation thereto; however, such lump sum payment for unused, accrued leave of any
kind or character may not be a part of final average salary computation; and where any such
deduction of employee contribution may have been heretofore made previously, a refund of such the
amount deducted shall be granted the former employee and made by the head of the respective
former employer spending unit: Provided, That the Superintendent of the department of public
safety West Virginia State Police shall make deductions for retirement contributions of members of the department State Police Death, Disability and Retirement Fund created and continued in section
twenty-six, article two, chapter fifteen of this code since retirement benefits are based on cumulative
earnings rather than period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§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 d 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, rounding to 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
Consolidated Public Retirement System;
(8) 'Compensation' means the remuneration paid a member by a participating public
employer for personal services rendered by the member 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 the 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;
(10) 'Credited service' means the sum of a member's prior service credit, military service
credit, workers' compensation 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 an employee of the Legislature whose term of 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 employed during
regular sessions or during the interim between regular sessions in seven or more consecutive
calendar years, as certified by the Clerk of the House in which the employee served, is an employee,
any provision to the contrary in this article notwithstanding, and is entitled to credited service in
accordance with provisions of section fourteen, article ten, chapter five of this code, and: Provided
further, That members of the legislative body of any political subdivision and judges of the State
Court of Claims are employees receiving one year of service credit for each one year term served and
pro rated service credit for any partial term served, 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;
(12) 'Employer error' means an omission, misrepresentation, or violation of relevant
provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the
relevant provisions of both the West Virginia Code and of the 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 does 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 credited service
contained within the member's ten years of credited service immediately preceding the date his or
her employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited service, the average of the annual rate
of compensation received by the member 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);
(14) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended,
codified at Title 26 of the United States Code;
(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 has accumulated contributions standing to his or her
credit in the members' deposit fund;
(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 years of
age; or (B) the calendar year in which a member who has attained the age seventy and one-half years
of age and who ceases providing service covered under this system to a participating employer;
(23) 'Retirant' means any member who commences an annuity payable by the retirement
system;
(24) 'Retirement' means a member's withdrawal from the employ of a participating public
employer and the commencement of an annuity 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: (1) Service between 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; (2) 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; and (3) 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 for 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 of a participating public employer; and
(28) 'State' means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this state who have served in the
Armed Forces of the United States during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are eligible at any time for public
employees retirement benefits for any time served in active duty in the Armed Forces of the United States when the duty was during any period of compulsory military service or during a period of
armed conflict, as defined in this section.
(2) In addition to any benefit provided by federal law, any member of the retirement system
who has previously served in or enters the active service of the Armed Forces of the United States
during any period of compulsory military service or during a period of armed conflict shall receive
credited service for the time spent in the Armed Forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence his or her active military service
and entry into military service during any period of compulsory military service or during periods
of armed conflict.
(3) Any member of the retirement system who enters the active service of the Armed Forces
of the United States during any period of compulsory military service or during a period of armed
conflict shall receive the credit provided by this section regardless of whether he or she was a public
employee at the time of entering the military service.
(4) If a member of the Public Employees Retirement System enters the active service of the
United States and serves during any period of compulsory military service or during any period of
armed conflict, during the period of the armed service and until the member's return to the employ
of a participating public employer, the member's contributions to the retirement system is suspended
and any credit balance remaining in the member's deposit fund shall be accumulated at regular
interest.
(5) No member may receive duplicate credit for service for a period of compulsory military
service which falls under a period of armed conflict.
(6) In any case of doubt as to the period of service to be credited a member under the
provisions of this section, the board of trustees have final power to determine the period.
(7) The Board is empowered to may consider a petition by any member whose tour of duty,
in a territory that would reasonably be considered hostile and dangerous, was extended beyond the
period in which an armed conflict was officially recognized, if that tour of duty commenced during a period of armed conflict, and the member was assigned to duty stations within the hostile territory
throughout the period for which service credit is being sought. The Board has the authority to
evaluate the facts and circumstances peculiar to the petition, and rule on whether granting service
credit for the extended tour of duty is consistent with the objectives of this article. In that
determination, the Board is empowered to may grant full credit for the period under petition subject
to the limitations otherwise applicable, or to grant credit for any part of the period as the board
considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for promulgation in accordance with
the provisions of article three, chapter twenty-nine-a of this code to administer the provisions of this
section.
(b) For purposes of this section, the following definitions apply:
(1) 'Period of armed conflict' means the Spanish-American War, the Mexican border period,
World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War and any
other period of armed conflict by the United States, including, but not limited to, those periods
sanctioned by a declaration of war by the United States Congress or by executive or other order of
the President.
(2) 'Spanish-American War' means the period beginning on the twenty-first day of April, one
thousand eight hundred ninety-eight, and ending on the fourth day of July, one thousand nine
hundred two, and includes the Philippine Insurrection, the Boxer Rebellion, and in the case of a
veteran who served with the United States military forces engaged in hostilities in the Moro
Province, means the period beginning on the twenty-first day of April, one thousand eight hundred
ninety-eight, and ending on the fifteenth day of July, one thousand nine hundred three.
(3) 'The Mexican border period' means the period beginning on the ninth day of May, one
thousand nine hundred sixteen, and ending on the fifth day of April, one thousand nine hundred
seventeen, in the case of a veteran who during the period served in Mexico, on its borders or in the
waters adjacent to it.
(4) 'World War I' means the period beginning on the sixth day of April, one thousand nine
hundred seventeen, and ending on the eleventh day of November, one thousand nine hundred eighteen, and in the case of a veteran who served with the United States military forces in Russia,
means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and
ending on the first day of April, one thousand nine hundred twenty.
(5) 'World War II' means the period beginning on the seventh day of December, one
thousand nine hundred forty-one, and ending on the thirty-first day of December, one thousand nine
hundred forty-six.
(6) 'Korean conflict' means the period beginning on the twenty-seventh day of June, one
thousand nine hundred fifty, and ending on the thirty-first day of January, one thousand nine hundred
fifty-five.
(7) 'The Vietnam era' means the period beginning on the twenty-eighth day of February, one
thousand nine hundred sixty-one, and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic of Vietnam during that period; and
the fifth day of August, one thousand nine hundred sixty-four, and ending on the seventh day of May,
one thousand nine hundred seventy-five, in all other cases.
(8) 'Persian Gulf War' means the period beginning on the second day of August, one
thousand nine hundred ninety, and ending on the eleventh day of April, one thousand nine hundred
ninety-one.
(c) Notwithstanding the preceding provisions of this section, contributions, benefits and
service credit with respect to qualified military service shall be provided in accordance with Section
414(u) of the Internal Revenue Code. For purposes of this section, 'qualified military service' has
the same meaning as in Section 414(u) of the Internal Revenue Code. No military service credit may
be used in more than one retirement system administered by the Consolidated Public Retirement
Board and once used in any system, may not be used again in any other system. The retirement
Board is authorized to determine all questions and make all decisions relating to this section and,
pursuant to the authority granted to the retirement Board in section one, article ten-d of this chapter,
may promulgate rules relating to contributions, benefits and service credit to comply with Section
414(u) of the Internal Revenue Code.
§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 Public Employees Retirement System shall 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 any Retirement System of the Division of
Public Safety West Virginia State Police, the Deputy Sheriff Retirement System or any municipal
retirement system for either, or both, policemen police or firemen firefighter; 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 do 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 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 police or firemen
firefighter 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
police officer or fireman firefighter or as a member of the division of public safety State Police
Death, Disability and Retirement Fund, the West Virginia State Police Retirement System or of the
Deputy Sheriff Retirement System: Provided further, That any retired member of the 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, police or firefighters, who begins participation in the retirement system established
in this article on or after the first day of July, two thousand five, may not receive a combined
retirement benefit in excess of one hundred five percent of the member's highest annual salary
earned while either a member of the retirement system established in this article or while a member
of the other retirement system or systems from which he or she previously retired when adding the
retirement benefit from the retirement system created in this article to the retirement benefit received
by that member from the other retirement system or systems set forth herein from which he or she
previously retired: And 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 is 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 under this section, 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 is 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. The member's annuity shall begin
the first day of the calendar month immediately following the calendar month in which his or her
application for the annuity is filed with the Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article, he or she shall receive a straight
life annuity equal to one and five-tenths percent of his or her final average salary multiplied by the
number of years, and fraction of a year, of his or her credited service in force at the time of his or her retirement: Provided, That the final average salary used in this calculation does not include any
lump sum payment for unused, accrued leave of any kind or character. The credited service used for
this calculation may not include any period of limited credited service: Provided, however, That after
March one, one thousand nine hundred seventy, all members retired and all members retiring shall
receive a straight life annuity equal to two percent of his or her final average salary multiplied by the
number of years, and fraction of a year, of his or her credited service, exclusive of limited credited
service in force at the time of his or her retirement. In either event, upon his or her retirement he or
she has the right to elect an option provided for in section twenty-four of this article. All annuity
payments shall commence effective the first day of the month following the month in which a
member retires or a member dies leaving a beneficiary entitled to benefits and shall continue to the
end of the month in which the retirant or beneficiary dies, and the annuity payments may not be
prorated for any portion of a month in which a member retires or retirant or beneficiary dies. Any
member receiving an annuity based in part upon limited credited service is not eligible for the
supplements provided for in sections twenty-two-a through twenty-two-d, inclusive, of this article.
(b) The annuity of any member of the Legislature who participates in the retirement system
as a member of the Legislature and who retires under this article or of any former member of the
Legislature who has retired under this article (including any former member of the Legislature who
has retired under this article and whose annuity was readjusted as of the first day of March, one
thousand nine hundred seventy, under the former provisions of this section) shall be increased from
time to time during the period of his or her retirement when and if the legislative compensation paid
under section two, article two-a, chapter four of this code, to a member of the Legislature shall be
increased to the point where a higher annuity would be payable to the retirant if he or she were
retiring as of the effective date of the latest increase in such legislative compensation, but on the
basis of his or her years of credited service to the date of his or her actual retirement.
§5-10-22h. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or create any new benefits for any
retirees or beneficiaries currently receiving monthly benefit payments from the system, other than
an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability
of the system as of the last day of the preceding fiscal year as determined in the annual actuarial
valuation for each plan completed for the Consolidated Public Retirement Board as of the first day
of the following fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
causes any additional unfunded actuarial accrued liability in the system as calculated in the annual
actuarial valuation for each plan during any fiscal year, the additional unfunded actuarial accrued
liability of that pension system shall be fully amortized over no more than the five consecutive fiscal
years following the date the increase in benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount of the amortization payment each
year for the pension system as part of the annual budget submission or in an executive message to
the Legislature. The Consolidated Public Retirement Board shall include the five year amortization
in the determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active
members due to retirement, death or disability of the system unless the actuarial accrued liability of
the plan is at least 85% funded as of the last day of the prior fiscal year as determined in the actuarial
valuation for each plan completed for the Consolidated Public Retirement Board as of the first day
of the following fiscal year. Any additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized over not more than ten years
following the date the increase in benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include
the ten year amortization in the determination of the adequacy of the employer contribution
percentage for the system.
§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
the rights to benefits would be on the occasion 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, whichever occurs later.
(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 retired member has nominated 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.
§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 of this article, and at least once
in each three-year period thereafter, the Board of trustees may, and upon the retirant's application,
may 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, or to
submit a statement signed by the disability retirant's physician certifying continued disability, or
both, and a copy of the disability retirants's annual statement of earnings. Should If the said retirant
refuse refuses to submit to such the medical examination or provide the certification or statement
in any such period, his or her disability annuity may be discontinued by the Board until his
withdrawal of such refusal the retirant complies. Should such If the refusal continue continues 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 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 the Board concurs in 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 the retirant's credited service in force at
the time of his or her retirement shall be restored. to his 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. If a review of the disability retirant's annual
statement of earnings or other financial information as required by the Board determines that the
disability retirant's earned income for the preceding year exceeds the substantial gainful activity
amount as defined by the United States Social Security Administration, the disability retirant's
annuity shall be terminated by the Board, upon recommendation of the Board's disability review
committee, on the first day of the month following the Board's action. Any person who wishes to
reapply for disability retirement and whose disability retirement annuity has been terminated by the
Board may do so within ninety days of the effective date of termination by requesting an examination
at the applicant's expense by an appropriate medical professional chosen by the Board.
§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 a surviving 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 the disabled child as sole beneficiary, the disabled child
shall immediately receive an annuity computed in the same manner in all respects as if the 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 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 the 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. 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 are 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 the 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.
§5-10-31. Employers accumulation fund; employers contributions.
(a) The employers accumulation fund is hereby continued. It shall be the fund in which shall
be accumulated the contributions made by the participating public employers to the retirement
system, and from which transfers shall be made as provided in this section.
(b) Based upon the provisions of section thirteen of this article, the participating public
employers' contributions to the retirement system, as determined by the Consolidated Public Retirement Board by legislative rule promulgated in accordance with the provisions of article three,
chapter twenty-nine-a of this code, shall be a percent of the members' total annual compensation
related to benefits under this retirement system. In determining the amount, the Board shall give
consideration to setting the amount at a sum equal to an amount which, if paid annually by the
participating public employers, will be sufficient to provide for the total normal cost of the benefits
expected to become payable to all members and to amortize any unfunded liability found by
application of such the actuarial funding method as shall be chosen for such that purpose by the
Consolidated Public Retirement Board, over such a period of years as shall be deemed determined
actuarially appropriate. When proposing a rule for promulgation which relates to the amount of
employer contribution, the Board may promulgate emergency rules by emergency pursuant to the
provisions of article three, chapter twenty-nine-a of this code, if the inability of the board to increase
employer contributions will detrimentally affect the actuarial soundness of the retirement system.
A signed statement from the state actuary will shall accompany the statement of facts and
circumstances constituting an emergency which must shall be filed in the State Register. For
purposes of this section, subdivision (2), subsection (b), section fifteen-a, article three, chapter
twenty-nine-a of this code shall is not be applicable to the Secretary of State's determination of
whether an emergency rule should be approved.
In no year may the total of the contributions provided for in this section, to be paid by any
participating public employer, exceed ten and five-tenths percent of the total payroll for the members
in the employ of such participating public employer for the preceding fiscal year.
§5-10-44. Correction of errors.
Should If any change or employer error in the records of any participating public employer
or the retirement system result results in any person receiving from the system more or less than he
or she would have been entitled to receive had the records been correct, the Board of trustees shall
correct such the error, and as far as is practicable shall adjust the payment of the benefit in such a
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
the Legislative Rule 162 CSR 7 concerning retirement board refund, reinstatement and loan interest
factors, and any accumulating interest owed on the employee and employer contributions resulting
from the 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.
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
As used in this article:
(a) 'Retirement plan' or 'plan' means the Public Employees Retirement Act, pursuant to
article ten, chapter five of this code; each municipal employees retirement plan, pursuant to article
twenty-two, chapter eight of this code; each policemen's and firemen's pension and relief fund,
pursuant to article twenty-two, chapter eight of this code; the West Virginia State Police Death,
Disability and Retirement Fund of the West Virginia State Police, pursuant to article two, chapter
fifteen of this code; the West Virginia State Police Retirement System, pursuant to article two-a,
chapter fifteen of this code; the State Teachers Retirement System, pursuant to article seven-a,
chapter eighteen of this code; the Teachers' Defined Contribution Retirement System, pursuant to
article seven-b, chapter eighteen of this code; the Deputy Sheriff Retirement System, pursuant to
article fourteen-d, chapter seven of this code; supplemental and additional retirement plans, pursuant
to section four-a, article twenty-three, chapter eighteen of this code; the Judges' Retirement System,
pursuant to article nine, chapter fifty-one of this code; and any other plan established pursuant to this
code for the payment of pension, annuity, disability or other benefits to any person by reason of his
or her service as an officer or employee of this state or of any political subdivision, agency or
instrumentality thereof, whenever such the plan is supported in whole or in part by public funds.
(b) 'Beneficiary' means any person eligible for or receiving benefits on account of the service
for a public employer by a participant in a retirement plan.
(c) 'Benefits' means pension, annuity, disability or any other benefits granted pursuant to a
retirement plan.
(d) 'Conviction' means a conviction on or after the effective date of this article in any federal
or state court of record whether following a plea of guilty, not guilty or nolo contendere, and whether
or not the person convicted was serving as an officer or employee of a public employer at the time
of the conviction.
(e) 'Less than honorable service' means:
(1) Impeachment and conviction of a participant under the provisions of section nine, article
four of the Constitution of West Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct related to his or her office or
employment which he or she committed while holding such the office or during such the
employment; or
(3) Conduct of a participant which constitutes all of the elements of a crime described in
either of the foregoing subdivisions (1) or (2) but for which the participant was not convicted
because:
(i) Having been indicted or having been charged in an information for such the crime, he or
she made a plea bargaining agreement pursuant to which he or she pleaded guilty to or nolo
contendere to a lesser crime: Provided, That the lesser crime is a felony containing all the elements
described in subdivisions (1) or (2) of this subsection; or
(ii) Having been indicted or having been charged in an information for such the crime, he or
she was granted immunity from prosecution for the same; or crime.
(iii) Having been named as an unindicted coconspirator in an indictment of another person
for such a crime, which indictment resulted in the conviction of such other person, he or she was not
prosecuted for such crime or conspiracy therefor.
(f) 'Participant' means any person eligible for or receiving any benefit under a retirement plan
on account of his or her service as an officer or employee for a public employer.
(g) 'Public employer' means the State of West Virginia and any political subdivision, agency,
or instrumentality thereof for which there is established a retirement plan.
(h) 'Supervisory board' or 'Board' means the board of trustees of the West Virginia Public
Employees Retirement System Consolidated Public Retirement Board; the board of trustees of any
municipal retirement fund; the board of trustees of any policemen's or firemen's retirement plan; the
retirement board of the West Virginia State Police; the state treasurer, state auditor and one other
member of the board of public works so designated by the Governor to sit on the supervisory board
of the judges' retirement plan (who shall for the purpose of this article constitute the board); the
designated members of the state teachers retirement system established pursuant to section five,
article seven-a, chapter eighteen of this code; the governing board of any supplemental retirement
plan instituted pursuant to authority granted by section four-a, article twenty-three, chapter eighteen
of this code, and any other board, commission or public body having the duty to supervise and
operate any retirement plan
§5-10A-3. Notice of intention to terminate benefits; waiver; failure to reply.
(a) Whenever a supervisory board, upon receipt of a verified complaint or otherwise, has
reasonable cause to believe that a participant rendered less than honorable service as defined in
section two of this article, it shall notify the affected participant or beneficiary that it believes that
the participant rendered less than honorable service and that the participant or beneficiary is thereby
ineligible to receive benefits. No supervisory board shall may issue such a notice:
(1) If more than one year has two years have elapsed since the judgment of conviction upon
which such the notice is based became final; or
(2) In cases described in paragraph (3), subdivision subsection (e), section two of this article,
if more than one year has two years have elapsed since, as the case may be: the plea bargaining
agreement, or the grant of immunity, or, in the event the participant was named as an unindicted
coconspirator for a crime, the conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the effective date of this article.
(b) The notice shall contain a concise statement of the reasons why the Board believes that
the participant rendered less than honorable service and shall be made either by personal service or
by certified mail, return receipt requested, to the address which the participant or beneficiary
maintains for purposes of corresponding with the Board. If notice is made by certified mail, service shall be deemed considered complete upon mailing and a completed receipt shall constitute proof
proofs of the receipt thereof of the notice. The notice shall inform the participant or beneficiary that
he or she has the right to demand that the Board seek a determination in circuit court of his or her
eligibility for benefits and membership in the retirement plan by notifying the Board of such the
demand within forty days. The notice shall also inform the participant or beneficiary that the Board
will terminate the benefits in accordance with section four of this article and refund the participant's
contributions with interest less benefits previously paid as provided in section six thereof if the
participant or beneficiary either waives the right to demand that the Board take the matter before the
circuit court or fails to respond to the Board's notice within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorneys of the counties of this state shall, within sixty days of a conviction
or a plea agreement meeting the definition of less than honorable service, report the conviction or
plea agreement to the executive director of the Board, including with the report the indictment, plea
agreement and any order finding the defendant guilty.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered employment after the effective
date of this article shall be a member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the Board, so long as he or she remains
employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the effective date of this article
shall within six months of that effective date notify in writing both the county commission in the
county in which he or she is employed and the Board, of his or her desire to become a member of
the plan: Provided, That this time period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
Supreme Court of Appeals in West Virginia Deputy Sheriffs' Association, et al v. James L. Sims, et
al, No. 25212: Provided, however, That any deputy sheriff employed in covered employment on the effective date of this article has an additional time period consisting of the ten-day period following
the day after which the
amended provisions of this section become law to notify in writing both the county commission in
the county in which he or she is employed and the Board of his or her desire to become a member
of the plan. Any deputy sheriff who elects to become a member of the plan ceases to be a member
or have any credit for covered employment in any other retirement system administered by the Board
and shall continue to be ineligible for membership in any other retirement system administered by
the Board so long as the deputy sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the time period from the first day of July,
one thousand nine hundred ninety-eight, to the thirtieth day of January, one thousand nine hundred
ninety-nine, or who so elects during the ten-day time period occurring immediately following the day
after the day the amendments made during the one thousand nine hundred ninety-nine legislative
session become law, to transfer from the Public Employees Retirement System to the plan created
in this article shall contribute to the plan created in this article at the rate set forth in section seven
of this article retroactive to the first day of July, one thousand nine hundred ninety-eight. Any deputy
sheriff who does not affirmatively elect to become a member of the plan continues to be eligible for
any other retirement system as is from time to time offered to other county employees but is
ineligible for this plan regardless of any subsequent termination of employment and rehire.
(c) Any deputy sheriff employed in covered employment on the effective date of this article
who has timely elected to transfer into this plan as provided in subsection (b) of this section shall be
given credited service at the time of transfer for all credited service then standing to the deputy
sheriff's service credit in the Public Employees Retirement System regardless of whether the credited
service (as that term is defined in section two, article ten, chapter five of this code) was earned as
a deputy sheriff. All the credited service standing to the transferring deputy sheriff's credit in the
Public Employees Retirement Fund System at the time of transfer into this plan shall be transferred
into the plan created by this article, and the transferring deputy sheriff shall be given the same credit
for the purposes of this article for all service transferred from the Public Employees Retirement
System as that transferring deputy sheriff would have received from the Public Employees Retirement System as if the transfer had not occurred. In connection with each transferring deputy
sheriff receiving credit for prior employment as provided in this subsection, a transfer from the
Public Employees Retirement System to this plan shall be made pursuant to the procedures described
in section eight of this article: Provided, That a member of this plan who has elected to transfer from
the Public Employees Retirement System into this plan pursuant to subsection (b) of this section may
not, after having transferred into and become an active member of this plan, reinstate to his or her
credit in this plan any service credit relating to periods of nondeputy sheriff service which were
withdrawn from the Public Employees Retirement System prior to his or her elective transfer into
this plan.
(c) (d) Any deputy sheriff who was employed as a deputy sheriff prior to the effective date
of this article, but was not employed as a deputy sheriff on the effective date of this article, shall
become a member upon rehire as a deputy sheriff. For purposes of this section subsection, the
member's years of service and credited service in the Public Employees Retirement System prior to
the effective date of this article shall not be counted for any purposes under this plan unless: (1) The
deputy sheriff has not received the return of his or her accumulated contributions in the Public
Employees Retirement fund System pursuant to section thirty, article ten, chapter five of this code;
or (2) the accumulated contributions returned to the member from the Public Employees Retirement
System have been repaid pursuant to section thirteen of this article. If the conditions of subdivision
(1) or (2) of this subsection are met, all years of the deputy sheriff's covered employment shall be
counted as years of service for the purposes of this article. Each transferring deputy sheriff shall be
given credited service for the purposes of this article for all covered employment transferred from
the public employees retirement system regardless of whether the credited service (as that term is
defined in section two, article ten, chapter five of this code) was earned as a deputy sheriff. All
service in the public employees retirement system accrued by a transferring deputy sheriff shall be
transferred into the plan created by this article and the transferring deputy sheriff shall be given the
same credit for the purposes of this article for all covered service which is transferred from the public
employees retirement system as that transferring deputy sheriff would have received from the public
employees retirement system if the transfer had not occurred. In connection with each deputy sheriff receiving credit for prior employment provided in this subsection, a transfer from public employees
retirement system to this plan shall be made pursuant to the procedures described in section eight
of this article.
(d) (e) Once made, the election made under provided for in this section is irrevocable. All
deputy sheriffs first employed after the effective date and deputy sheriffs electing to become
members as described in this section shall be members as a condition of employment and shall make
the contributions required by section seven of this article.
(e) (f) Notwithstanding any other provisions of this article, any individual who is a leased
employee shall is not be eligible to participate in the plan. For purposes of this plan, a 'leased
employee' means any individual who performs services as an independent contractor or pursuant to
an agreement with an employee leasing organization or similar organization. If a question arises
regarding the status of an individual as a leased employee, the Board has final power to decide the
question.
§7-14D-7. Members' contributions; employer contributions.
(a) There shall be deducted from the monthly salary of each member and paid into the Fund
an amount equal to eight and one-half percent of his or her monthly salary. Any active member who
has concurrent employment in an additional job or jobs and the additional employment requires the
deputy sheriff to be a member of another retirement system which is administered by the
Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code shall
contribute to the fund the sum of eight and one-half percent of his or her monthly salary earned as
a deputy sheriff as well as the sum of eight and one-half percent of his or her monthly salary earned
from any additional employment which additional employment requires the deputy sheriff to be a
member of another retirement which is administered by the Consolidated Public Retirement Board
pursuant to article ten-d, chapter five of this code. An additional amount shall be paid to the Fund
by the county commission of the county in which the member is employed in covered employment
in an amount determined by the Board: Provided, That in no year may the total of the contributions
provided for in this section, to be paid by the county commission, exceed ten and one-half percent
of the total payroll for the members in the employ of the county commission for the preceding fiscal year. If the Board finds that the benefits provided by this article can be actually funded with a lesser
contribution, then the Board shall reduce the required member or employer contributions or both.
The sums withheld each calendar month shall be paid to the Fund no later than ten fifteen days
following the end of the calendar month.
(b) Any active member who has concurrent employment in an additional job or jobs and the
additional employment requires the deputy sheriff to be a member of another retirement system
which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter
five of this code shall make an additional contribution to the Fund of eight and one-half percent of
his or her monthly salary earned from any additional employment which requires the deputy sheriff
to be a member of another retirement which is administered by the Consolidated Public Retirement
Board pursuant to article ten-d, chapter five of this code. An additional amount shall be paid to the
Fund by the concurrent employer for which the member is employed in an amount determined by
the Board: Provided, That in no year may the total of the contributions provided in this section, to
be paid by the concurrent employer, exceed ten and one-half percent of the monthly salary of the
employee. If the Board finds that the benefits provided by this article can be funded with a lesser
contribution, then the Board shall reduce the required member or employer contributions or both.
The sums withheld each calendar month shall be paid to the Fund no later than fifteen days following
the end of the calendar month.
§7-14D-13. Refunds to certain members upon discharge or resignation; deferred retirement;
forfeitures.
(a) Any member who terminates covered employment and is not eligible to receive disability
benefits under this article is, by written request filed with the Board, entitled to receive from the
Fund the member's accumulated contributions. Except as provided in subsection (b) of this section,
upon withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.
(b) Any member of this plan who withdraws accumulated contributions from either this plan
or the public employees retirement system and thereafter becomes reemployed ceases employment
in covered employment and active participation in this plan, and who thereafter becomes reemployed
in covered employment shall may not receive any credited service for any prior withdrawn accumulated contributions from either this plan or the Public Employees Retirement System relating
to the prior covered employment unless following his or her return to covered employment and
active participation in this plan, the member redeposits in the fund this plan the amount of the
withdrawn accumulated contributions submitted on salary earned while a deputy sheriff, together
with interest on the accumulated contributions at the rate determined by the Board from the date of
withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on
account of his or her former service in covered employment as if no refund had been made. The
repayment authorized by this subsection shall be made in a lump sum within sixty months of the
deputy sheriff's reemployment in covered employment or if later, within sixty months of the
effective date of this article.
(c) A member of this plan who has elected to transfer from the Public Employees Retirement
System into this plan pursuant to subsection (b) of section five of this article may not, after having
transferred into and become an active member of this plan, reinstate to his or her credit in this plan
any service credit relating to periods of nondeputy sheriff service which were withdrawn from the
Public Employees Retirement System plan
prior to his or her elective transfer into this plan.
(c) (d) Every member who completes sixty months of covered employment is eligible, upon
cessation of covered employment, to either withdraw his or her accumulated contributions in
accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated
contribution and to receive retirement income payments upon attaining normal retirement age.
(d) (e) Notwithstanding any other provision of this article, forfeitures under the plan shall not
be applied to increase the benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan
may borrow from the plan no more than one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars nor more than eight thousand
dollars: Provided, That the maximum amount of any loan shall not exceed the lesser of the
following: (1) Eight thousand dollars; or (2) fifty percent of his or her accumulated contributions.
No member is eligible for more than one outstanding loan at any time. No loan may be made from the plan if the Board determines that the loans constitute more than fifteen percent of the amortized
cost value of the assets of the plan as of the last day of the preceding plan year. The Board may
discontinue the loans any time it determines that cash flow problems might develop as a result of the
loans. Each loan shall be repaid through monthly installments over periods of six through sixty
months and carry interest on the unpaid balance and an annual effective interest rate that is two
hundred basis points higher than the most recent rate of interest used by the Board for determining
actuarial contributions levels: Provided, however, That interest charged shall be commercially
reasonable in accordance with the provisions of Section 72(p)(2) of the Internal Revenue Code and
federal regulations issued thereunder. Monthly loan payments shall be calculated to be as nearly
equal as possible with all but the final payment being an equal amount. An eligible member may
make additional loan payments or pay off the entire loan balance at any time without incurring any
interest penalty. At the member's option, the monthly loan payment may include a level premium
sufficient to provide declining term insurance with the plan as beneficiary to repay the loan in full
upon the member's death. If a member declines the insurance and dies before the loan is repaid, the
unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable under
section twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire may have the loan repaid in
full by accepting retirement income payments reduced by deducting from the actuarial reserve for
the accrued benefit the amount of the unpaid balance and then converting the remaining of the
reserve to a monthly pension payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due thereon, shall at the option of the
Retirement Board become due and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events of default: (1) Any payment
of principal and accrued interest on a loan remains unpaid after the same they become due and
payable under the terms of the loan or after such the grace period as may be established in the
discretion of the Retirement Board; (2) the borrowing member attempts to make an assignment for
the benefit of creditors of his or her benefit under the retirement system; or (3) any other event of
default set forth in rules promulgated by the Board pursuant to the authority granted in section one, article ten-d, chapter five of this code: Provided, That any offset of an unpaid loan balance shall be
made only at such time as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon such
additional terms as to default, prepayment, security, and otherwise as the Retirement Board may
determine.
(e) Notwithstanding anything herein in this section to the contrary, the loan program
authorized by this section shall comply with the provisions of Section 72(p)(2) and Section 401 of
the Internal Revenue Code and the federal regulations issued thereunder. The Retirement Board is
authorized to may: (a) Apply and construe the provisions of this section and administer the plan loan
program in such a manner as to comply with the provisions of Sections 72(p)(2) and Section 401 of
the Internal Revenue Code; (b) adopt plan loan policies or procedures consistent with these federal
law provisions; and (c) take such any actions as it deems considers necessary or appropriate to
administer the plan loan program created hereunder under this section in accordance with these
federal law provisions. The Retirement Board is further authorized in connection with the plan loan
program to take any actions that may at any time be required by the Internal Revenue Service
regarding compliance with the requirements of Section 72(p)(2) or Section 401 of the Internal
Revenue Code, notwithstanding any provision in this article to the contrary.
(f) Notwithstanding anything in this article to the contrary, the loan program authorized by
this section shall not be available to any deputy sheriff who becomes a member of the Deputy Sheriff
Retirement System on or after the first day of July, two thousand five.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 8. PENSION LIABILITY REDEMPTION.
§12-8-2. Declaration of policy; legislative findings; legislative intent.
The Legislature finds and declares that:
(a) The Legislature has established a number of pension systems, including the death,
disability and retirement fund of the West Virginia State Police established in article two, chapter
fifteen of this code; the Judges' Retirement System established in article nine, chapter fifty-one of this code; and the Teachers Retirement System established in article seven-a, chapter eighteen of this
code, each of which is a trust for the benefit of the participating public employees.
(b) The supreme court of appeals of West Virginia has ruled that the Legislature is obligated
to fund these pension systems on an actuarially sound basis and that pension system obligations are
legitimate debts of the state.
(c) As a result of financial distress that occurred in the state during the 1980s, the death,
disability and retirement fund of the West Virginia State Police, the judges' retirement system and
the teachers retirement system each has a significant unfunded actuarial accrued liability which is
being amortized over a term of years ending no later than two thousand thirty-four through annual
appropriations in addition to amounts appropriated annually for the normal cost contribution to these
pension systems.
(d) The supreme court of appeals has ruled that the unfunded actuarial accrued liability of
pension systems is a public debt of the state that must be repaid.
(e) The unfunded actuarial accrued liability of each pension system is a previous liability of
the state. The supreme court of appeals has held that the Legislature may choose to redeem a
previous liability of the state through the issuance of bonds.
(f) This article provides for the redemption of the unfunded actuarial accrued liability of each
pension system, which is a previous liability of the state, through the issuance of bonds for the
purpose of: (i) Providing for the safety and soundness of the pension systems; and (ii) redeeming
each such previous liability of the pension systems in order to realize realizing savings over the
remaining term of the amortization schedules of the unfunded actuarial accrued liabilities and
thereby achieve budgetary savings.
§12-8-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Bonds' means bonds, notes, refunding notes and bonds, or other obligations of the state
issued by the Governor pursuant to this article.
(2) 'Consolidated Public Retirement Board' means the Board created to administer all public
retirement plans in this state under article ten-d, of chapter five of this code and any board or agency
that succeeds to the powers and duties of the Consolidated Public Retirement Board.
(3) 'Costs' include, but are not limited to, amounts necessary to fund any capitalized interest
funds and any reserve funds, any costs relating to the issuance and determination of the validity of
the bonds, fees for obtaining bond insurance, credit enhancements or liquidity facilities,
administrative costs, fees incurred pursuant to subsection (f), section five of this article and costs
attributable to the agreements described in section six of this article.
(4) 'Death, Disability and Retirement Fund' means the Death, Disability and Retirement
Fund of the department of public safety West Virginia State Police created by article two, chapter
fifteen of this code.
(5) 'Department of administration' means the Department established pursuant to article one,
chapter five-a of this code and any board or agency that succeeds to the powers and duties of the
Department of Administration.
(6) 'Executive order' means an executive order issued by the governor to authorize the
issuance of bonds as provided in this article.
(7) 'Investment management board' means the Board established under article six, chapter
twelve of this code, and any board or agency that succeeds to the powers and duties of the Investment
Management Board.
(8) 'Judges' Retirement System' means the Judicial Retirement System created under article
nine, chapter fifty-one of this code.
(9) 'Obligation holders' means any holder or owner of any bond, any trustee or other
fiduciary for any such holder, or any provider of a letter of credit, policy of bond insurance, surety,
or other credit enhancement or liquidity facility or swap relating to any bond.
(10) 'Pension Liability Redemption Fund' means the special account in the State Treasury
created pursuant to subsection (a), section eight of this article.
(11) 'Pension Liability Redemption Payments' means: (a) The principal of, premium, if any,
and interest on any outstanding bonds issued pursuant to this article; and (b) any other amounts required to be paid pursuant to the terms of any outstanding bonds, any indenture authorized
pursuant to this article and any other agreement entered into between the Governor and any
obligation holder.
(12) 'Pension systems' means the Judges' Retirement System, the Death, Disability and
Retirement Fund and the teachers retirement fund.
(13) 'Refund' or 'refunding' means the issuance and sale of bonds the proceeds of which are
used or are to be used for the payment, defeasance or redemption of outstanding bonds upon or prior
to maturity.
(14) 'Refunding bonds' means bonds issued for the payment, defeasance or redemption of
outstanding bonds upon or prior to maturity.
(15)'Teachers Retirement System' means the retirement system established in article
seven-a, chapter eighteen of this code.
(16) 'True interest cost' means the interest rate that, when compounded at time intervals
consistent with the structure of the bond issue and used to discount the payments of principal of and
interest on the bonds, causes such discounted principal and interest payments to equal the purchase
price of the bonds. To ensure that the costs of issuance of the bonds are included in the true interest
cost, the costs of issuance shall be deducted from the purchase price of the bonds before calculating
the interest rate.
(17) 'Normal cost' means the value of benefits accruing for the current valuation year under
the actuarial cost method.
(18) (17) 'Actuarial cost method' means a mathematical process in which the cost of benefits
projected to be paid after a period of active employment has ended is allocated over the period of
active employment during which such the benefits are earned.
(19) (18) 'Unfunded actuarial accrued liability' means the aggregate of the unfunded actuarial
accrued liabilities of the pension systems, with the unfunded actuarial accrued liability of each
pension system being calculated in an actuarial valuation report provided by the Consolidated Public
Retirement Board to the Department of Administration pursuant to section four of this article.
(19) 'West Virginia State Police Retirement System' means the retirement system established
in article two-a, chapter fifteen of this code.
(20) 'West Virginia Public Employees Retirement System' means the retirement system
established in article ten, chapter five of this code.
(21) 'West Virginia State Sponsored Pension Systems' means the pension systems as defined
in subdivision twelve of this subsection, the West Virginia Public Employees Retirement System and
the West Virginia State Police Retirement System.
§12-8-4. Issuance of bonds; determination of unfunded actuarial accrued liability.
(a) Notwithstanding any other provision of this code and pursuant to section four, article ten
of the constitution of West Virginia, the The Governor shall have the power may, as provided by this
article, to issue the bonds authorized in this section at a time or times as provided by a resolution
adopted by the Legislature to redeem a previous liability of the state by funding fund all or a portion
of the unfunded actuarial accrued liability, such the bonds to be payable from and secured by moneys
deposited in the Pension Liability Redemption Fund. Any bonds issued pursuant to this article, other
than refunding bonds, shall be issued no later than five years after the date of adoption of the
resolution of the Legislature authorizing the issuance of the bonds referred to in this section.
(b) The aggregate principal amount of bonds issued pursuant to the provisions of this article
is limited to no more than the lesser of the following: (1) The principal amount necessary, after
deduction of costs, underwriter's discount and original issue discount, if any, to fund not in excess
of one hundred percent of the unfunded actuarial accrued liability of the Death, Disability and
Retirement Fund of the division of public safety West Virginia State Police established in article
two, chapter fifteen of this code, one hundred percent of the unfunded actuarial accrued liability of
the Judges' Retirement System established in article nine, chapter fifty-one of this code, and ninety-
five percent of the unfunded actuarial accrued liability of the Teachers Retirement System
established in article seven-a, chapter eighteen of this code, as certified by the Consolidated Public
Retirement Board to the Department of Administration pursuant to subsection (e) of this section; or
(2) three five billion nine five hundred million dollars; but in no event shall the aggregate principal
amount of bonds issued exceed the principal amount necessary, after deduction of costs, underwriter's discount and original issue discount, if any, to fund not in excess of the total unfunded
actuarial accrued liability, as certified by the Consolidated Public Retirement Board to the
Department of Administration pursuant to subsection (e) of this section.
(c) The costs of issuance, excluding fees for ratings, bond insurance, credit enhancements
and liquidity facilities, plus underwriter's discount and any other costs associated with the issuance
shall not exceed, in the aggregate, the sum of one percent of the aggregate principal amount of bonds
issued. All such costs shall be subject to the review and approval of a majority of the members of
a review committee. The review committee shall consist of the state treasurer and four persons
having skill and experience in bond issuance, appointed by the governor.
(d) The limitation on the aggregate principal amount of bonds provided in this section shall
not preclude the issuance of bonds from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the Department of Administration,
the Consolidated Public Retirement Board shall provide the Department of Administration with a
certified statement of the amount of each pension system's unfunded actuarial accrued liability
calculated in an actuarial valuation report that establishes the amount of the unfunded actuarial
accrued liability as of a date specified by the Department of Administration, based upon each
pension system's most recent actuarial valuation.
(f) No later than fifteen days after receipt of a request from the Governor, the Department of
Administration shall provide the Governor with a certification of the maximum aggregate principal
amount of bonds that may be issued at that time pursuant to subsection (b) of this section.
(g) Prior to any request of the governor that the Legislature prepare and consider a resolution
authorizing the issuance of bonds, the bonds shall be authorized by a majority of the members of the
review committee described in subsection (c) of this section.
§12-8-5. Method of bond issuance; manner of sale of bonds; authority of department of
administration.
(a) The governor shall, by executive message, request the Legislature prepare and consider
a resolution authorizing the issuance of bonds described in section four of this article. The executive
message shall specify the maximum costs associated with the issue. Upon the adoption of a resolution by the Legislature authorizing the issuance of the bonds in the amount and upon the terms
specified in the resolution, the bonds shall be authorized by an executive order issued by the
Governor. The executive order shall be received by the Secretary of State and filed in the State
Register pursuant to section three, article two, chapter twenty-nine-a of this code. The Governor,
either in the executive order authorizing the issuance of the bonds or by the execution and delivery
by the Governor of a trust indenture or agreement authorized in such the executive order, shall
stipulate the form of the bonds, whether the bonds are to be issued in one or more series, the date or
dates of issue, the time or times of maturity, which shall not exceed the longest remaining term of
the current amortization schedules for the unfunded actuarial accrued liability, the rate or rates of
interest payable on the bonds, which may be at fixed rates or variable rates and which interest may
be current interest or may accrue, the denomination or denominations in which the bonds are issued,
the conversion or registration privileges applicable to some or all of the bonds, the sources and
medium of payment and place or places of payment, the terms of redemption, any privileges of
exchangeability or interchangeability applicable to the bonds, and the entitlement of obligation
holders to priorities of payment or security in the amounts deposited in the pension liability
redemption fund. Bonds shall be signed by the Governor and attested by the Secretary of State, by
either manual or facsimile signatures. The Governor shall not sign the bonds unless he shall first
make a written finding, which shall be transmitted to the state treasurer, the Secretary of State, the
speaker of the House of Delegates and the president of the Senate, that: (i) The true interest cost of
the bonds is at least thirty basis points less than the assumed actuarial interest rate used to calculate
the unfunded actuarial accrued liability; and (ii) that the issuance of the bonds will not in any manner
cause a down grade or reduction in the state's general obligation credit rating by standard bond rating
agencies.
(b) The bonds may be sold at public or private sale at a price or prices determined by the
Governor. The Governor is authorized to may enter into any agreements necessary or desirable to
effectuate the purposes of this section, including agreements to sell bonds to any person and to
comply with the laws of any jurisdiction relating thereto.
(c) The Governor, in the executive order authorizing the issuance of bonds or by the
execution and delivery by the Governor of a trust indenture or agreement authorized in such the
executive order, may covenant as to the use and disposition of or pledge of funds made available for
pension liability redemption payments or any reserve funds established pursuant to such the
executive order or established pursuant to any indenture authorized by such the executive order. All
costs may be paid by or upon the order of the Governor from amounts received from the proceeds
of the bonds and from amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution adopted by the Legislature
authorizing the same.
(e) Neither the Governor, the Secretary of State, nor any other person executing or attesting
the bonds or any agreement authorized in this article shall be are personally liable with respect to
payment of any pension liability redemption payments.
(f) (e) Notwithstanding any other provision of this code, and subject to the approval of the
review committee, the Department of Administration, in the Department's discretion: (i) Shall
select, employ and compensate one or more persons or firms to serve as bond counsel or cobond
counsel who shall be responsible for the issuance of a final approving opinion regarding the legality
of the bonds issued pursuant to this article; (ii) may select, employ and compensate one or more
persons or firms to serve as underwriter or counderwriter for any issuance of bonds pursuant to this
article; and (iii) may select, employ and compensate one or more fiduciaries, financial advisors and
experts, other legal counsel, placement agents, appraisers, actuaries and such any other advisors,
consultants and agents as may be necessary to effectuate the purposes of this article.
Notwithstanding the provisions of article three, chapter five of this code, bond counsel may represent
the state in court, render advice and provide other legal services as may be requested by the Governor
or the Department of Administration regarding any bond issuance pursuant to this article and all
other matters relating to the bonds.
(g) Notwithstanding any other provision of this code, and subject to the approval of the
review committee, the state treasurer, in the state treasurer's discretion shall select, employ and compensate an independent person or firm to serve as special counsel to the state treasurer to advise
the state treasurer with respect to the state treasurer's duties pursuant to this article.
§12-8-6. Contracts with obligation holders; provisions of bonds and trust indentures and
other agreements.
(a) The Governor may enter into contracts with obligation holders and the Governor shall
have the authority to shall comply fully with the terms and provisions of any contracts made with
obligation holders.
(b) In addition and not in limitation to the other provisions of this section, in connection with
any bonds issued pursuant to this article, the Governor may enter into: (i) Commitments
commitments to purchase or sell bonds and bond purchase or sale agreements; (ii) agreements
providing for credit enhancement or liquidity, including revolving credit agreements, agreements
establishing lines of credit or letters of credit, insurance contracts, surety bonds and reimbursement
agreements; (iii) agreements to manage interest rate exposure and the return on investments,
including interest rate exchange agreements, interest rate cap, collar, corridor, ceiling and floor
agreements, option, rate spread or similar exposure agreements, float agreements and forward
agreements; (iv) stock exchange listing agreements; and (v) any other commitments, contracts or
agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and as to the issuance of such
the bonds, in escrow or otherwise, provide for the replacement of lost, destroyed or mutilated bonds,
covenant against extending the time for the payment of bonds or interest thereon on the bonds and
covenant for the redemption of bonds and provide the terms and conditions of such the redemption.
(d) Except as otherwise provided in any executive order or in this article, the terms of the
executive order and of this article in effect on the date the bonds are issued shall constitute a contract
between the state and obligation holders. Any representation, warranty or covenant made by the
Governor in the executive order, any indenture of trust or trust agreement authorized by the
executive order, any bond or any other contract entered into pursuant to this article with any
obligation holder shall be a representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any portion of them, the right to
enforce the payment of the bonds or agreements authorized in this article or any covenants securing
or relating to the bonds or such the agreements. The Governor may prescribe the procedure, if any,
by which the terms of any contract with obligation holders may be supplemented, amended or
abrogated, prescribe which supplements or amendments will require the consent of obligation
holders and the portion of obligation holders required to effect such the consent and prescribe the
manner in which such the consent may be given.
§12-8-7. Proceeds from the sale of bonds.
(a) The proceeds from the sale of bonds, other than refunding bonds, issued pursuant to this
article, after payment of any costs payable at time of issuance of such the bonds, shall be paid to the
Consolidated Public Retirement Board to redeem the unfunded actuarial accrued liability, which is
a previous liability of the state, by funding fund the amount of the unfunded actuarial accrued
liability provided for by such the bonds.
(b) From time to time when requested by the Department of Administration, the Investment
Management Board shall prepare and submit to the Governor, the Speaker of the House of Delegates,
the President of the Senate and the Department of Administration the short-term and long-term
investment strategies that the Investment Management Board intends to follow for investment of the
plan assets of the pension systems, as adjusted by the deposit of the proceeds of bonds issued
pursuant to this article.
(c) Commencing with the fiscal year following the fiscal year during which a series of bonds
is issued under this article and the proceeds thereof are deposited into the applicable pension
systems, annual appropriations by the state into the teachers retirement pension system required
under other provisions of this code shall equal the amount necessary to pay the normal cost and the
scheduled payment of the remaining unfunded actuarial accrued liability, if any, of such pension
system: Provided, That if such amount in any one fiscal year is less than the members' required
contributions to such plan, as expressed as a percentage of members' payroll, the state shall deposit
into the pension liability redemption fund an amount expressed as a percentage of members' payroll,
representing the difference between what the state contributes to such plan, expressed as a percentage of members' payroll, and what the members contribute to the plan, expressed as a percent of
members' payroll.
§12-8-8. Continuation of Pension Liability Redemption Fund; disbursements to pay pension
liability redemption payments.
(a) There is hereby created continued a special account in the State Treasury to be
administered by the State Treasurer, which shall be is designated and known as the 'Pension Liability
Redemption Fund,' into which shall be deposited any and all amounts appropriated by the
Legislature or funds from any other source whatsoever which are made available by law for the
purpose of making pension liability redemption payments. All funds deposited to the credit of the
Pension Liability Redemption Fund shall be held in a separate account and all money belonging to
the Fund shall be deposited in the State Treasury to the credit of the Pension Liability Redemption
Fund.
(b) On or before the first day of November of each year, the Department of Administration
shall certify to the Governor and the State Treasurer and deliver to the Speaker of the House of
Delegates and the President of the Senate a certification as to the amount of pension liability
redemption payments to be appropriated for the next fiscal year in order to pay in full when due all
pension liability redemption payments that will become due during the next fiscal year. Such The
certification shall include the amount and due date of each such pension liability redemption
payment. All moneys appropriated by the Legislature in accordance with a certification made
pursuant to this subsection shall be deposited into the Pension Liability Redemption Fund.
(c) The State Treasurer shall pay to the trustee under the trust indenture or agreement
executed by the Governor all pension liability redemption payments as and when due. Such The
payments shall be transferred by electronic funds transfer, unless some other manner of funds
transfer is specified by the Governor. No payments shall be required for bonds that are defeased or
bonds for which a deposit sufficient to provide for all payments on the bonds has been made.
(d) There shall be created within the Pension Liability Redemption Fund a subaccount into
which there shall be deposited annually by the legislature an amount not greater than the aggregate
amount certified by each system's actuary to represent the difference between the pension liability redemption payments and the annual amortization payments on the unfunded actuarial accrued
liability that would have been due for such fiscal year had the bonds issued pursuant to this article
not been issued. Upon resolution passed by the Legislature, the Governor shall use funds on deposit
in the subaccount in the amount and upon the terms specified in the resolution: (1) To reduce any
remaining unfunded actuarial accrued liability; or (2) to provide for the early retirement of the bonds
if possible.
§12-8-10. State pledges and covenants.
(a) The state of West Virginia covenants and agrees with the obligation holders, and the
indenture shall so state, that the bonds issued pursuant to this article are issued to redeem a previous
liability of the state and shall therefore constitute a direct and general obligation of the state of West
Virginia; that the pension liability redemption payments will be included in each budget along with
all other amounts for payment and discharge of the principal of and interest on state debt; that the
full faith and credit of the state is hereby pledged to secure the payment of the principal of and
interest on the bonds; and that annual state taxes shall be collected in an amount sufficient to pay the
pension liability redemption payments as they become due and payable from the Pension Liability
Redemption Fund.
(b) The state hereby pledges and covenants with the obligation holders, and the indenture
shall so state, that the state will not limit or alter the rights, powers or duties vested in any state
official, or that state official's successors or assigns, and the obligation holders in a way that will
inhibit any state official, or that state official's successors or assigns, from carrying out such the state
official's rights, powers or duties under this article, nor limit or alter the rights, powers or duties of
any state official, or that state official's successors or assigns, in any manner which would jeopardize
the interest of any obligation holder, or inhibit or prevent performance or fulfillment by any state
official, or that state official's successors or assigns, with respect to the terms of any agreement made
with any obligation holder pursuant to section six of this article.
(c) The state hereby pledges and covenants with the obligation holders, and the indenture
shall so state, that, while any of the bonds are outstanding, should any increase of existing benefits
or the creation of new benefits under any of the pension systems, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, cause any
additional unfunded actuarial accrued liability in any of the pension systems (calculated in an
actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability
of that pension system will be fully amortized over no more than the five consecutive fiscal years
following the date the increase in benefits or new benefits become effective.
(d) The state hereby pledges and covenants with the obligation holders, and the indenture
shall so state, that, while any of the bonds are outstanding, should any additional unfunded actuarial
accrued liability in any of the pension systems (calculated in an actuarially sound manner) occur
during any fiscal year due to changes in actuarial assumptions, changes in investment performance
or increases in benefits or additional benefits occurring by operation of law in effect on the effective
date of this article, and such additional unfunded actuarial accrued liability persists for a period of
five consecutive fiscal years, the governor shall submit to the Legislature a plan to fund such
additional unfunded actuarial accrued liability over a reasonable period.
(c) The state hereby pledges and covenants with the obligation holders, and the indenture
shall state, that, while any of the bonds are outstanding, any changes in unfunded actuarial accrued
liability in any of the West Virginia state sponsored pension systems resulting from the actual
experience for that system occurring during any fiscal year due to net differences between the
expected and actual experience for that year will be fully amortized over no more than the five
consecutive fiscal years following the date the Consolidated Public Retirement Board certifies the
net actuarial gain or loss to the Governor. The certification shall be made on or before the thirty-first
day of January of each year. The net actuarial gain or loss for the fiscal year shall be determined
from the actuarial valuation authorized by the Consolidated Public Retirement Board for each plan
completed at as of the first day of the following fiscal year. Following the receipt of the certification
of net actuarial gain or loss, the Governor shall submit the amount of the amortization payment or
credit each year for the pension systems as part of the annual budget submission or in an executive
message to the Legislature. The Consolidated Public Retirement Board shall include the five year
amortization in the determination of the adequacy of the employer contribution percentage for the West Virginia Public Employees Retirement System and West Virginia State Police Retirement
System.
(d) The state hereby pledges and covenants with the obligation holders, and the indenture
shall state, that, while any of the bonds are outstanding, if the unfunded actuarial accrued liability
of any of the West Virginia state sponsored pension systems increases or decreases due to changes
in actuarial assumptions adopted by the Consolidated Public Retirement Board for completion of the
annual actuarial valuation for any plan, the change shall be fully amortized over no more than the
five consecutive fiscal years following the date the Consolidated Public Retirement Board certifies
the net change due to changes in assumptions to the Governor. The certification shall be made on
or before the thirty-first day of January of each year. Following the receipt of the certification of
change due to changes in actuarial assumptions, the Governor shall submit the amount of the
amortization payment each year for the pension systems as part of the annual budget submission or
in an executive message to the Legislature. The Consolidated Public Retirement Board shall include
the five year amortization in the determination of the adequacy of the employer contribution
percentage for the Public Employees Retirement System and West Virginia State Police Retirement
System.
(e) The state hereby pledges and covenants with the obligation holders, and the indenture
shall state, that, while any of the bonds are outstanding (1) the state will not increase any existing
benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly
benefit payments from any of the West Virginia state sponsored pension systems, other than an
increase in benefits or new benefits effected by operation of law in effect on the effective date of this
article, in an amount that would exceed more than one percent of the accrued actuarial liability of
the system as of the last day of the preceding fiscal year as determined in the annual actuarial
valuation for each plan completed for the Consolidated Public Retirement Board as of the first day
of the following fiscal year; and (2) if any increase of existing benefits or creation of new benefits
for any retirees or beneficiaries currently receiving monthly benefit payments under any of the West
Virginia state sponsored pension systems, other than an increase in benefits or new benefits effected
by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state sponsored pension systems as calculated
in the annual actuarial valuation for each plan during any fiscal year, the additional unfunded
actuarial accrued liability of that pension system will be fully amortized over no more than the five
consecutive fiscal years following the date the increase in benefits or new benefits become effective
as certified by the Consolidated Public Retirement Board. Following the receipt of the certification
of additional actuarial accrued liability, the Governor shall submit the amount of the amortization
payment each year for the pension systems as part of the annual budget submission or in an executive
message to the Legislature. The Consolidated Public Retirement Board shall include the five year
amortization in the determination of the adequacy of the employer contribution percentage for the
West Virginia Public Employees Retirement System and West Virginia State Police Retirement
System.
(f) Notwithstanding the provisions of subsections (a) through (e) of this section, the state
hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while
any of the bonds are outstanding that the computation of annuities or benefits for active members
due to retirement, death or disability as provided for in the pension systems shall not be amended
in any manner that increases any existing benefits or provides for new benefits.
(g) The state hereby pledges and covenants with the obligation holders, and the indenture
shall state, that, while any of the bonds are outstanding, the state will not increase any existing
benefits or create any new benefits for active members due to retirement, death or disability of the
West Virginia Public Employees Retirement System or the West Virginia State Police Retirement
System unless the actuarial accrued liability of the plan is at least 85% funded as of the last day of
the prior fiscal year as determined in the actuarial valuation for each plan completed for the
Consolidated Public Retirement Board as of the first day of the following fiscal year. Any additional
unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully
amortized over not more than ten years following the date the increase in benefits or new benefits
become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the ten year amortization in the determination of the adequacy of the employer contribution percentage for the West Virginia Public Employees Retirement System and
West Virginia State Police Retirement System.
§12-8-15. Operation of article.
Notwithstanding the effective date of this act of the Legislature, this article shall not become
operational and shall have no force and effect until the day the people ratify an amendment to the
constitution of this state authorizing pension obligation bonds.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(a) 'Board' means the Consolidated Public Retirement Board created pursuant to article ten-
d, chapter five of this code.
(b) 'Department' means the West Virginia State Police.
(c) 'Fund,' 'plan,' or 'system,' means the West Virginia Death, Disability and Retirement
Fund.
(d) 'Law-enforcement officer' means an individual employed or otherwise engaged in either
a public or private position which involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or private safety, including, but not limited
to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other
law-enforcement position which requires certification, but excluding positions held by elected
sheriffs or appointed chiefs of police whose duties are determined by the Board to be purely
administrative in nature.
(e) 'Member' means an employee of the West Virginia State Police who is an active
participant in the fund.
(f) 'Partially disabled' means a member's inability, on a probable permanent basis, to perform
the essential duties of a law-enforcement officer by reason of any medically determinable physical
or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the member from engaging in other
types of nonlaw-enforcement employment.
(g) 'Physical or mental impairment' means an impairment that results from an anatomical,
physiological or psychological abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(h) 'Totally disabled' means a member's probable permanent inability to engage in
substantial gainful activity by reason of any medically determined physical or mental impairment that
can be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months. For purposes of this subsection, a member is totally disabled only
if his or her physical or mental impairments are so severe that he or she is not only unable to perform
his or her previous work as a member of the Department but also cannot, considering his or her age,
education and work experience, engage in any other kind of substantial gainful employment which
exists in the state regardless of whether: (1) The work exists in the immediate area in which the
member lives; (2) a specific job vacancy exists; or (3) the member would be hired if he or she
applied for work.
§15-2-26. Continuation of death, disability and retirement fund; designating the Consolidated
Public Retirement Board as administrator of fund.
(a) There shall be is continued the Death, Disability and Retirement Fund heretofore created
for the benefit of members of the division of public safety Department and any dependent of a retired
or deceased member thereof of the Department.
(b) There shall be deducted from the monthly payroll of each member of the division of
public safety Department and paid into such the fund six percent of the amount of his or her salary:
Provided, That beginning on the first day of July, one thousand nine hundred ninety-four, there shall
be deducted from the monthly payroll of each member and paid into the Fund seven and one-half
percent of the amount of his or her salary: Provided, however, That on and after the first day of July,
one thousand nine hundred ninety-five, there shall be deducted from the monthly payroll of each
member and paid into the Fund nine percent of the amount of his or her salary. An additional twelve
percent of the monthly salary of each member of the division Department shall be paid by the State of West Virginia monthly into such the fund out of the annual appropriation for the division
Department: Provided further, That beginning on the first day of July, one thousand nine hundred
ninety-five, the State shall pay thirteen percent of the monthly salary of each member into the Fund:
And provided further, That beginning on the first day of July, one thousand nine hundred ninety-six,
the State shall pay fourteen percent of the monthly salary of each member into the Fund: And
provided further, That on and after the first day of July, one thousand nine hundred ninety-seven, the
State shall pay fifteen percent of the monthly salary of each member into the Retirement Fund.
There shall also be paid into the Fund amounts that have previously been collected by the
Superintendent of the division of public safety Department on account of payments to members for
court attendance and mileage, rewards for apprehending wanted persons, fees for traffic accident
reports and photographs, fees for criminal investigation reports and photographs, fees for criminal
history record checks, fees for criminal history record reviews and challenges or from any other
sources designated by the Superintendent. All moneys payable into the Fund shall be deposited in
the State Treasury and the Treasurer and Auditor shall keep a separate account thereof on their
respective books.
(c) Notwithstanding any other provisions of this article, forfeitures under the Fund shall not
be applied to increase the benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a retirement allowance, to the
return of contributions, or to any benefit under the provisions of this article, are hereby exempt from
any state or municipal tax; shall not be subject to execution, garnishment, attachment or any other
process whatsoever, with the exception that the benefits or contributions under the Fund shall be
subject to 'qualified domestic relations orders' as that term is defined in Section 414(p) of the
Internal Revenue Code with respect to governmental plans; and shall be unassignable except as is
provided in this article. The Death, Disability and Retirement Fund shall be administered by the
Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death, Disability and Retirement Fund,
except such amounts as shall be designated or set aside by the awards, shall be invested by the State
Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The Retirement Board shall retire any member of the division of public safety Department
when the member has both attained the age of fifty-five years and completed twenty-five years of
service as a member of the division Department, including military service credit granted under the
provisions of section twenty-eight of this article.
(b) The Retirement Board shall retire any member of the division of public safety Department
who has lodged with the secretary Executive Director of the Consolidated Public Retirement Board
his or her voluntary petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service as a member of the division
Department (including military service credit granted under the provisions of section twenty-eight
of this article);
(2) Has or shall have attained the age of fifty years and has or shall have completed twenty
years of service as a member of the division Department (excluding military service credit granted
under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have completed twenty years of service as
a member of the division Department (excluding military service credit granted under section
twenty-eight of this article.)
(c) When the Retirement Board retires any member under any of the provisions of this
section, the Board shall, by order in writing, make an award directing that the member shall be is
entitled to receive annually and that there shall be paid to the member from the Death, Disability and
Retirement Fund in equal monthly installments during the lifetime of the member while in status of
retirement, one or the other of two amounts, whichever is the greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the
member during the whole period of service as a member of the division of public safety Department;
or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer but less than twenty-five
years as a member of the division Department and shall be is retired under any of the provisions of this section before he or she shall have has attained the age of fifty years, payment of monthly
installments of the amount of retirement award to such the member shall commence on the date he
or she attains the age of fifty years. Beginning on the fifteenth day of July, one thousand nine
hundred ninety-four, in no event may the provisions of section thirteen, article sixteen, chapter five
of this code be applied in determining eligibility to retire with either immediate or deferred
commencement of benefit.
(d) Any individual who is a leased employee shall is not be eligible to participate in the Fund.
For purposes of this Fund, a '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 power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
(a) Every member of the division of public safety Department who is fifty-five years of age
or older and who is retired by the Retirement Board under the provisions of section twenty-seven of
this article; every member of the division of public safety Department who is retired by the
Retirement Board under the provisions of section twenty-nine or thirty of this article; and every
surviving spouse or other beneficiary receiving a benefit pursuant to section thirty-three or thirty-four
of this article, is eligible to receive an annual retirement annuity adjustment equal to three and
seventy-five hundredths percent of his or her retirement award or surviving spouse award: Provided,
That for any person retiring on and after the fifteenth day of September, one thousand nine hundred
ninety-four, the annual retirement annuity adjustment shall be equal to two percent of his or her
retirement award or award paid to a surviving spouse or other beneficiary. Such The adjustments
may not be retroactive. Yearly adjustments shall begin upon the first day of July of each year. The
annuity adjustments shall be awarded and paid to the members from the Death, Disability and
Retirement Fund in equal monthly installments while the member is in status of retirement. The
annuity adjustments shall supplement the retirement awards and benefits as provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant to the provisions of section
twenty-nine, thirty, thirty-three or thirty-four of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That
if the member has been retired for less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata share of the full year's annuity
adjustment.
§15-2-28. Credit toward retirement for member's prior military service; credit toward
retirement when member has joined armed forces in time of armed
conflict; qualified military service
.
(a) For purposes of this section, the term 'active military duty' means full-time active duty
with the Armed Forces of the United States, namely, the United States Air Force, Army, Coast
Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of
such Armed Forces when the member has been called to active full-time duty and has received no
compensation during the period of such duty from any person other than the Armed Forces.
(b) Any member of the Department who has previously served on active military duty shall
be is entitled to and shall receive credit on the minimum period of service required by law for
retirement pay from the service of the West Virginia State Police under the provisions of this article
for a period equal to the active military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the Armed Forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period
of active military duty;
(3) That he or she is receiving no benefits from any other retirement system for his or her
active military duty; and
(4) That, except with respect to disability retirement pay awarded under section thirty of this
article, he or she has actually served with the Department for twenty years exclusive of his or her
active military duty.
(c) The amount of retirement pay to which any such member is entitled shall be calculated
and determined as if he or she had been receiving for the period of his or her active military duty a
monthly salary from the Department equal to the average monthly salary which he or she actually
received from the Department for his or her total service with the Department exclusive of the active military duty. The Superintendent is authorized to shall transfer and pay into the Death, Disability
and Retirement Fund from moneys appropriated for the Department, a sum equal to eighteen percent
of the aggregate of the salaries on which the retirement pay of all such members has been calculated
and determined for their periods of active military duty. In addition, any person who, while a
member of the Department was commissioned, enlisted or inducted into the Armed Forces of the
United States or, being a member of the reserve officers' corps, was called to active duty in said the
Armed Forces between the first day of September, one thousand nine hundred forty, and the close
of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred
fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand
nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four and
the close of the armed conflict in Vietnam, or during any other period of armed conflict by the
United States whether sanctioned by a declaration of war by the Congress or by executive or other
order of the President, shall be is entitled to and shall receive credit on the minimum period of
service required by law for retirement pay from the service of the West Virginia State Police for a
period equal to the full time he or she has or shall, pursuant to such the commission, enlistment,
induction or call, have served with said the Armed Forces subject to the following:
(1) That he or she has been honorably discharged from the Armed Forces;
(2) That within ninety days after honorable discharge from the Armed Forces he or she has
presented himself or herself to the Superintendent and offered to resume service as an active member
of the Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge,
acceptance of commission or otherwise, to extend or participate in extension of the period of service
with the Armed Forces beyond the period of service for which he or she was originally
commissioned, enlisted, inducted or called.
(d) That amount of retirement pay to which any such member shall be is entitled shall be
calculated and determined as if the member has continued in the active service of the Department
at the rank or grade to him or her appertaining at the time of such the commission, induction,
enlistment or call, during a period coextensive with the time the member served with the Armed Forces pursuant to the commission, induction, enlistment or call. The Superintendent of the
Department is authorized to shall transfer and pay each month into the Death, Disability and
Retirement Fund from moneys appropriated for the Department a sum equal to eighteen percent of
the aggregate of salary which all such members would have been entitled to receive had they
continued in the active service of the Department during a period coextensive with the time such the
members served with the Armed Forces pursuant to the commission, induction, enlistment or call:
Provided, That the total amount of military service credit allowable under this section shall not
exceed five years.
(e) Notwithstanding any of the preceding provisions of this section, contributions, benefits
and service credit with respect to qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this section, 'qualified military
service' has the same meaning as in Section 414(u) of the Internal Revenue Code. The Retirement
Board is authorized to may determine all questions and make all decisions relating to this section
and, pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter
five of this code, may promulgate rules relating to contributions, benefits and service credit to
comply with Section 414(u) of the Internal Revenue Code.
§15-2-29. Awards and benefits for disability -- Incurred in performance of duty.
(a) Any member of the division Department who has not yet entered retirement status on the
basis of age and service and who becomes partially been or shall become physically or mentally
permanently disabled by injury, illness or disease resulting from any occupational risk or hazard
inherent in or peculiar to the services required of members of the division Department and incurred
pursuant to or while such the member was or shall be engaged in the performance of his or her duties
as a member of the division Department shall, if, in the opinion of the Retirement Board, he or she
is by reason of such that cause probably permanently unable to perform adequately the duties
required of him or her as a member of the division Department, but is able to engage in any other
gainful employment in a field other than law enforcement, be retired from active service by the
Retirement Board. The member thereafter shall be is entitled to receive annually and there shall be
paid to such the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such the member; or until the member attains the age of fifty; or
until such the disability shall sooner terminate terminates, one or the other of two amounts,
whichever is greater:
(1) An amount equal to two thirds of the salary received in the preceding twelve-month
employment period: Provided, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the benefit provided for in subsection
(c), section twenty-seven of this article as it would apply to his or her aggregate career earnings from
the division Department through the day immediately preceding his or her disability. The
recalculation of benefit upon a member attaining age fifty shall be deemed considered to be a
retirement under the provisions of section twenty-seven of this article, for purposes of determining
the amount of annual annuity adjustment and for all other purposes of this article: Provided, That
a member who is partially disabled under this article may not, while in receipt of benefits for partial
disability, be employed as a law-enforcement officer: Provided, however, That a member retired on
partial disability under this article may serve as an elected sheriff or appointed chief of police in the
state without a loss of disability retirement benefits so long as the elected or appointed position is
shown, to the satisfaction of the Board, to require the performance of administrative duties and
functions only, as opposed to the full range of duties of a law-enforcement officer.
(c) If any member not yet in retirement status on the basis of age and service is found by the
Board to be permanently and totally disabled as the result of a physical or mental impairment shall
become permanently physically or mentally disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services required of members of the division
Department and incurred pursuant to or while such the member was or shall be engaged in the
performance of his or her duties as a member of the Department, division, to the extent that such
member is or shall be incapacitated ever to engage in any gainful employment such the member shall
be is entitled to receive annually and there shall be paid to such the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such the member
or until such the disability shall sooner terminate terminates, an amount equal to the amount of the
salary received by the member in the preceding twelve-month employment period: Provided, That
in no event may such the amount be less than fifteen thousand dollars per annum, unless required
by section forty of this article: Provided, however, That if the member had not been employed with
the division Department for twelve months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit.
(c) (d) The Superintendent is authorized to may expend moneys from funds appropriated for
the division Department in payment of medical, surgical, laboratory, X-ray, hospital, ambulance and
dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial
limbs and other approved appliances which may be reasonably necessary for any member of the
division Department who has or shall become becomes temporarily, permanently or totally disabled
by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to
the service required of members of the division Department and incurred pursuant to or while such
member was or shall be engaged in the performance of duties as a member of the division
Department. Whenever the Superintendent shall determine determines that any disabled member
is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent shall, at
the request of such the disabled member, refer such the matter to the Consolidated Public Retirement
Board for hearing and final decision. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current rate schedule in use by the
Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term 'salary' does not include any compensation
paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the division Department has, or shall in the opinion
of the Retirement Board, become permanently partially or totally disabled to the extent that such the
member cannot adequately perform the duties required of a member of the division Department from
any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, such the member shall be retired by the
Retirement Board. Such The member shall be is entitled to receive annually and there shall be paid
to such the member while in status of retirement, from the Death, Disability and Retirement Fund
in equal monthly installments during the lifetime of such member or until such the disability shall
sooner terminate terminates, a sum equal to one-half the salary received in the preceding
twelve-month period: Provided, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit. If such the member, at the time of such
retirement under the terms of this section, shall have has served twenty years or longer as a member
of the division, such Department, the member shall be is entitled to receive annually and there shall
be paid to such the member from the Death, Disability and Retirement Fund in equal monthly
installments, commencing on the date such the member shall be is retired and continuing during the
lifetime of such the member, until the member attains the age of fifty, while in status of retirement,
an amount equal to one-half the salary received by the member in the preceding twelve-month
period: Provided, however, That if the member had not been employed with the division Department
for twelve months prior to the disability, the amount of monthly salary shall be annualized for the
purpose of determining the benefit.
For the purposes of this section, the term 'salary' does not include any compensation paid
for overtime service.
Upon attaining age fifty, the member shall receive the benefit provided for in subsection (c),
section twenty-seven of this article as it would apply to his or her aggregate career earnings from the
division Department through the day immediately preceding his or her disability. The recalculation
of benefit upon a member attaining age fifty shall be deemed considered to be a retirement under the
provisions of section twenty-seven of this article, for purposes of determining the amount of annual
annuity adjustment and for all other purposes of this article.
§15-2-31. Same - Physical examinations; termination.
The Consolidated Public Retirement Board may require any member who has been or who
shall be retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the Board and cause all costs
incident to such the examination including hospital, laboratory, X ray, medical and physicians' fees
to be paid out of funds appropriated to defray the current expense of the division Department, and
a report of the findings of such the physician or physicians shall be submitted in writing to the
Consolidated Public Retirement Board for its consideration. If, from such the report or from such
the report and hearing thereon on the report, the Retirement Board shall be is of opinion and find
finds that such the disabled member shall have has recovered from such the disability to the extent
that he or she is able to perform adequately the duties of a law-enforcement officer, a member of the
division the Board shall order such member to reassume active duty as a member of the division and
thereupon that all payments from the Death, Disability and Retirement Fund shall be terminated.
If, from the report or the report and hearing thereon on the report, the Board shall be is of the opinion
and find finds that the disabled member shall have has recovered from the his or her previously
determined probable permanent disability to the extent that he or she is able to engage in any gainful
employment but remains unable to adequately perform the duties of a law-enforcement officer,
required as a member of the division the Board shall order the payment, in monthly installments of
an amount equal to two thirds of the salary, in the case of a member retired under the provisions of
section twenty-nine of this article, or equal to one half of the salary, in the case of a member retired
under the provisions of section thirty of this article, excluding any compensation paid for overtime
service, for the twelve-month employment period preceding the disability: Provided, That if the
member had not been employed with the division Department for twelve months prior to the
disability, the amount of monthly salary shall be annualized for the purpose of determining the
benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a member or, if the member is under
an incapacity, by a person acting with legal authority on the member's behalf. After receiving an
application for a disability benefit from a member or a person acting with legal authority on behalf
of the member, the Board shall notify the Superintendent of the Department that an application has
been filed: Provided, That when, in the judgment of the Superintendent, a member is no longer physically or mentally fit for continued duty as a member of the West Virginia State Police and the
member has failed or refused to make application for disability benefits under this article, the
Superintendent may petition the Board to retire the member on the basis of disability pursuant to
rules which may be established by the Board. Within thirty days of the Superintendent's receipt of
the notice from the Board or the filing of the Superintendent's petition with the Board, the
Superintendent shall forward to the Board a statement certifying the duties of the member's
employment, information relating to the Superintendent's position on the work relatedness of the
member's alleged disability, complete copies of the member's medical file and any other information
requested by the Board in its processing of the application, if this information is requested timely.
(b) The Board shall propose legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code relating to the processing of applications and petitions for
disability retirement under this article.
(c) The Board shall notify a member and the Superintendent of its final action on the
disability application or petition within ten days of the Board's final action. The notice shall be sent
by certified mail, return receipt requested. If either the member or the Superintendent is aggrieved
by the decision of the Board and intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of this code, the party so aggrieved shall
notify the Board within twenty days of the member's or Superintendent's receipt of the Board's
notice that they intend to pursue judicial review of the Board's decision.
(d) The Board may require a disability benefit recipient to file an annual statement of
earnings and any other information required in rules which may be adopted by the Board. The Board
may waive the requirement that a disability benefit recipient file the annual statement of earnings if
the Board's physician certifies that the recipient's disability is ongoing. The Board shall annually
examine the information submitted by the recipient. If a disability retirant refuses to file a statement
and information, the disability benefit shall be suspended until the statement and information are
filed.
§15-2-31b. Annual report on each employer's disability retirement experience.
Not later than the first day of January, two thousand six, and each first day of January
thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total number of disability applications
submitted, the status of each application as of the last day of the fiscal year, total applications granted
or denied, and the percentage of disability benefit recipients to the total number of State Police
employees who are members of the Fund. The report shall be submitted to the Governor and the
chairpersons of the standing committees of the Senate and House of Delegates with primary
responsibility for retirement legislation.
§15-2-32. Retired member not to exercise police authority; retention of group insurance
.
A member who has been or shall be is retired shall may not, while in retirement status,
exercise any of the powers conferred upon active members by section twelve of this article; but shall
be is entitled to receive free of cost to such the member and retain as his or her separate property one
complete standard uniform prescribed by section nine of this article: Provided, That such the
uniform may be worn by a member in retirement status only on such occasions as shall be prescribed
by the Superintendent. The Superintendent is authorized to shall maintain at public expense for the
benefit of all members in retirement status that group life insurance mentioned in section ten of this
article. The Superintendent, when he shall be or she is of opinion that the public safety shall require,
may recall to active duty during such any period as determined by the Superintendent shall
determine, any member who shall be is retired under the provisions of section twenty-seven of this
article, provided the consent of such the member to reassume duties of active membership shall first
be had and obtained. When any member in retirement shall reassume resumes status of active
membership such the member, during the period such the member shall remain remains in active
status, shall is not be entitled to receive retirement pay or benefits, but in lieu thereof, shall be is
entitled to receive that rate of salary and allowance pertinent to the rank or grade held by such the
member when retired. When such the member shall be is released from active duty he or she shall
reassume the status of retirement and shall thereupon be entitled to receive appropriate benefits as
provided by this article: Provided, That the amount of such the benefits shall in no event be less than
the amount determined by the order of the Retirement Board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member -- When member dies in
performance of duty, etc.; dependent child scholarship and amount
.
(a) The surviving spouse or the dependent child or children or dependent parent or parents
of any member who has lost or shall lose loses his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or peculiar to the service required of
members while such the member was or shall be is engaged in the performance of his or her duties
as a member of the division Department, or if said the member shall die dies from any cause after
having been retired pursuant to the provisions of section twenty-nine of this article, the surviving
spouse or other dependent shall be is entitled to receive and shall be paid from the Death, Disability
and Retirement Fund benefits as follows: To the surviving spouse annually, in equal monthly
installments during his or her lifetime one or the other of two amounts, which shall become
immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the salary received in the preceding twelve-month
employment period by the deceased member: Provided, That if the member had not been employed
with the division Department for twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) In addition thereto such the surviving spouse shall be is entitled to receive and there shall
be paid to such person the surviving spouse one hundred dollars monthly for each dependent child
or children. If such the surviving spouse dies or if there is no surviving spouse, there shall be paid
monthly to each such dependent child or children from the Death, Disability and Retirement Fund
a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no surviving
spouse and no dependent child or children, there shall be paid annually in equal monthly installments
from the Death, Disability and Retirement Fund to the dependent parents of the deceased member
during their joint lifetimes a sum equal to the amount which a surviving spouse, without children,
would have received: Provided, That when there is but one dependent parent surviving, that parent
is entitled to receive during his or her lifetime one-half the amount which both parents, if living,
would have been entitled to receive.
(c) Any person qualified as a surviving dependent child under this section shall, in addition
to any other benefits due under this or other sections of this article, be is entitled to receive a
scholarship to be applied to the career development education of that person. This sum up to but not
exceeding seven thousand five hundred dollars shall be paid from the Death, Disability and
Retirement Fund to any university or college in this state or to any trade or vocational school or other
entity in this state approved by the Board, to offset the expenses of tuition, room and board, books,
fees or other costs incurred in a course of study at any of those institutions so long as the recipient
makes application to the Board on an approved form and under such rules as provided by the Board
may provide, and maintains scholastic eligibility as defined by the institution or the Board. The
Board may by appropriate rules define age requirements, physical and mental requirements,
scholastic eligibility, disbursement methods, institutional qualifications and other requirements as
necessary and not inconsistent with this section.
(d) Awards and benefits for a member's surviving spouse or dependents received under any
section or any of the provisions of this retirement system shall be in lieu of receipt of any such
benefits for such those persons under the provisions of any other state retirement system. Receipt
of benefits under any other state retirement system shall be in lieu of any right to receive any benefits
under this retirement system, so that only a single receipt of retirement benefits shall occur occurs.
(e) For the purposes of this section, the term 'salary' does not include any compensation paid
for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected causes.
(a) In any case where a member while in active service of the division Department, before
having completed twenty years of service as a member of the division has died or shall die
Department, dies from any cause other than those specified in this article and not due to vicious
habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal
monthly installments from said the Death, Disability and Retirement Fund to the surviving spouse
of such the member during his or her lifetime, or until such time as said the surviving spouse
remarries, a sum equal to one half of the salary received in the preceding twelve-month employment
period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to his or her death, the amount of monthly salary shall
be annualized for the purpose of determining the benefit. Such The benefit shall become
immediately available upon the death of the member. If there is no surviving spouse, or the
surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children,
from the Death, Disability and Retirement Fund, a sum equal to twenty-five percent of the surviving
spouse's entitlement. If there are is no surviving spouse and no dependent child or children, there
shall be paid annually in equal monthly installments from the Fund to the dependent parents of the
deceased member during their joint lifetimes, a sum equal to the amount which a surviving spouse
would have been entitled to receive: Provided, however, That when there is but one dependent
parent surviving, that parent shall be is entitled to receive during his or her lifetime one-half the
amount which both parents, if living, would have been entitled to receive.
(b) For the purposes of this section, the term 'salary' does not include compensation paid for
overtime service.
§15-2-37. Refunds to certain members upon discharge or resignation; deferred retirement.
(a) Any member who shall be is discharged by order of the Superintendent or shall otherwise
terminate terminates employment with the division shall Department, at the written request of the
member to the Retirement Board, be is entitled to receive from the Retirement Fund a sum equal to
the aggregate of the principal amount of moneys deducted from his or her salary and paid into the
Death, Disability and Retirement Fund plus four percent interest compounded thereon calculated
annually as provided and required by this article.
(b) Any member who has ten or more years of service with the division Department and who
withdraws his or her contributions may thereafter be reenlisted as a member of the division
Department, but may not receive any prior service credit on account of former service, unless
following reenlistment the member shall redeposit redeposits in the Fund established in article two-a
of this chapter the amount of the refund, together with interest thereon at the rate of seven and one-
half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she
shall receive the same credit on account of his or her former service as if no refund had been made. He or she shall become a member of the Retirement System established in article two-a of this
chapter.
(c) Every member who completes ten years of service with the division of public safety
Department is eligible, upon separation of employment with the division Department, either to
withdraw his or her contributions in accordance with subsection (a) of this section or to choose not
to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two,
a member who chooses not to withdraw his or her contributions will be is eligible to receive a
retirement annuity. Any member choosing to receive the deferred annuity under this subsection is
not eligible to receive the annual annuity adjustment provided in section twenty-seven-a of this
article. When the Retirement Board retires any member under any of the provisions of this section,
the Board shall, by order in writing, make an award directing that the member is entitled to receive
annually and that there shall be paid to the member from the Death, Disability and Retirement Fund
in equal monthly installments during the lifetime of the member while in status of retirement one or
the other of two amounts, whichever is greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the
member during the whole period of service as a member of the division of public safety Department;
or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the member. The retiring member may
choose, in lieu of such a life annuity, an annuity in reduced amount payable during the member's
lifetime, with one half of such the reduced monthly amount paid to his or her surviving spouse if any,
for the spouse's remaining lifetime after the death of the member. Reduction of this monthly benefit
amount shall be calculated to be of equal actuarial value to the life annuity the member could
otherwise have chosen.
§15-2-39a. Limitations on benefit increases.
(a) The Legislature shall not increase any existing benefits or create any new benefits for any
retirees or beneficiaries currently receiving monthly benefit payments from the system, other than
an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability
of the system as of the last day of the preceding fiscal year as determined in the annual actuarial
valuation for each plan completed for the Consolidated Public Retirement Board as of the first day
of the following fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
causes any additional unfunded actuarial accrued liability in any of the West Virginia state sponsored
pension systems as calculated in the annual actuarial valuation for each plan during any fiscal year,
the additional unfunded actuarial accrued liability of the system shall be fully amortized over no
more than the five consecutive fiscal years following the date the increase in benefits or new benefits
become effective as certified by the consolidated public retirement board. Following the receipt of
the certification of additional actuarial accrued liability, the Governor shall submit the amount of the
amortization payment each year for the system as part of the annual budget submission or in an
executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation
of annuities or benefits for active members due to retirement, death or disability as provided for in
the system shall not be amended in such a manner as to increase any existing benefits or to provide
for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand
twenty-five: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code,
the provisions of this section shall not terminate while any of the bonds are outstanding.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Active military duty' means full-time active duty with the Armed Forces of the United
States, namely, the United States Air Force, Army, Coast Guard, Marines or Navy; and service with
the National Guard or reserve military forces of any of such the Armed Forces when the member has been called to active full-time duty and has received no compensation during the period of such duty
from any person other than the Armed Forces.
(2) 'Base salary' means compensation paid to a member without regard to any overtime pay.
(3) 'Board' means the Consolidated Public Retirement Board created pursuant to article ten-
d, chapter five of this code.
(4) 'Division' 'Department' means the division of public safety West Virginia State Police.
(5) 'Final average salary' means the average of the highest annual compensation received for
employment with the division Department, including compensation paid for overtime service,
received by the member during any five calendar years within the member's last ten years of service.
(6) 'Fund' means the West Virginia State Police Retirement Fund created pursuant to section
four of this article.
(7) 'Member' or 'employee' means a person regularly employed in the service of the division
of public safety after the effective date of this article.
(8) 'Salary' means the compensation of a member, excluding any overtime payments.
(9)'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended.
(10) 'Plan year' means the twelve-month period commencing on the first day of July of any
designated year and ending the following thirtieth day of June.
(11) '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 he or she retires or otherwise separates from service with the department.
(12)'Retirement system,' or 'system' means the West Virginia state police retirement system
created and established by this article.
(7) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended.
(8) 'Law-enforcement officer' means individuals employed or otherwise engaged in either
a public or private position which involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or private safety, including, but not limited
to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected
sheriffs or appointed chiefs of police whose duties are purely administrative in nature.
(9) 'Member' or 'employee' means a person regularly employed in the service of the
Department as a law-enforcement officer after the effective date of this article.
(10) 'Month of service' means each month for which a member is paid or entitled to payment
for at least one hour of service for which contributions were remitted to the Fund. These months
shall be credited to the member for the calendar year in which the duties are performed.
(11) 'Partially disabled' means a member's inability, on a probable permanent basis, to
perform the essential duties of a law enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected to last for a continuous period
of not less than twelve months, but which impairment does not preclude the member from engaging
in other types of nonlaw-enforcement employment.
(12) 'Physical or mental impairment' means an impairment that results from an anatomical,
physiological or psychological abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(13) 'Plan year' means the twelve-month period commencing on the first day of July of any
designated year and ending the following thirtieth day of June.
(14) '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 years; or
(b) the calendar year in which he or she retires or otherwise separates from service with the
Department after having attained the age of seventy and one half years.
(15) 'Retirement system,' 'plan' or 'system' means the West Virginia State Police Retirement
System created and established by this article.
(16) 'Salary' means the compensation of a member, excluding any overtime payments.
(17) 'Totally disabled' means a member's probable permanent inability to engage in
substantial gainful activity by reason of any medically determined physical or mental impairment that
can be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months. For purposes of this subdivision, a member is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform
his or her previous work as a member of the Department, but also cannot, considering his or her age,
education and work experience, engage in any other kind of substantial gainful employment which
exists in the state regardless of whether: (A) The work exists in the immediate area in which the
member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she
applied for work.
(18) 'Years of service' means the months of service acquired by a member while in active
employment with the Department divided by twelve. Years of service shall be calculated in years
and fraction of a year from the date of active employment of the member with the Department
through the date of termination of employment or retirement from the Department. If a member
returns to active employment with the Department following a previous termination of employment
with the Department, and the member has not received a refund of contributions plus interest for the
previous employment under section eight of this article, service shall be calculated separately for
each period of continuous employment, and years of service shall be the total service for all periods
of employment. Years of service shall exclude any periods of employment with the Department for
which a refund of contributions plus interest has been paid to the member, unless the member repays
the previous withdrawal, as provided in section eight of this article, to reinstate the years of service.
§15-2A-5. Members' contributions; employer contributions; forfeitures.
(a) There shall be deducted from the monthly payroll of each member and paid into the Fund
created pursuant to section four of this article, twelve percent of the amount of his or her salary. An
additional twelve percent of the monthly salary of each member of the Department shall be paid by
the State of West Virginia monthly into such Fund out of the annual appropriation for the division.
(b) The state of West Virginia's contributions to the retirement system, as determined by the
Consolidated Public Retirement Board by legislative rule promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code, shall be a percent of the members' total
annual compensation related to benefits under this retirement system. In determining the amount,
the Board shall give consideration to setting the amount at a sum equal to an amount which, if paid
annually by the state, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and to amortize any unfunded liability found by application of the
actuarial funding method chosen for that purpose by the Consolidated Public Retirement Board, over
a period of years determined actuarially appropriate. When proposing a rule for promulgation which
relates to the amount of employer contribution, the board may promulgate emergency rules pursuant
to the provisions of article three, chapter twenty-nine-a of this code, if the inability of the Board to
increase state contributions will detrimentally affect the actuarial soundness of the retirement system.
A signed statement from the state actuary shall accompany the statement of facts and circumstances
constituting an emergency which shall be filed in the State Register. For purposes of this section,
subdivision (2), subsection (b), section fifteen-a, article three, chapter twenty-nine-a of this code is
not applicable to the Secretary of State's determination of whether an emergency rule should be
approved. The state's contributions shall be paid monthly into the fund created pursuant to section
four of this article out of the annual appropriation for the Department.
(b) (c) Notwithstanding any other provisions of this article, forfeitures under the system shall
not be applied to increase the benefits any member would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits.
(a) A member may retire with full benefits upon attaining the age of fifty-five and completing
twenty or more years of service, by lodging with the Consolidated Public Retirement Board his or
her voluntary petition in writing for retirement. A member who is less than age fifty-five may retire
upon completing twenty years or more of service: Provided, That he or she will receive a reduced
benefit that is of equal actuarial value to the benefit the member would have received if the member
deferred commencement of his or her accrued retirement benefit to the age of fifty-five.
(b) When the Retirement Board retires a member with full benefits under the provisions of
this section, the Board, by order in writing, shall make a determination that the member is entitled
to receive an annuity equal to two and three-fourths percent of his or her final average salary
multiplied by the number of years, and fraction of a year, of his or her service in the division
Department at the time of retirement. The member's annuity shall begin the first day of the calendar
month following the month in which the member's application for the annuity is filed with the Board
on or after his or her attaining age and service requirements, and termination of employment.
(c) In no event may the provisions of section thirteen, article sixteen, chapter five be applied
in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.
(a) Every member of the division of public safety Department who is sixty-three years of age
or older and who is retired by the Retirement Board under the provisions of section six of this article;
every member who is retired under the provisions of section nine or ten of this article; and every
surviving spouse receiving a benefit pursuant to section twelve, thirteen or fourteen of this article
is eligible to receive an annual retirement annuity adjustment equal to one percent of his or her
retirement award or surviving spouse award. Such The adjustments may not be retroactive. Yearly
adjustments shall begin upon the first day of July of each year. The annuity adjustments shall be
awarded and paid to a member from the Fund in equal monthly installments while the member is in
status of retirement. The annuity adjustments shall supplement the retirement awards and benefits
provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant to the provisions of section
nine, ten, twelve, thirteen or fourteen of this article shall begin to receive the annual annuity
adjustment one year after the commencement of the benefit on the next July first: Provided, That
if the member has been retired for less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata share of the full year's annuity
adjustment.
§15-2A-8. Refunds to certain members upon discharge or resignation; deferred retirement.
(a) Any member who shall be is discharged by order of the Superintendent or shall otherwise
terminate terminates employment with the division shall Department is, at the written request of the
member to the Retirement Board, be entitled to receive from the Retirement Fund a sum equal to the
aggregate of the principal amount of moneys deducted from the salary of the member and paid into
the Retirement Fund plus four percent interest compounded thereon calculated annually as provided
and required by this article.
(b) Any member withdrawing contributions who may thereafter be reenlisted as a member
of the division Department shall not receive any prior service credit on account of the former service, unless following his or her reenlistment the member shall redeposit redeposits in the Fund the
amount of the refund, together with interest thereon at the rate of seven and one-half percent per
annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the
same credit on account of his or her former service as if no refund had been made.
(c) Every member who completes ten years of service with the division of public safety
Department is eligible, upon separation of employment with the division Department, to either
withdraw his or her contributions in accordance with subsection (a) of this section, or to choose not
to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two,
a member who chooses not to withdraw his or her contributions will be is eligible to receive a
retirement annuity. The annuity shall be payable during the lifetime of the member, and shall be in
the amount of his or her accrued retirement benefit as determined under section six of this article.
The retiring member may choose, in lieu of such a life annuity, an annuity in reduced amount
payable during the member's lifetime, with one half of the reduced monthly amount paid to his or
her surviving spouse if any, for the spouse's remaining lifetime after the death of the member.
Reduction of such the monthly benefit amount shall be calculated to be of equal actuarial value to
the life annuity the member could otherwise have chosen. Any member choosing to receive the
deferred annuity under this subsection is not eligible to receive the annual annuity adjustment
provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in performance of duty.
(a) Except as otherwise provided in this section, Any a member of the division Department
who has not yet entered retirement status on the basis of age and service and who has been or shall
become physically or mentally permanently becomes partially disabled by injury, illness or disease
resulting from any occupational risk or hazard inherent in or peculiar to the services required of
members of the division Department and incurred pursuant to or while the member was or shall be
engaged in the performance of his or her duties as a member of the division Department shall, if, in
the opinion of the Retirement Board, he or she is, by reason of such cause, unable to perform
adequately the duties required of him or her as a member of the division Department, but is able to
engage in other gainful employment in a field other than law enforcement, be retired from active service by the Board. The member shall thereafter be is entitled to receive annually and there shall
be paid to the member from the Fund in equal monthly installments during the lifetime of the
member, or until the member attains the age of fifty-five or until such the disability shall sooner
terminate terminates, one or the other of two amounts, whichever is greater:
(1) An amount equal to six tenths of the base salary received in the preceding twelve-month
employment period: Provided, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the benefit provided for in section six
of this article as it would apply to his or her final average salary based on earnings from the division
Department through the day immediately preceding his or her disability. The recalculation of benefit
upon a member attaining age fifty-five shall be deemed considered to be a retirement under the
provisions of section six of this article, for purposes of determining the amount of annual annuity
adjustment and for all other purposes of this article: Provided, That a member who is partially
disabled under this article may not, while in receipt of benefits for partial disability, be employed as
a law-enforcement officer: Provided, however, That a member retired on a partial disability under
this article may serve as an elected sheriff or appointed chief of police in the state without a loss of
disability retirement benefits so long as the elected or appointed position is shown, to the satisfaction
of the Board, to require the performance of administrative duties and functions only, as opposed to
the full range of duties of a law-enforcement officer.
(b) If any Any member who has not yet entered retirement status on the basis of age and
service and who shall become permanently becomes physically or mentally disabled by injury, illness
or disease on a probable permanent basis resulting from any occupational risk or hazard inherent in
or peculiar to the services required of members of the division Department and incurred pursuant to
or while such the member was or shall be is engaged in the performance of his or her duties as a
member of the division Department to the extent that the member is or shall be incapacitated ever
to engage in any gainful employment, the member shall be is entitled to receive annually, and there shall be paid to such the member from the Fund in equal monthly installments during the lifetime
of the member or until such the disability shall sooner terminate terminates, an amount equal to the
amount of the base salary received by the member in the preceding twelve-month employment
period.
(c) The Superintendent of the division is authorized to Department may expend moneys from
funds appropriated for the division Department in payment of medical, surgical, laboratory, X-ray,
hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the
purchase of artificial limbs and other approved appliances which may be reasonably necessary for
any member of the division Department who has or shall become is temporarily, permanently or
totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent
in or peculiar to the service required of members of the division Department and incurred pursuant
to or while the member was or shall be engaged in the performance of duties as a member of the
division Department. Whenever the Superintendent shall determine determines that any disabled
member is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent
shall, at the request of the disabled member, refer such the matter to the Board for hearing and final
decision. In no case will the compensation rendered to health care providers for medical and hospital
services exceed the then current rate schedule in use by the Bureau of Employment Programs,
Workers' Compensation Division.
§15-2A-10. Same -- Due to other causes.
(a) If any member while in active service of the division has or shall, in the opinion of the
board, become permanently State Police becomes partially or totally disabled on a probable
permanent basis to the extent that the member he or she cannot adequately perform the duties
required of a member of the division Department from any cause other than those set forth in the
preceding section and not due to vicious habits, intemperance or willful misconduct on his or her
part, the member shall be retired by the Board. There shall be paid annually to the member from the
Fund in equal monthly installments, commencing on the date the member shall be is retired and
continuing during the lifetime of the member; or until the member attains the age of fifty-five; while
in status of retirement an amount equal to one half the base salary received by the member in the preceding twelve-month period: Provided, That if the member had not been employed with the
division Department for twelve months prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit.
(b) Upon attaining age fifty-five, the member shall receive the benefit provided for in section
six of this article as it would apply to his or her final average salary based on earnings from the
division Department through the day immediately preceding his or her disability. The recalculation
of benefit upon a member attaining age fifty-five shall be deemed considered to be a retirement under
the provisions of section six of this article, for purposes of determining the amount of annual annuity
adjustment and for all other purposes of this article.
§15-2A-11. Same -- Physical examinations; termination.
The Board may require any member who has been or who shall be retired with compensation
on account of disability to submit to a physical and/or or mental examination or both a physical and
mental examination by a physician or physicians selected or approved by the retirement Board and
cause all costs incident to such the examination including hospital, laboratory, X-ray, medical and
physicians' fees to be paid out of funds appropriated to defray the current expenses of the division
Department, and a report of the findings of such the physician or physicians shall be submitted in
writing to the Board for its consideration. If from the report or from the report and hearing thereon
on the report, the Board shall be is of opinion and find finds that the disabled member shall have has
recovered from such the disability to the extent that he or she is able to perform adequately the duties
of a member of the division law-enforcement officer, the Board shall order the member to reassume
active duty as a member of the division and thereupon that all payments from the Fund shall be
terminated. If from the report or the report and hearing thereon on the report, the Board shall be is
of the opinion and find that the disabled member has recovered from the his or her previously
determined probable permanent disability to the extent that he or she is able to engage in any gainful
employment but unable to adequately perform the duties required as a member of the division of a
law-enforcement officer, the Board shall order, in the case of a member retired under the provisions
of section nine of this article, that the disabled member be paid annually from the Fund an amount
equal to six tenths of the base salary paid to the member in the last twelve-month employment period. The Board shall order, in the case of a member retired under the provisions of section ten
of this article, that the disabled member be paid from the Fund an amount equal to one fourth of the
base salary paid to the member in the last twelve-month employment period: Provided, That if the
member had not been employed with the division Department for twelve months prior to the
disability, the amount of monthly salary shall be annualized for the purpose of determining the
benefit.
§15-2A-11a. Physical examinations of prospective members; application for disability
benefit; determinations.
(a) Not later than thirty days after an employee becomes a member of the Fund, the employer
shall forward to the Board a copy of the physician's report of a physical examination which
incorporates the standards or procedures described in section seven, article two, chapter fifteen of
this code. A copy of the physicians's report shall be placed in the employee's retirement system file
maintained by the Board.
(b) Application for a disability benefit may be made by a member or, if the member is under
an incapacity, by a person acting with legal authority on the member's behalf. After receiving an
application for a disability benefit, the Board shall notify the Superintendent of the Department that
an application has been filed: Provided, That when, in the judgment of the Superintendent, a
member is no longer physically or mentally fit for continued duty as a member of the West Virginia
State Police and the member has failed or refused to make application for disability benefits under
this article, the Superintendent may petition the Board to retire the member on the basis of disability
pursuant to legislative rules proposed in accordance with article three, chapter twenty-nine-a of this
code. Within thirty days of the Superintendent's receipt of the notice from the Board or the filing
of the Superintendent's petition with the Board, the Superintendent shall forward to the Board a
statement certifying the duties of the member's employment, information relating to the
Superintendent's position on the work relatedness of the member's alleged disability, complete
copies of the member's medical file and any other information requested by the Board in its
processing of the application.
(c) The Board shall propose legislative rules in accordance with article three, chapter twenty-
nine-a of this code relating to the processing of applications and petitions for disability retirement
under this article.
(d) The Board shall notify a member and the Superintendent of its final action on the
disability application or petition within ten days of the Board's final action. The notice shall be sent
by certified mail, return receipt requested. If either the member or the Superintendent is aggrieved
by the decision of the Board and intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of this code, the party aggrieved shall
notify the Board within twenty days of the member's or Superintendent's receipt of the Board's
notice that they intend to pursue judicial review of the Board's decision.
(e) The Board may require a disability benefit recipient to file an annual statement of earnings
and any other information required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient file the annual statement of earnings if the
Board's physician certifies that the recipient's disability is ongoing. The Board shall annually
examine the information submitted by the recipient. If a disability recipient refuses to file the
statement or information, the disability benefit shall be suspended until the statement and
information are filed.
§15-2A-11b. Annual report on each employer's disability retirement experience.
Not later than the first day of January, two thousand six, and each first day of January
thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total number of disability applications
submitted, the status of each application as of the last day of the fiscal year, total applications granted
or denied, and the percentage of disability benefit recipients to the total number of the State Police
employees who are members of the Fund. The report shall be submitted to the Governor and the
chairpersons of the standing committees of the Senate and House of Delegates with primary
responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of member -- When member dies in
performance of duty, etc.; dependent child scholarship and amount.
The surviving spouse, the dependent child or children or dependent parent or parents of any
member who has lost or shall lose his or her life by reason of injury, illness or disease resulting from
an occupational risk or hazard inherent in or peculiar to the service required of members while the
member was or shall be engaged in the performance of his or her duties as a member of the division
Department, or the survivor of a member who dies from any cause after having been retired pursuant
to the provisions of section nine of this article, shall be is entitled to receive and shall be paid from
the Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during
his or her lifetime, one or the other of two amounts, which shall become immediately available and
which shall be the greater of:
(1) An amount equal to seven tenths of the base salary received in the preceding twelve-
month employment period by the deceased member: Provided, That if the member had not been
employed with the division Department for twelve months prior to his or her death, the amount of
monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse shall be is entitled to receive and there shall be paid
to such the person one hundred dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each
dependent child or children from the Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid
annually in equal monthly installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount which a surviving spouse, without
children, would have received: Provided, That when there is but one dependent parent surviving,
that parent is entitled to receive during his or her lifetime one half the amount which both parents,
if living, would have been entitled to receive.
Any person qualifying as a surviving dependent child under this section shall, in addition to
any other benefits due under this or other sections of this article, be is entitled to receive a
scholarship to be applied to the career development education of that person. This sum, up to but
not exceeding seven thousand five hundred dollars, shall be paid from the Fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the
Board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a
course of study at any of these institutions so long as the recipient makes application to the Board
on an approved form and under such rules as provided by the Board may provide, and maintains
scholastic eligibility as defined by the institution or the Board. The Board may by appropriate rules
define age requirements, physical and mental requirements, scholastic eligibility, disbursement
methods, institutional qualifications and other requirements as necessary and not inconsistent with
this section.
Awards and benefits for a surviving spouse or dependents of a member received under any
section or any of the provisions of this retirement system shall be are in lieu of receipt of any benefits
for these persons under the provisions of any other state retirement system. Receipt of benefits under
any other state retirement system shall be is in lieu of any right to receive any benefits under this
retirement system, so that only a single receipt of state retirement benefits shall occur occurs.
§15-2A-13. Same -- When member dies from nonservice-connected causes.
In any case where a member while in active service of the division Department, before having
completed twenty years of service as a member of the division has died or shall die Department, dies
from any cause other than those specified in this article and not due to vicious habits, intemperance
or willful misconduct on his or her part, there shall be paid annually in equal monthly installments
from the Fund to the surviving spouse of the member during his or her lifetime, or until such time
as the surviving spouse remarries, a sum equal to one half of the base salary received in the
preceding twelve-month employment period by the deceased member: Provided, That if the member
had not been employed with the division Department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of determining the benefit. If there is
no surviving spouse or the surviving spouse dies or remarries, there shall be paid monthly to each
dependent child or children from the Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid
annually in equal monthly installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount that a surviving spouse would have been entitled to receive: Provided, however, That when there is but one dependent parent surviving,
then that parent shall be is entitled to receive during his or her lifetime one half the amount which
both parents, if living, would have been entitled to receive.
§15-2A-14. Awards and benefits to dependents of member -- When member dies after
retirement or after serving twenty years
.
(a) When any member of the division Department has completed twenty years of service or
longer as a member of the division Department and has died or shall die dies from any cause or
causes other than those specified in this article before having been retired by the Board, and when
a member in retirement status has died or shall die after having been retired by the Board under the
provisions of this article, there shall be paid annually in equal monthly installments from the Fund
to the surviving spouse of the member, commencing on the date of the death of the member and
continuing during the lifetime or until remarriage of the surviving spouse, an amount equal to two
thirds of the retirement benefit which the deceased member was receiving while in status of
retirement, or would have been entitled to receive to the same effect as if the member had been
retired under the provisions of this article immediately prior to the time of his or her death. In no
event shall the annual benefit payable be less than five thousand dollars. In addition thereto, the
surviving spouse is entitled to receive and there shall be paid to the surviving spouse from the Fund
the sum of one hundred dollars monthly for each dependent child or children. If the surviving spouse
dies or remarries, or if there is no surviving spouse, there shall be paid monthly from the Fund to
each dependent child or children of the deceased member a sum equal to one fourth of the surviving
spouse's entitlement. If there is no surviving spouse or no surviving spouse eligible to receive
benefits and no dependent child or children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased member during their joint
lifetimes a sum equal to the amount which a surviving spouse without children would have been
entitled to receive: Provided, That when there is but one dependent parent surviving, that parent
shall be is entitled to receive during his or her lifetime one half the amount which both parents, if
living, would have been entitled to receive.
(b) The member may choose a higher percentage of surviving spouse benefits by taking an
actuarially determined reduced initial benefit so that the chosen spouse benefit and initial benefit
would be actuarially equivalent to the normal spouse benefit and initial benefit. The Retirement
Board shall design these benefit options and provide them as choices for the member to select. For
the purposes of this subsection, 'initial benefit' means the benefit received by the member upon
retirement.
§15-2A-19. Credit toward retirement for member's prior military service; credit toward
retirement when member has joined armed forces in time of armed
conflict; qualified military service.
(a) Any member who has previously served on active military duty is entitled to receive
additional credited service for the purpose of determining the amount of retirement award under the
provisions of this article for a period equal to the active military duty not to exceed five years,
subject to the following:
(1) That he or she has been honorably discharged from the Armed Forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period
of active military duty;
(3) That he or she is receiving no benefits from any other retirement system for his or her
active military duty; and
(4) That, except with respect to disability retirement pay awarded under this article, he or she
has actually served with the division Department for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who while a member of the division Department was
commissioned, enlisted or inducted into the Armed Forces of the United States or, being a member
of the reserve officers' corps, was called to active duty in the Armed Forces between the first day
of September, one thousand nine hundred forty, and the close of hostilities in World War II, or
between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed
conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between
the first day of August, one thousand nine hundred sixty-four, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by
a declaration of war by Congress or by executive or other order of the President, is entitled to and
shall receive credit on the minimum period of service required by law for retirement pay from the
service of the division of public safety Department, or its predecessor agency, for a period equal to
the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall
have served with the Armed Forces subject to the following:
(1) That he or she has been honorably discharged from the Armed Forces;
(2) That within ninety days after honorable discharge from the Armed Forces, he or she
presented himself or herself to the Superintendent and offered to resume service as an active member
of the division Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge,
acceptance of commission or otherwise, to extend or participate in extension of the period of service
with the Armed Forces beyond the period of service for which he or she was originally
commissioned, enlisted, inducted or called.
(c) The total amount of military service credit allowable under this section may not exceed
five years for any member of the division Department.
(d) Notwithstanding the preceding provisions of this section, contributions, benefits and
service credit with respect to qualified military service shall be provided in accordance with Section
414 (u) of the Internal Revenue Code. For purposes of this section, 'qualified military service' has
the same meaning as in Section 414 (u) of the Internal Revenue Code. The Retirement Board is
authorized to shall determine all questions and make all decisions relating to this section and,
pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter five
of this code, may promulgate rules relating to contributions, benefits and service credit to comply
with Section 414 (u) of the Internal Revenue Code.
§15-2A-21. Retirement credited service through member's use, as option, of accrued annual
or sick leave days.
Any member accruing annual leave or sick leave days may, after the effective date of this
section, elect to use the days at the time of retirement to acquire additional credited service in this retirement system. The days shall be applied on the basis of two workdays' credit granted for each
one day of accrued annual or sick leave days, with each month of retirement service credit to equal
twenty workdays and with any remainder of ten workdays or more to constitute a full month of
additional credit and any remainder of less than ten workdays to be dropped and not used,
notwithstanding any provisions of the code to the contrary. The credited service shall be allowed
and not considered to controvert the requirement of no more than twelve months' credited service
in any year's period.
§15-2A-22. Limitations on benefit increases.
(a) The state will not increase any existing benefits or create any new benefits for any retirees
or beneficiaries currently receiving monthly benefit payments from the system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
in an amount that would exceed more than one percent of the accrued actuarial liability of the system
as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for each
plan completed for the Consolidated Public Retirement Board as of the first day of the following
fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
causes any additional unfunded actuarial accrued liability in the system as calculated in the annual
actuarial valuation for each plan during any fiscal year, the additional unfunded actuarial accrued
liability of that pension system will be fully amortized over no more than the five consecutive fiscal
years following the date the increase in benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount of the amortization payment each
year for the system as part of the annual budget submission or in an executive message to the
Legislature. The Consolidated Public Retirement Board shall include the five year amortization in
the determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active
members due to retirement, death or disability of the system unless the actuarial accrued liability of
the plan shall be at least 85% funded as of the last day of the prior fiscal year as determined in the
actuarial valuation for each plan completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year. Any additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized over not more than ten years
following the date the increase in benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include
the ten year amortization in the determination of the adequacy of the employer contribution
percentage for the system.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
'Teacher member' means the following persons, if regularly employed for full-time service:
(a) Any person employed for instructional service in the public schools of West Virginia; (b)
principals; (c) public school librarians; (d) superintendents of schools and assistant county
superintendents of schools; (e) any county school attendance director holding a West Virginia
teacher's certificate; (f) the executive secretary of the retirement board; (g) members of the research,
extension, administrative or library staffs of the public schools; (h) the state superintendent of
schools, heads and assistant heads of the divisions under his or her supervision, or any other
employee under the state superintendent performing services of an educational nature; (i) employees
of the state board of education who are performing services of an educational nature; (j) any person
employed in a nonteaching capacity by the state board of education, the West Virginia board of
regents [abolished], any county board of education, the state department of education or the teachers
retirement board, if that person was formerly employed as a teacher in the public schools; (k) all
classroom teachers, principals and educational administrators in schools under the supervision of the
division of corrections, the division of health or the division of human services; and (l) employees of the state bod of school finance, if that person was formerly employed as a teacher in the public
schools.
'Nonteaching member' means any person, except a teacher member, who is regularly
employed for full-time service by: (a) Any county board of education; (b) the state board of
education; (c) the West Virginia board of regents [abolished]; or (d) the teachers retirement board.
'Members of the administrative staff of the public schools' means deans of instruction, deans
of men, deans of women, and financial and administrative secretaries.
'Members of the extension staff of the public schools' means every agricultural agent, boys'
and girls' club agent and every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
'Retirement system' means the state teachers retirement system provided for in this article.
'Present teacher' means any person who was a teacher within the thirty-five years beginning
the first day of July, one thousand nine hundred thirty-four, and whose membership in the retirement
system is currently active.
'New entrant' means a teacher who is not a present teacher.
'Regularly employed for full-time service' means employment in a regular position or job
throughout the employment term regardless of the number of hours worked or the method of pay.
'Employment term' means employment for at least ten months, a month being defined as
twenty employment days.
'Present member' means a present teacher who is a member of the retirement system.
'Total service' means all service as a teacher while a member of the retirement system since
last becoming a member and, in addition thereto, credit for prior service, if any.
'Prior service' means all service as a teacher completed prior to the first day of July, one
thousand nine hundred forty-one, and all service of a present member who was employed as a
teacher, and did not contribute to a retirement account because he or she was legally ineligible for
membership during the service.
'Pick-up service' means service that a member was entitled to, but which the employer has
not withheld or paid for.
'Average final salary' means the average of the five highest fiscal year salaries earned as a
member within the last fifteen fiscal years of total service credit, including military service as
provided in this article, or if total service is less than fifteen years, the average annual salary for the
period on which contributions were made.
'Accumulated contributions' means all deposits and all deductions from the earnable
compensation of a contributor minus the total of all supplemental fees deducted from his or her
compensation.
'Regular interest' means interest at four percent compounded annually, or a higher earnable
rate if set forth in the formula established in legislative rules, series seven of the Consolidated Public
Retirement Board.
'Refund interest' means interest compounded, according to the formula established in
legislative rules, series seven of the Consolidated Public Retirement Board.
'Employer' means the agency of and within the state which has employed or employs a
member.
'Contributor' means a member of the retirement system who has an account in the teachers
accumulation fund.
'Beneficiary' means the recipient of annuity payments made under the retirement system.
'Refund beneficiary' means the estate of a deceased contributor or a person he or she has
nominated as beneficiary of his or her contributions by written designation duly executed and filed
with the retirement board.
'Earnable compensation' means the full compensation actually received by members for
service as teachers whether or not a part of the compensation is received from other funds, federal
or otherwise, than those provided by the state or its subdivisions. Allowances from employers for
maintenance of members shall be considered a part of earnable compensation for those members
whose allowances were approved by the teachers retirement board and contributions to the teachers
retirement system were made, in accordance therewith, on or before the first day of July, one
thousand nine hundred eighty.
'Annuities' means the annual retirement payments for life granted beneficiaries in accordance
with this article.
'Member' means a member of the retirement system.
'Public schools' means all publicly supported schools, including normal schools, colleges
and universities in this state.
'Deposit' means a voluntary payment to his or her account by a member.
'Plan year' means the twelve-month period commencing on the first day of July and ending
the following thirtieth day of June of any designated year.
'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been amended.
'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 retires or ceases covered employment under the system.
(a) As used in this article, unless the context clearly require a different meaning:
(1) 'Accumulated contributions' means all deposits and all deductions from the gross salary
of a contributor plus regular interest.
(2) 'Accumulated net benefit' means the aggregate amount of all benefits paid to or on behalf
of a retired member;
(3) 'Annuities' means the annual retirement payments for life granted beneficiaries in
accordance with this article.
(4) 'Average final salary' means the average of the five highest fiscal year salaries earned as
a member within the last fifteen fiscal years of total service credit, including military service as
provided in this article, or if total service is less than fifteen years, the average annual salary for the
period on which contributions were made.
(5) 'Beneficiary' means the recipient of annuity payments made under the retirement system.
(6) 'Contributor' means a member of the retirement system who has an account in the
teachers accumulation fund.
(7) 'Deposit' means a voluntary payment to his or her account by a member.
(8) 'Employer' means the agency of and within the state which has employed or employs a
member.
(9) 'Employment term' means employment for at least ten months, a month being defined
as twenty employment days.
(10) 'Gross salary' means the fixed annual or periodic cash wages paid by a participating
public employer to a member for performing duties for the participating public employer for which
the member was hired. Gross salary shall also include retroactive payments made to a member to
correct a clerical error, or pursuant to a court order or final order of an administrative agency charged
with enforcing federal or state law pertaining to the member's rights to employment or wages, with
all such retroactive salary payments to be allocated to and deemed paid in the periods in which the
work was or would have been done. Gross salary shall not include lump sum payments for bonuses,
early retirement incentives, severance pay, or any other fringe benefit of any kind including, but not
limited to, transportation allowances, automobiles or automobile allowances, or lump sum payments
for unused, accrued leave of any type or character.
(11) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been
amended.
(12) 'Member' means a member of the retirement system.
(13) 'Members of the administrative staff of the public schools' means deans of instruction,
deans of men, deans of women, and financial and administrative secretaries.
(14) 'Members of the extension staff of the public schools' means every agricultural agent,
boys' and girls' club agent and every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
(15) 'New entrant' means a teacher who is not a present teacher.
(16) 'Nonteaching member' means any person, except a teacher member, who is regularly
employed for full-time service by: (a) Any county board of education; (b) the State Board of
Education; (c) the West Virginia Board of Regents [abolished]; or (d) the Teachers Retirement
Board.
(17) 'Pick-up service' means service that a member was entitled to, but which the employer
has not withheld or paid for.
(18) 'Plan year' means the twelve-month period commencing on the first day of July and
ending the following thirtieth day of June of any designated year.
(19) 'Present member' means a present teacher who is a member of the retirement system.
(20) 'Present teacher' means any person who was a teacher within the thirty-five years
beginning the first day of July, one thousand nine hundred thirty-four, and whose membership in the
retirement system is currently active.
(21) 'Prior service' means all service as a teacher completed prior to the first day of July, one
thousand nine hundred forty-one, and all service of a present member who was employed as a
teacher, and did not contribute to a retirement account because he or she was legally ineligible for
membership during the service.
(22) 'Public schools' means all publicly supported schools, including colleges and
universities in this state.
(23) 'Refund beneficiary' means the estate of a deceased contributor or a person he or she
has nominated as beneficiary of his or her contributions by written designation duly executed and
filed with the retirement board.
(24) 'Refund interest' means interest compounded, according to the formula established in
legislative rules, series seven of the Consolidated Public Retirement Board.
(25) 'Regular interest' means interest at four percent compounded annually, or a higher
earnable rate if set forth in the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(26) 'Regularly employed for full-time service' means employment in a regular position or
job throughout the employment term regardless of the number of hours worked or the method of pay.
(27) '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 years; or (b)
the calendar year in which the member retires or ceases covered employment under the system after
having attained the age of seventy and one half years.
(28) 'Retirement system' means the State Teachers Retirement System provided for in this
article.
(29) 'Teacher member' means the following persons, if regularly employed for full-time
service: (a) Any person employed for instructional service in the public schools of West Virginia;
(b) principals; (c) public school librarians; (d) superintendents of schools and assistant county
superintendents of schools; (e) any county school attendance director holding a West Virginia
teacher's certificate; (f) the Executive Secretary of the Retirement Board; (g) members of the
research, extension, administrative or library staffs of the public schools; (h) the State Superintendent
of Schools, heads and assistant heads of the divisions under his or her supervision, or any other
employee under the State Superintendent performing services of an educational nature; (i) employees
of the State Board of Education who are performing services of an educational nature; (j) any person
employed in a nonteaching capacity by the State Board of Education, any county board of education,
the State Department of Education or the Teachers Retirement Board, if that person was formerly
employed as a teacher in the public schools; (k) all classroom teachers, principals and educational
administrators in schools under the supervision of the Division of Corrections, the Division of Health
or the Division of Human Services; and (l) employees of the State Board of School Finance, if that
person was formerly employed as a teacher in the public schools.
(30) 'Total service' means all service as a teacher while a member of the retirement system
since last becoming a member and, in addition thereto, credit for prior service, if any.
The masculine gender shall be construed so as to include the feminine.
Age in excess of seventy years shall be considered to be seventy years.
§18-7A-14. Contributions by members.
(a) At the end of each month every member of the retirement system shall contribute six
percent of that member's monthly earnable compensation gross salary to the Retirement Board:
Provided, That any member employed by the West Virginia Board of Directors of the State College
System or the Board of Trustees of the University System at an institution of higher education under
its control shall contribute on the member's full earnable compensation, unless otherwise provided
in section fourteen-a of this article.
(b) Annually, the contributions of each member shall be credited to the member's account
in the Teachers Accumulation Fund. The contributions shall be deducted from the salaries of the
members as herein prescribed in this section, and every member shall be deemed considered to have
given consent to such the deductions. No deductions, however, shall be made from the earnable
compensation of any member who retired because of age or service, and then resumed service unless
as provided in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable under this article, shall equal
annually the total deductions from the earnable compensation of members required by this section.
Beginning the first day of July, one thousand nine hundred ninety-four, the rate shall be seven and
one-half percent; beginning on the first day of July, one thousand nine hundred ninety-five, the rate
shall be nine percent; beginning on the first day of July, one thousand nine hundred ninety-six, the
rate shall be ten and one-half percent; beginning on the first day of July, one thousand nine hundred
ninety-seven, the rate shall be twelve percent; beginning on the first day of July, one thousand nine
hundred ninety-eight, the rate shall be thirteen and one-half percent; and beginning on the first day
of July, one thousand nine hundred ninety-nine and thereafter, the rate shall be fifteen percent.
(d) Payment by an employer to a member of the sum specified in the employment contract
minus the amount of the employee's deductions shall be deemed considered to be a full discharge
of the employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the Retirement Board or with the employer to be
forwarded to the Retirement Board an enrollment form showing the contributor's date of birth and
other data needed by the Retirement Board.
§18-7A-17. Statement and computation of teachers' service; qualified military service.
(a) Under rules adopted by the Retirement Board, each teacher shall file a detailed statement
of his or her length of service as a teacher for which he or she claims credit. The Retirement Board
shall determine what part of a year is the equivalent of a year of service. In computing the service,
however, it shall credit no period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of service performed in any calendar
year.
(b) For the purpose of this article, the Retirement Board shall grant prior service credit to new
entrants and other members of the retirement system for service in any of the Armed Forces of the
United States in any period of national emergency within which a federal Selective Service Act was
in effect. For purposes of this section, 'Armed Forces' includes Women's Army Corps, women's
appointed volunteers for emergency service, Army Nurse Corps, SPARS, Women's Reserve and
other similar units officially parts of the military service of the United States. The military service
is considered equivalent to public school teaching, and the salary equivalent for each year of that
service is the actual salary of the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military service shall not exceed ten years
for any one member, nor shall it exceed twenty-five percent of total service at the time of retirement.
Notwithstanding the preceding provisions of this subsection, contributions, benefits and service
credit with respect to qualified military service shall be provided in accordance with Section 414(u)
of the Internal Revenue Code. For purposes of this section, 'qualified military service' has the same
meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to
determine all questions and make all decisions relating to this section and, pursuant to the authority
granted to the Retirement Board in section one, article ten-d, chapter five of this code, may
promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u)
of the Internal Revenue Code. No military service credit may be used in more than one retirement
system administered by the Consolidated Public Retirement Board.
(c) For service as a teacher in the employment of the federal government, or a state or
territory of the United States, or a governmental subdivision of that state or territory, the Retirement
Board shall grant credit to the member: Provided, That the member shall pay to the system double
the amount he or she contributed during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be determined by the Retirement Board.
The interest shall be deposited in the reserve fund and service credit granted at the time of retirement
shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in
West Virginia. Any transfer of out-of-state service, as provided in this article, shall not be used to
establish eligibility for a retirement allowance and the Retirement Board shall grant credit for the transferred service as additional service only: Provided, however, That a transfer of out-of-state
service is prohibited if the service is used to obtain a retirement benefit from another retirement
system: Provided further, That salaries paid to members for service prior to entrance into the
retirement system shall not be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be denied on the basis of
minimum income rules promulgated by the teachers retirement board: Provided, That the member
or retired member shall pay to the system the amount he or she would have contributed during the
year or years of public school service for which credit was denied as a result of the minimum income
rules of the Teachers Retirement Board.
(e) No members shall be considered absent from service while serving as a member or
employee of the Legislature of the state of West Virginia during any duly constituted session of that
body or while serving as an elected member of a county commission during any duly constituted
session of that body.
(f) No member shall be considered absent from service as a teacher while serving as an
officer with a statewide professional teaching association, or who has served in that capacity, and
no retired teacher, who served in that capacity while a member, shall be considered to have been
absent from service as a teacher by reason of that service: Provided, That the period of service credit
granted for that service shall not exceed ten years: Provided, however, That a member or retired
teacher who is serving or has served as an officer of a statewide professional teaching association
shall make deposits to the Teachers Retirement Board, for the time of any absence, in an amount
double the amount which he or she would have contributed in his or her regular assignment for a like
period of time.
(g) The Teachers Retirement Board shall grant service credit to any former or present
member of the West Virginia Public Employees Retirement System who has been a contributing
member for more than three years, for service previously credited by the Public Employees
Retirement System and: (1) Shall require the transfer of the member's contributions to the Teachers
Retirement System; or (2) shall require a repayment of the amount withdrawn any time prior to the member's retirement: Provided, That there shall be added by the member to the amounts transferred
or repaid under this subsection an amount which shall be sufficient to equal the contributions he or
she would have made had the member been under the Teachers Retirement System during the period
of his or her membership in the Public Employees Retirement System plus interest at a rate to be
determined by the Board compounded annually from the date of withdrawal to the date of payment.
The interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary parochial school, located within
this state and fully accredited by the West Virginia Department of Education, the Retirement Board
shall grant credit to the member: Provided, That the member shall pay to the system double the
amount contributed during the first full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined by the Retirement Board. The interest
shall be deposited in the reserve fund and service granted at the time of retirement shall not exceed
the lesser of ten years or fifty percent of the member's total service as a teacher in the West Virginia
public school system. Any transfer of parochial school service, as provided in this section, may not
be used to establish eligibility for a retirement allowance and the Board shall grant credit for the
transfer as additional service only: Provided, however, That a transfer of parochial school service
is prohibited if the service is used to obtain a retirement benefit from another retirement system.
(i) Active members who previously worked in CETA (Comprehensive Employment and
Training Act) may receive service credit for time served in that capacity: Provided, That in order
to receive service credit under the provisions of this subsection the following conditions must be
met: (1) The member must have moved from temporary employment with the participating employer
to permanent full-time employment with the participating employer within one hundred twenty days
following the termination of the member's CETA employment; (2) the Board must receive evidence
that establishes to a reasonable degree of certainty as determined by the Board that the member
previously worked in CETA; and (3) the member shall pay to the Board an amount equal to the
employer and employee contribution plus interest at the amount set by the Board for the amount of
service credit sought pursuant to this subsection: Provided, however, That the maximum service
credit that may be obtained under the provisions of this subsection is two years: Provided further, That a member must apply and pay for the service credit allowed under this subsection and provide
all necessary documentation by the thirty-first day of March, two thousand three: And provided
further, That the Board shall exercise due diligence to notify affected employees of the provisions
of this subsection.
(j) If a member is not eligible for prior service credit or pension as provided in this article,
then his or her prior service shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or her former membership
rights as specified in section thirteen of this article only in case he or she has served two years since
his or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l), inclusive, of this section, the
Board shall verify as soon as practicable the statements of service submitted. The Retirement Board
shall issue prior service certificates to all persons eligible for the certificates under the provisions of
this article. The certificates shall state the length of the prior service credit, but in no case shall the
prior service credit exceed forty years.
(m) Notwithstanding any provision of this article to the contrary, when a member is or has
been elected to serve as a member of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her teaching or administrative duties,
the time served in discharge of his or her duties of the legislative office are credited as time served
for purposes of computing service credit: Provided, That the Board may not require any additional
contributions from that member in order for the Board to credit him or her with the contributing
service credit earned while discharging official legislative duties: Provided, however, That nothing
herein in this section may be construed to relieve the employer from making the employer
contribution at the member's regular salary rate or rate of pay from that employer on the contributing
service credit earned while the member is discharging his or her official legislative duties. These
employer payments shall commence as of the first day of June, two thousand: Provided further, That
any member to which the provisions of this subsection apply may elect to pay to the Board an
amount equal to what his or her contribution would have been for those periods of time he or she was
serving in the Legislature. The periods of time upon which the member paid his or her contribution shall then be included for purposes of determining his or her final average salary as well as for
determining years of service: And provided further, That a member utilizing using the provisions
of this subsection is not required to pay interest on any contributions he or she may decide to make.
(n) The Teachers Retirement Board shall grant service credit to any former member of the
State Police Death, Disability and Retirement System who has been a contributing member for more
than three years, for service previously credited by the State Police Death, Disability and Retirement
System; and: (1) Shall require the transfer of the member's contributions to the Teachers Retirement
System; or (2) shall require a repayment of the amount withdrawn any time prior to the member's
retirement: Provided, That the member shall add to the amounts transferred or repaid under this
paragraph an amount which is sufficient to equal the contributions he or she would have made had
the member been under the Teachers Retirement System during the period of his or her membership
in the State Police Death, Disability and Retirement System plus interest at a rate of six percent to
be determined by the Board compounded annually from the date of withdrawal to the date of
payment. The interest paid shall be deposited in the reserve fund.
§18-7A-23a. Terminal benefits.
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 period 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 each individual who has contributed, or will contribute in the future,
to the teachers retirement system, including each retirant.
(a) This section provides for the payment of the balance in the a retired member's account
to paid in the manner described herein in this section 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 the 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 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 retired member has nominated 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 the 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 are retroactive to all members who entered retirement
status on or after the ninth day of June, two thousand.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who has had thirty-five years of
total service as a teacher in West Virginia, regardless of age, shall be is eligible for an annuity. No
new entrant nor present member shall be is eligible for an annuity, however, if either has less than
five years of service to his or her credit.
(b) Any member who has attained the age of fifty-five years and who has served thirty years
as a teacher in West Virginia shall be is eligible for an annuity.
(c) Any member who has served at least thirty but less than thirty-five years as a teacher or
nonteaching member in West Virginia and is less than fifty-five years of age shall be is eligible for
an annuity, but the same annuity shall be the reduced actuarial equivalent of the annuity the member
would have received if such the member were age fifty-five at the time such annuity was applied for.
(d) The request for any annuity shall be made by the member in writing to the Retirement
Board, but in case of retirement for disability, the written request may be made by either the member
or the employer.
(e) A member shall be is eligible for annuity for disability if he or she satisfies the conditions
in either subdivision (a) or subdivision (b) of this section and meets the conditions of subdivision
(c) of this section as follows:
(a) (1) His or her service as a teacher or nonteaching member in West Virginia must total at
least ten years, and service as a teacher or nonteaching member must have been terminated because
of disability, which disability must have caused absence from service for at least six months before
his or her application for disability annuity is approved.
(b) (2) His or her service as a teacher or nonteaching member in West Virginia must total at
least five years, and service as a teacher or nonteaching member must have been terminated because
of disability, which disability must have caused absence from service for at least six months before
his or her application for disability annuity is approved and said the disability is a direct and total
result of an act of student violence directed toward the member.
(c) (3) An examination by a physician or physicians selected by the Retirement Board must
show that the member is at the time mentally or physically incapacitated for service as a teacher, that for such that service the disability is total and likely to be permanent, and that he or she should be
retired in consequence thereof of the disability.
(f) Continuance of the disability of the retired teacher member shall be established by medical
examination, as prescribed in the preceding paragraph subdivision three, subsection (1) of this
section, annually for five years after retirement, and thereafter at such times as required by the
Retirement Board may require. Effective the first day of July, one thousand nine hundred ninety-
eight, a member who has retired because of a disability may select an option of payment under the
provisions of section twenty-eight of this article: Provided, That any option selected under the
provisions of section twenty-eight of this article shall be in all respects the actuarial equivalent of
the straight life annuity benefit the disability retiree receives or would receive if the options under
section twenty-eight of this article were not available and that no beneficiary or beneficiaries of the
disability annuitant may receive a greater benefit, nor receive any benefit for a greater length of time,
than such the beneficiary or beneficiaries would have received had the disability retiree not made any
election of the options available under said section twenty-eight. In determining the actuarial
equivalence, the Board shall take into account the life expectancies of the member and the
beneficiary: Provided, however, That the life expectancies may at the discretion of the Board be
established by an underwriting medical director of a competent insurance company offering
annuities. Payment of the disability annuity provided in this article shall cease immediately if the
Retirement Board finds that the disability of the retired teacher no longer exists, or if the retired
teacher refuses to submit to medical examination as required by this section.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the Retirement Board effective before the
first day of July, one thousand nine hundred eighty, shall be paid the annuities which were approved
by the Retirement Board.
(b) Annuities approved by the Board effective after the thirtieth day of June, one thousand
nine hundred eighty, shall be computed as provided herein in this section.
(c) Upon establishment of eligibility for a retirement allowance, a member shall be granted
an annuity which shall be the sum of the following:
(a) (1) Two percent of the member's average salary multiplied by his or her total service
credit as a teacher. In this paragraph subdivision 'average salary' shall mean means the average of
the highest annual salaries received by the member during any five years contained within his or her
last fifteen years of total service credit: Provided, That the highest annual salary used in this
calculation for certain members employed by the West Virginia Higher Education Policy
Commission under its control shall be four thousand eight hundred dollars, as provided by section
fourteen-a of this article and chapter;
(b) (2) The actuarial equivalent of the voluntary deposits of the member in his or her
individual account up to the time of his or her retirement, with regular interest.
(d) The disability annuities of all teachers retired for disability shall be based upon a
disability table prepared by a competent actuary approved by the Retirement Board.
(e) Upon the death of an annuitant who qualified for an annuity as the surviving spouse of
an active member or because of permanent disability, the estate of the deceased or beneficiary
designated for such purpose shall be paid the difference, if any, between the member's contributions
with regular interest thereon, and the sum of the annuity payments. Upon the death of a spouse who
was named as the member's survivor, a retirant may elect an annuity option approved by the
Retirement Board in an amount adjusted on a fair basis to be of equal actuarial value as the annuity
prospectively in effect relative to the surviving member at the time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments. In computing the monthly
payments, fractions of a cent shall be deemed considered a cent. The monthly payments shall cease
with the payment for the month within which the beneficiary dies, and shall begin with the payment
for the month succeeding the month within which the annuitant became eligible under this article
for the annuity granted; in no case, however, shall an annuitant receive more than four monthly
payments which are retroactive after the Board receives his or her application for annuity. Beginning
with the first day of July, one thousand nine hundred ninety-four, the The monthly payments shall
be made on the twenty-fifth day of each month, except the month of December, when the payment
shall be made on the eighteenth day of December. If the date of payment falls on a holiday, Saturday
or Sunday, then the payment shall be made on the preceding workday.
(g) In case the Retirement Board receives data affecting the approved annuity of a retired
teacher, the annuity shall be changed in accordance with the data, the change being effective with
the payment for the month within which the Board received the new data.
(h) Any person who has attained the age of sixty-five and who has served at least twenty-five
years as a teacher prior to the first day of July, one thousand nine hundred forty-one, shall be is
eligible for prior service credit and for prior service pensions as prescribed in this section.
§18-7A-28e. Limitations on benefit increases.
(a) The Legislature shall not increase any existing benefits or create any new benefits for any
retirees or beneficiaries currently receiving monthly benefit payments from the retirement system,
other than an increase in benefits or new benefits effected by operation of law in effect on the
effective date of this article, in an amount that would exceed more than one percent of the accrued
actuarial liability of the system as of the last day of the preceding fiscal year as determined in the
annual actuarial valuation for each plan completed for the Consolidated Public Retirement Board
as of the first day of the following fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments under the retirement system, other than
an increase in benefits or new benefits effected by operation of law in effect on the effective date of
this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia
state sponsored pension systems as calculated in the annual actuarial valuation for each plan during
any fiscal year, additional unfunded actuarial accrued liability of that pension system shall be fully
amortized over no more than the five consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the Consolidated Public Retirement Board.
Following the receipt of the certification of additional actuarial accrued liability, the Governor shall
submit the amount of the amortization payment each year for the retirement system as part of the
annual budget submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation
of annuities or benefits for active members due to retirement, death or disability as provided for in the retirement system shall not be amended in such a manner as to increase any existing benefits or
to provide for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand
thirty-four: Provided, however, that if bonds are issued pursuant to article eight, chapter twelve of
this code, the provisions of this section shall not terminate while any of the bonds are outstanding.
§18-7A-34. Loans to members.
(a) A An actively contributing member of the retirement system upon written application may
borrow from his or her individual account in the Teachers Accumulation Fund, subject to these
restrictions:
(1) Loans shall be made in multiples of ten dollars, the minimal loan being one hundred
dollars and the maximum being eight thousand dollars: Provided, That the maximum amount of any
loan when added to the outstanding balance of all other loans shall not exceed the lesser of the
following: (A) Fifty Eight thousand dollars reduced by the excess (if any) of the highest outstanding
balance of loans during the one-year period ending on the day before the date on which the loan is
made, over the outstanding balance of loans to the member on the date on which the loan is made;
or (B) fifty percent of the member's contributions to his or her individual account in the Teachers
Accumulations Fund: Provided, however, That if the total amount of loaned money outstanding
exceeds forty million dollars, the maximum shall not exceed three thousand dollars until the
Retirement Board determines that loans outstanding have been reduced to an extent that additional
loan amounts are again authorized.
(2) Interest charged on the amount of the loan shall be six percent per annum, or a higher rate
as set by the Retirement Board: Provided, That interest charged shall be commercially reasonable
in accordance with the provisions of section 72(p)(2) of the Internal Revenue Code, and the federal
regulations issued thereunder. If repayable in installments, the interest shall not exceed the annual
rate so established upon the principal amount of the loan, for the entire period of the loan, and such
charge shall be added to the principal amount of the loan. The minimal interest charge shall be for
six months.
(3) No member shall be is eligible for more than one outstanding loan at any time.
(4) If a refund is payable to the borrower or his or her beneficiary before he or she repays the
loan with interest, the balance due with interest to date shall be deducted from such the refund.
(5) From his or her monthly salary as a teacher or a nonteacher the member shall pay the loan
and interest by deductions which will pay the loan and interest in substantially level payments in not
more than sixty nor less than six months. Upon notice of loan granted and payment due, the
employer shall be is responsible for making such the salary deductions and reporting them to the
Retirement Board. At the option of the Retirement Board, loan deductions may be collected as
prescribed herein for the collection of members' contribution, or may be collected through issuance
of warrant by employer. If the borrower decides to make loan payments while not paid for service
as a teacher, is no longer employed as a teacher or nonteaching member, the borrower must make
monthly loan payments directly to the Consolidated Public Retirement Board and the Retirement
Board must accept such the payments.
(6) The entire unpaid balance of any loan, and interest due thereon, shall, at the option of the
Retirement Board, become due and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events of default: (A) Any payment
of principal and accrued interest on a loan remains unpaid after the same it becomes due and payable
under the terms of the loan or after such the grace period as may be established in the discretion of
the Retirement Board; (B) the borrowing member attempts to make an assignment for the benefit of
creditors of his or her refund or benefit under the retirement system; or (C) any other event of default
set forth in rules promulgated by the Retirement Board in accordance with the authority granted
pursuant to section one, article ten-d, chapter five of this code: Provided, That any refund or offset
of an unpaid loan balance shall be made only at the time the member is entitled to receive a
distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and shall be made upon such
additional terms as to default, prepayment, security, and otherwise as the Retirement Board may
determine.
(8) Notwithstanding anything herein to the contrary, the loan program authorized by this
section shall comply with the provisions of Section 72(p)(2) and Section 401 of the Internal Revenue Code, and the federal regulations issued thereunder, and accordingly, the Retirement Board is
authorized to: (A) Apply and construe the provisions of this section and administer the plan loan
program in such a manner as to comply with the provisions of Section 72(p)(2) and Section 401 of
the Internal Revenue Code and the federal regulations issued thereunder; (B) adopt plan loan policies
or procedures consistent with these federal law provisions; and (C) take such actions as it deems
necessary or appropriate to administer the plan loan program created hereunder in accordance with
these federal law provisions. The Retirement Board is further authorized in connection with the plan
loan program to take any actions that may at any time be required by the Internal Revenue Service
regarding compliance with the requirements of Section 72(p)(2) or Section 401 of the Internal
Revenue Code, and the federal regulations issued thereunder, notwithstanding any provision in this
article to the contrary.
(b) Notwithstanding anything in this article to the contrary, the loan program authorized by
this section shall not be available to any teacher or nonteacher who becomes a member of the
Teachers Retirement System on or after the first day of July, two thousand five.
§18-7A-39. Employee Pension and Health Care Benefits Fund.
(a) There is hereby created in the State Treasury a general revenue account known as the
'Employee Pension and Health Care Benefits Fund'. Funds in this account may be invested in the
manner permitted by the provisions of article six, chapter twelve of this code, with interest income
a proper credit to this Fund.
(b) Effective the first day of July, two thousand five, any savings realized from the reduction
in employer contributions for current retirement benefits, being the difference between the required
employer contributions that would have been required into the Teachers' Defined Contribution
System as in effect immediately prior to the first day of July, two thousand five and the required
employer contribution for normal cost into the State Teachers Retirement System on and after the
first day of July, two thousand five, shall be deposited into the Employee Pension and Health Care
Benefits Fund. The Consolidated Public Retirement Board shall determine the annual amount of the
savings based on the annual actuarial valuation for the plan prepared as of the first day of July following the end of each fiscal year and certify the amount to the Governor by the thirty-first day
of January of that fiscal year.
(c) Moneys in the Employee Pension and Health Care Benefits Fund are to be used and
expended to pay for the cost of unfunded health care benefits or unfunded pension benefits, or to be
transferred into the Pension Liability Redemption Fund created in section eight, article eight, chapter
twelve of this code.
§18-7A-40. Higher education employees.
Nothing in this article or article seven-b of this chapter shall be construed:
(1) To be in conflict with section four-a, article twenty-three, chapter eighteen of this code;
or
(2) To affect the membership of higher education employees who are currently members of
either the State Teachers Retirement System created in this article or the Teachers' Defined
Contribution Retirement System created in article seven-b of this chapter.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly require a different meaning:
(1) 'Defined contribution system' or 'system' means the Teachers' Defined Contribution
Retirement System created and established by this article:
(2) 'Existing retirement system' means the State Teachers Retirement System established in
article seven-a of this chapter;
(3) 'Existing employer' means any employer who employed or employs a member of the
existing retirement system;
(4) 'Consolidated board' or 'board' means the Consolidated Public Retirement Board created
and established pursuant to article ten-d, chapter five of this code;
(5) 'Member' or 'employee' means the following persons, if regularly employed for full-time
service: (A) Any person employed for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents of schools and assistant county
superintendents of schools; (E) any county school attendance director holding a West Virginia teacher's certificate; (F) the executive secretary of the retirement board; (g) (F) members of the
research, extension, administrative or library staffs of the public schools; (h) (G) the State
Superintendent of Schools, heads and assistant heads of the divisions under his or her supervision,
or any other employee under the State Superintendent performing services of an educational nature;
(i) (H) employees of the State Board of Education who are performing services of an educational
nature; (j) (I) any person employed in a nonteaching capacity by the State Board of Education, any
county board of education or the State Department of Education or the teachers retirement board, if
that person was formerly employed as a teacher in the public schools; (k) (J) all classroom teachers,
principals and educational administrators in schools under the supervision of the Division of
Corrections and the Department of Health and Human Resources; (l) (K) any person who is regularly
employed for full-time service by any county board of education or the State Board of Education or
the teachers retirement board; and (m) (L) the administrative staff of the public schools including
deans of instruction, deans of men and deans of women, and financial and administrative secretaries;
(6) 'Regularly employed for full-time service' means employment in a regular position or job
throughout the employment term regardless of the number of hours worked or the method of pay;
(7) 'Year of employment service' means employment for at least ten months, a month being
defined as twenty employment days: Provided, That no more than one year of service may be
accumulated in any twelve-month period;
(8) 'Employer' means the agency of and within the State of West Virginia which has
employed or employs a member;
(9) 'Compensation' means the full compensation actually received by members for service
whether or not a part of the compensation is received from other funds, federal or otherwise, than
those provided by the state or its subdivisions;
(10) 'Public schools' means all publicly supported schools, including normal schools,
colleges and universities in this state;
(11) 'Member contribution' means an amount reduced from the employee's regular pay
periods, and deposited into the member's individual annuity account within the Defined Contribution
Retirement System;
(12) 'Employer contribution' means an amount deposited into the member's individual
annuity account on a periodic basis coinciding with the employee's regular pay period by an
employer from its own funds;
(13) 'Annuity account' or 'annuity' means an account established for each member to record
the deposit of member contributions and employer contributions and interest, dividends or other
accumulations credited on behalf of the member;
(14) 'Retirement' means a member's withdrawal from the active employment of a
participating employer and completion of all conditions precedent to retirement;
(15) 'Permanent, total disability' means a mental or physical incapacity requiring the absence
from employment service for at least six months: Provided, That the incapacity is shown by an
examination by a physician or physicians selected by the Board: Provided, however, That for
employees hired on or after the first day of July, two thousand five, permanent, total disability means
an inability to engage in substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death, or has lasted or can be expected to last
for a continuous period of not less than twelve months and the incapacity is so severe that the
member is likely to be permanently unable to perform the duties of the position the member occupied
immediately prior to his or her disabling injury or illness.
(16) 'Plan year' means the twelve-month period commencing on the first day of July of any
designated year and ending on the following thirtieth day of June;
(17) '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-one and one-half years;
or (b) the calendar year in which the member retires or otherwise ceases employment with a
participating employer after having attained the age of seventy and one-half years; and
(18) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been
amended.
§18-7B-7. Participation in Teachers' Defined Contribution Retirement System; limiting
participation in existing teachers retirement system.
(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as
provided for in this section, the Teachers' Defined Contribution Retirement System shall be the
single retirement program for all new employees whose employment commences on or after that date
and all new employees shall be required to participate. No additional new employees except as may
be provided for in this section may be admitted to the existing Teachers Retirement System.
(b) Members of the existing Teachers Retirement System whose employment continues
beyond the first day of July, one thousand nine hundred ninety-one, and those whose employment
was terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a
reduction in force are not affected by subsection (a) of this section and shall continue to contribute
to and participate in the existing Teachers Retirement System without a change in plan provisions
or benefits.
(c) Any person who was previously a member of the Teachers Retirement System and who
left participating employment before the creation of the Defined Contribution System on the first day
of July, one thousand nine hundred ninety-one, and who later returned to participating employment
after the effective date of this section has the right to elect to return to the existing Teachers
Retirement System or to elect to participate in the Defined Contribution System. The election shall
be made at the time of his or her reemployment, is irrevocable and shall be made upon forms
approved by and filed with the West Virginia Consolidated Public Retirement Board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one,
a member of the existing Teachers Retirement System who left participating employment before the
creation of the Teachers' Defined Contribution Retirement System on the first day of July, one
thousand nine hundred ninety-one, and who later returned to participating employment after that date
and who was precluded from returning to the existing Teachers Retirement System as a result of
prior provisions of this section, may elect, pursuant to the provisions of this section, readmission to
the existing Teachers Retirement System: Provided, That persons who are eligible to, and who make
the election to, terminate their participation in the Defined Contribution System and to return to
participation in the existing Teachers Retirement System as provided for in this section shall make
the election, on a form approved by and filed with the West Virginia Consolidated Public Retirement Board on or before the thirtieth day of June, two thousand two: Provided, however, That as a
condition of the right of readmission to the existing Teachers Retirement System, persons a person
making the election provided for in this section whose Defined Contribution Account had not, prior
to such election, been divided by a qualified domestic relations order, shall pay an additional
contribution to the existing Teachers Retirement System equal to one and one-half percent of his or
her annual gross compensation earned for each year during which he or she participated in the
Defined Contribution System and shall consent and agree to the transfer of his or her total account
balance in the Defined Contribution System as of the most recent plan valuation immediately
preceding his or her transfer to the existing Teachers Retirement System. For persons a person
making the election provided for in this section whose defined contribution account had, prior to
such the election, previously been divided by a qualified domestic relations order, the cost to such
person to transfer to the existing Teachers Retirement System shall be actuarially determined by the
Consolidated Public Retirement Board. Upon verification of that person's eligibility to return to
participation in the existing Teachers Retirement System and the tender and transfer of funds as
provided for in this subsection, persons a person making this election shall receive service credit for
the time the member participated in the Defined Contribution System as if his or her participation
had been in the existing Teachers Retirement System: Provided further, That the right to terminate
participation in the Defined Contribution System and to resume participation in the existing Teachers
Retirement System as provided for in this section is irrevocable and shall not apply to any person
who, while members a member of the Teachers Retirement System, voluntarily elected to terminate
his or her membership in the Teachers Retirement System and to become a participant in the Defined
Contribution System pursuant to section eight of this article.
(e) Any employee whose employment with an employer was suspended or terminated while
he or she served as an officer with a statewide professional teaching association, is eligible for
readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended
as a result of an approved leave of absence, approved maternity or paternity break in service or any other approved break in service authorized by the Board is eligible for readmission to the existing
retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to
membership in the existing Teachers Retirement System, the Consolidated Public Retirement Board
shall decide the question.
(h) Any individual who is not a 'member' or 'employee' as defined by section two of this
article and any individual who is a leased employee is not eligible to participate in the Teachers'
Defined Contribution System. For purposes of this section, a '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. In all cases in which a question exists
as to whether an individual is eligible for membership in this system, the Consolidated Public
Retirement Board shall decide the question.
(i) Effective the first day of July, two thousand five and continuing through the first day of
two thousand six, any employee of River Valley Child Development Services, Inc., who is a member
of the teachers' defined contribution retirement system may elect to withdraw from membership and
join the private pension plan provided by River Valley Child Development Services, Inc.
(j) River Valley Child Development Services, Inc., and its successors in interest shall provide
for their employees a pension plan in lieu of the teachers' defined contribution retirement system on
or before the first day of July, two thousand five, and continuing thereafter during the existence of
the River Valley Child Development Services, Inc., and its successors in interest. All new employees
hired after the thirtieth day of June, two thousand five, shall participate in the pension plan in lieu
of the teachers' defined contribution retirement system.
(k) The administrative body of River Valley Child Development Services, Inc., shall, on or
before the first day of June, two thousand five, give written notice to each employee who is a
member of the teachers' defined contribution retirement system of the option to withdraw from or
remain in the system. The notice shall include a copy of this section and a statement explaining the
member's options regarding membership. The notice shall include a statement in plain language
giving a full explanation and actuarial projection figures, prepared by an independent actuary, in support of the explanation regarding the individual member's current account balance, vested and
nonvested, and his or her projected return upon remaining in the teacher's defined contribution
retirement system until retirement, disability or death, in comparison with the projected return upon
withdrawing from the teachers' defined contribution retirement system and joining a private pension
plan provided by River Valley Child Development Center, Inc., and remaining therein until
retirement, disability or death. The administrative body shall keep in its records a permanent record
of each employee's signature confirming receipt of the notice.
§18-7B-7a. Plan closed to persons employed for the first time after June, 2005; former
employees.
The Retirement System created and established in this article shall be closed and no new
members accepted therein in the system after the thirtieth day of June, two thousand five.
Notwithstanding the provisions of sections seven and eight of this article, all persons who are
regularly employed for full-time service as a member or an employee whose initial employment
commences after the thirtieth day of June, two thousand five, shall become a member of the State
Teachers' Retirement System created and established in article seven-a of this chapter: Provided,
That any person rehired after the thirtieth day of June, two thousand five, shall become a member
of the Teachers' Defined Contribution Retirement System created and established in this article, or
of the Teachers Retirement System created and established in article seven-a of this chapter,
depending upon which system he or she last contributed to while he or she was employed with an
employer mandating membership and contributions to one of those plans: Provided, however, That
if, and only if, the Teachers' Defined Contribution Retirement System is merged and consolidated
with the Teachers Retirement System pursuant to the provisions of article seven-c of this chapter,
then all employees shall be a member of the Teachers Retirement System as of the first day of July,
two thousand six, as provided in article seven-c of this chapter.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the Defined Contribution System shall contribute four
and one-half percent of his or her gross compensation by salary reduction deduction. Such The
salary reductions deductions shall be made by the employer at the normal payroll intervals and shall be paid to the Teachers' Defined Contribution Retirement System within fifteen days of the end of
the pay period: Provided, That the Board may require any employer to make the payments within
such shorter period as it may determine, upon at least sixty days notice to the employer, if the Board
determines the employer has the technological capacity to transfer the funds within the shorter
period. The employer payments shall be remitted by the Board within five working days to the
private pension, insurance, annuity, mutual fund, or other qualified company or companies
designated by the Board to administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to an account or accounts
established in the name of the member and held in trust for the benefit of the member. An account
agreement shall be issued to each member setting forth the terms and conditions under which
contributions are received, and the investment and retirement options available to the member. The
Board shall promulgate by the thirtieth day of June, one thousand nine hundred ninety-one propose
for legislative approval in accordance with article three, chapter twenty-nine-a of this code, pursuant
to section six of this article, rules defining the minimum requirements for the investment and
retirement options to be provided to the members.
The consolidated public employees retirement board shall study the feasibility of employees
making personal contributions to the defined contribution system in addition to those required by
this section and the impact of the United States Internal Revenue Code of one thousand nine hundred
eighty-six, as amended, upon such contributions. The results of said study and recommendations for
legislation to authorize such additional payments shall be presented to the committee on pensions
and retirement of each house of the Legislature on or before the first day of October, one thousand
nine hundred ninety-six.
(c) Such rules The legislative rules proposed by the Board, to the extent not inconsistent with
the applicable provisions of the Internal Revenue Code of the United States, shall provide for varied
retirement options including, but not limited to:
(1) Lump sum or periodic payment distributions;
(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;
(4) Variable annuities which gradually increase monthly retirement payments: Provided,
That said increased payments are funded solely by the existing current value of the member's
account at the time the member's retirement payments commencement commence and not, to any
extent, in a manner which would require additional employer or employee contributions to any
member's account after retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can be made to members from their
annuity account balances prior to having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer terminates after the
completion of six complete years of employment service shall be is eligible to terminate his or her
annuity account and receive a distribution from the member's annuity account, in an amount equal
to the member's contribution plus one third of the employer contributions and any earnings thereon.
Any member whose employment with a participating employer terminates after the completion of
nine complete years of employment service shall be is eligible to terminate his or her annuity account
and receive a distribution from the member's annuity account, in an amount equal to the member's
contribution plus two thirds of the employer's contributions and any earnings thereon. Any member
whose employment with a participating employer terminates after the completion of twelve complete
years of employment service shall be is eligible to terminate his or her annuity account and receive
a distribution of all funds contributed and accumulated in his or her annuity account. Any member
whose employment with a participating employer terminates prior to the completion of six complete
years of employment service shall be is eligible to terminate his or her annuity account and receive
a distribution from the member's annuity account, in an amount equal to the member's contribution
plus any earnings thereon: Provided, That on the death or permanent, total disability of any member,
that member shall be is eligible to terminate his or her annuity account and receive all funds
contributed to or accumulated in his or her annuity account.
(b) (1) Upon termination of employment, regardless of whether the member has taken a
distribution of all or a portion of his or her vested account, the The remaining balance, if any, in the
member's employer account after the distribution that is not vested shall be remitted and paid into a suspension account, hereby created, to be administered by the Board. The Board shall promulgate
propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this
code rules regarding the distribution of any balance in the special account created by this section:
Provided, That any funds in the account shall be used solely for the purpose of reducing employer
contributions in future years.
(2) Any account balances remitted to the suspension account herein shall be maintained by
the Board in said the suspension account in the name of the terminated employee for a period of five
years following initial remittance to the suspension account the member's termination of
employment. For each said terminated employee at the culmination of the aforesaid five-year period,
the Board shall certify in writing to each contributing employer the amount of the account balances
balance plus earnings thereon attributable to each separate contributing employers employer's
previously terminated employees' accounts which have employee's account which has been
irrevocably forfeited due to the elapse of a five-year period since termination pursuant to section
sixteen of this article.
(c) Upon certification to the several contributing employers of the aggregate account balances
plus earnings thereon which have been irrevocably forfeited pursuant to this section, the several
contributing employers shall be permitted in the next succeeding fiscal year or years to reduce their
total aggregate contribution requirements pursuant to section seventeen of this article, for the then
current fiscal year by an amount equal to the aggregate amounts irrevocably forfeited and certified
as such to each contributing employer: Provided, That should the participating employer no longer
be contributing to the defined contribution system, any funds in the account shall be paid directly to
the employer.
(d) Upon the utilization use of the amounts irrevocably forfeited to any contributing employer
as a reduction in the then current fiscal year contribution obligation and upon notification provided
by the several contributing employers to the Board of their intention to utilize use irrevocably
forfeited amounts, the Board shall direct the distribution of said the irrevocably forfeited amounts
from the suspension account to be deposited on behalf of the contributing employer to the member
annuity accounts of its then current employees pursuant to section seventeen of this article: Provided, That notwithstanding any provision of this article to the contrary, when a member is or has been
elected to serve as a member of the Legislature, and the proper discharge of his or her duties of
public office require requires that member to be absent from his or her teaching, nonteaching or
administrative duties, the time served in discharge of his or her duties of the legislative office are
credited as time served for purposes of computing service credit, regardless when this time was
served: Provided, however, That the Board may not require any additional contributions from that
member in order for the Board to credit him or her with the contributing service credit earned while
discharging official legislative duties: Provided further, That nothing herein may be construed to
relieve the employer from making the employer contribution at the member's regular salary rate or
rate of pay from that employer on the contributing service credit earned while the member is
discharging his or her official legislative duties. These employer payments shall commence as of
the first day of July, two thousand three: And provided further, That any member to which the
provisions of this subsection apply may elect to pay to the Board an amount equal to what his or her
contribution would have been for those periods of time he or she was serving in the Legislature.
.§18-7B-12a. Federal minimum required distributions.
The requirements of this section apply to any distribution of a member's or beneficiary's
interest and take precedence over any inconsistent provisions of this Defined Contribution System.
This section applies to plan years beginning after the thirty-first day of December, one thousand nine
hundred eighty-six. Notwithstanding anything in this system to the contrary, the payment of benefits
under this article shall be determined and made in accordance with Section 401 (a) (9) of the Internal
Revenue Code and the regulations thereunder, including without limitation the incidental death
benefit provisions of Section 401 (a) (9)(G) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the Defined Contribution System to any member shall be
distributed to him or her not later than the required beginning date, or be distributed to him or her
commencing not later than the required beginning date, in accordance with regulations prescribed
under Section 401 (a) (9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy
of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has commenced pursuant to this section
but before his or her entire interest in the system has been distributed, then the remaining portion of
that interest shall be distributed at least as rapidly as under the method of distribution being used at
the date of his or her death.
(c) If a member dies before distribution to him or her has commenced, then his or her entire
interest in the system shall be distributed by the thirty-first day of December of the calendar year
containing the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary, distributions may be made over the life
of that beneficiary or over a period certain not greater than the life expectancy of the beneficiary
commencing on or before the thirty-first day of December of the calendar year immediately
following the calendar year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the date distributions are required
to begin shall be no later than the later of:
(A) The thirty-first day of December of the calendar year in which the member would have
attained age seventy and one-half years; or
(B) The earlier of (i) The thirty-first day of December of the calendar year in which the
member died; or (ii) the thirty-first day of December of the calendar year following the calendar year
in which the spouse died.
(d) For purposes of this section, any amount paid to a child of a member will be treated as
if it had been paid to the surviving spouse of the member if such the remaining amount becomes
payable to the surviving spouse when the child reaches the age of majority.
§18-7B-16. Years of employment service.
(a) A member of the Defined Contribution System who terminates employment with a
participating employer and does not remove any funds from his or her annuity vested employee and
employer account, or who removes the funds and repays them withing five years after termination,
and becomes reemployed with a participating employer within five years shall retain his or her previous years of employment service for purposes of the provisions of section eleven of this article.
does not forfeit any amounts placed into the suspension account pursuant to section eleven of this
article and they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for vesting purposes under section
eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any legislative rule contained in series
three, involuntary cash-outs to members may not be made after the thirtieth day of June, two
thousand five.
ARTICLE 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT
SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the 'Teachers' Retirement Equity Act'.
§18-7C-2. Legislative findings and purpose.
(a) The Legislature declares that the State of West Virginia and its citizens have always
believed in a strong public education system. The Constitution of this State mandates a thorough and
efficient public education system. The Legislature notes that the quality of our state's education
system is dependent, inter alia, upon the motivation and quality of its teachers and educational
service personnel.
(b) The Legislature finds and declares that the State of West Virginia is privileged to be the
home of some of the best teachers and education service personnel in this nation, and that our
teachers and education service personnel are dedicated and hard working individuals. The
Legislature further finds and declares that our teachers and education service personnel deserve a
retirement program whereby they know in advance what their retirement benefit will be, a defined
benefit retirement program where our teachers and service personnel will not have to bear the risk
of investment performance to receive their full retirement benefit. The Legislature notes that
uncertainty exists in the investment markets, especially in the post September eleventh era, and that placing this risk and uncertainty upon the state in the form of a defined benefit plan will protect and
ensure a meaningful retirement benefit for our teachers and educational service personnel.
(c) The Legislature declares that it is in the best interests of the teachers and public education
in this state and conducive to the fiscal solvency of the Teachers Retirement System that the
Teachers' Defined Contribution Retirement System be merged with the State Teachers Retirement
System.
(d) The Legislature also finds that a fiscally sound retirement program with an ascertainable
benefit aids in the retention and recruitment of teachers and school service personnel, and that the
provisions of this article are designed to accomplish the goals set forth in this section.
(e) The Legislature has studied this matter diligently and in making the determination to
merge the two plans has availed itself of an actuarial study of the proposed merger by the actuary of
the Consolidated Public Retirement Board as well as engaging the service of two independent
actuaries.
(f) The Legislature further finds and declares that members of a defined contribution system
who must bear the attendant market risk and performance of their investments are truly being
provided a significant and greater benefit where the defined contribution system is replaced with a
defined benefit system in which the employer bears the risk of market fluctuations and investment
performance, especially where those members decide through an election process whether to trade
the defined contribution system for a defined benefit system.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Defined Contribution System' means the Teachers' Defined Contribution System created
and established in article seven-b of this chapter.
(2) 'Existing retirement system' or 'State Teachers Retirement System' means the State
Teachers Retirement System created and established in article seven-a of this chapter.
(3) 'Board' means the Consolidated Public Retirement Board created and established in
article ten-d, chapter five of this code and its employees.
(4) 'Member' means and includes any person who has at least one dollar in the Defined
Contribution System.
(5) 'Assets' or 'all assets' means all member contributions, employer contributions and
interest or asset appreciation in a member's Defined Contribution Account, less any applicable fees
as approved by the Board.
(6) 'Salary' or 'annual salary' means the annual contract salary for those persons working in
accordance with an employment contract and in any other event as an annualized amount determined
by multiplying a person's hourly rate of pay by two thousand eighty hours.
(7) 'Date of merger' means, in the event of a positive vote on the merger, the first day of July,
two thousand six.
§18-7C-4. Merger.
(a) On the first day of July, two thousand six, the Teachers' Defined Contribution Retirement
System created and established in this article shall be merged and consolidated with the Teachers
Retirement System created and established in article seven-a of this chapter, pursuant to the
provisions of this article: Provided, That if the majority of the voting members of the Teachers'
Defined Contribution Retirement System do not elect in favor of the merger, then all of the
provisions of this article are void and of no force and effect, and the Defined Contribution System
created and established in article seven-b of this chapter shall continue as the retirement system for
all members in that system as of the thirtieth day of June, two thousand six: Provided, however, that
prior to the merger and consolidation the State shall deposit into the Teachers Retirement System
the amount necessary to cover any additional unfunded actuarial accrued liability which results to
the system on the date that the assets and liabilities of the Teachers Defined Contribution Retirement
System are merged into the Teachers Retirement System as certified by the Consolidated Public
Retirement Board.
(b) If the merger provided for in this article occurs, should any future increase of existing
benefits or the creation of new benefits under the Teachers Retirement System, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
cause any additional unfunded actuarial accrued liability in the State Teachers Retirement Pension System (calculated in an actuarially sound manner) during any fiscal year, such the additional
unfunded actuarial accrued liability of that pension system shall be fully amortized over no more
than the ten consecutive fiscal years immediately following and beginning on the date of any
legislative enactment which provides for the increase in benefits or which provides for new benefits
becomes effective.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two thousand five, the Consolidated
Public Retirement Board shall begin an educational program with respect to the merger of the
Defined Contribution Plan with the State Teachers Retirement System. This education program shall
address, at a minimum, the law providing for the merger, the mechanics of the merger, the election
process, relevant dates and time periods, the benefits, potential advantages and potential
disadvantages if members fail or refuse to approve the merger and thereby elect to remain in the
Defined Contribution System, the benefits, potential advantages and potential disadvantages of
becoming a member of the Teachers Retirement System, potential state and federal tax implications
in general attendant to the various options available to the members and any other pertinent
information considered relevant by the Board. The Board shall provide this information through its
website, by written materials, electronic materials or both written and electronic materials delivered
to each member and by classes or seminars, if, in the best judgment of the Board, the classes and
seminars are required to provide the necessary education for members to make an informed decision
with respect to the election. The Board shall also provide this information through computer
programs, or, at the discretion of the Board, through a program of individual counseling which is
optional on the part of the member, and by any other educational program or programs considered
necessary by the Board.
(b) The Board shall provide each member with a copy of the written or electronic educational
materials and with a copy of the notice of the election. The notice shall provide full and appropriate
disclosure regarding the merger and of the election process, including the date of the election. The
Board shall also cause notice of the election to be published in at least ten newspapers of general
circulation in this state. This notice shall be by Class III legal advertisement published in accordance with the provisions of article three, chapter fifty-nine of this code. The Board shall cause this notice
to be published not later than thirty days prior to the beginning of the election period and not sooner
than sixty days prior to the beginning of the election period.
(c) It is the responsibility of each member of the Defined Contribution Pan to keep the Board
informed of his or her current address. If a member does not keep the Board informed of his or her
current address, he or she is considered to have waived his or her right to receive any information
from the Board with respect to the purposes of this article.
(d) Once the Board has complied with the provisions of this section, every member of the
Defined Contribution Plan is considered to have actual notice of the election and all matters pertinent
to the election.
§18-7C-6. Conversion of assets from defined contribution system to State Teachers
Retirement System.
(a) If a majority of members voting elect to merge the defined contribution system into the
State Teachers Retirement System, the consolidation and merger shall be governed by the provisions
of this article, the Defined Contribution Retirement System shall not exist after the thirtieth day of
June, two thousand six, and all members of that system shall become members of the State Teachers
Retirement System as provided in this article.
(b) Following the election, if the vote is in favor of the merger, the Board shall transfer all
assets in the defined contribution account into the State Teachers Retirement System and members
have the option to pay into the State Teachers Retirement System a one and one-half of one percent
contribution for service in the Defined Contribution Plan being recognized in the State Teachers
Retirement System. This contribution shall be calculated based on the member's salary as of the
thirtieth day of June, two thousand five, and the members attained age on that date, applying both
an annual backward salary scale projection from that date for prior years based upon the salary scale
assumption applied in the actuarial valuation dated the first day of July, two thousand four, for the
Teachers Retirement System and a one year forward salary scale projection for the year ending on
the thirtieth day of June, two thousand six.
(c) The Board shall make available to the members a loan in accordance with the provisions
of section thirty-four, article seven-a of this chapter to be used by the members to pay all or a part
of the one and one-half percent amount established in this section. Notwithstanding any provision
of this code, any rule or any policy of the Board to the contrary, the interest rate on any loan used to
pay the one and one-half percent amount may not exceed seven and one-half percent per annum and
the amount total borrowed for this section may not exceed twelve thousand dollars. In the event a
plan loan is used to pay the one and one-half percent, the Board shall make any necessary actuarial
adjustments at the time the loan is made. The Board shall make this plan loan available for members
until the thirtieth day of June, two thousand seven.
(d) The Board shall develop and institute a payroll deduction program for the repayment of
the plan loan established in this section.
(e) If the merger and consolidation is elected by a majority of those persons voting, as of the
first day of July, two thousand six, the members' contribution rate shall become six percent of his
or her salary or wages and all members who make a contribution into the State Teachers Retirement
System on or after the first day of July, two thousand six, shall be governed by the provisions of
article seven-a of this chapter, subject to the provisions of this article.
(f) In the event a member has withdrawn or cashed out part of his or her defined contribution
plan, that member will not be given credit for those moneys cashed out or withdrawn. The Board
shall make an actuarial determination as to the amount of credit a member loses on the amounts he
or she has withdrawn or cashed out, which shall be expressed as a loss of service credit: Provided,
That a member may repay those amounts he or she previously cashed out or withdrew, along with
interest determined by the Board and receive the same credit as if the withdrawal or cash out never
occurred. If the repayment is five or more years following the cash out or withdrawal, then he or she
must repay any forfeited employer contribution account balance along with interest determined by
the Board in addition to repaying the cash out or withdrawn amount.
(g) Where the member has cashed out of his or her teacher defined contribution plan account
balance after the last day of June, two thousand one, and that member wishes to repurchase defined contribution plan service after the thirtieth day of June, two thousand six, then the member shall
repay the teachers retirement plan.
(h) Any prior service in the State Teachers Retirement System a member may have is not
affected by the provisions of this article.
§18-7C-7. Service credit in State Teachers Retirement System following merger.
Any member transferring all of his or her assets from the defined contribution system to the
State Teachers Retirement System pursuant to the provisions of this article, and who has not made
any withdrawals from his or her defined contribution plan, is entitled to service credit in the State
Teachers Retirement System for each year, or part of a year, as governed by the provisions of article
seven-a of this chapter, the member worked and contributed to the Defined Contribution Plan. Any
member who has made withdrawals or cash outs will receive service credit based upon the amounts
transferred and the Board shall make the appropriate actuarial determination of and the appropriate
actuarial adjustment to the service credit the member will receive.
§18-7C-8. Election; Board may contract for professional services.
(a) The Board shall arrange for and hold an election for the members of the defined
contribution plan on the issue of merging and consolidating the Defined Contribution Plan into the
State Teachers Retirement Plan with the result being that, if a majority of the members casting
ballots vote in the positive on the issue, all members of the Defined Contribution Plan will transfer,
or have transferred, all assets held by them or on their behalf in the Defined Contribution Plan to,
and they shall become members of and be entitled to the benefits of, the State Teachers Retirement
System and be governed by the provisions of the State Teachers Retirement System subject to the
provisions of this article: Provided, That at least one-half of the members of the Defined
Contribution Plan must vote on the question in order for the election to be valid and binding.
(b) Any person who has one dollar or more in a defined contribution account created and
established pursuant to article seven-b of this chapter, may vote on the question of the merger.
(c) The Board may retain the services of the professionals it considers necessary to: (1)
Assist in the preparation of educational materials for members of the Defined Contribution Plan to
inform these members of their options in the election; (2) assist in the educational process of the members; (3) assist in the election process and the election; and (4) ensure compliance with all
relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process set forth in this article in
specific, and due to the nature of the professional services required by the Consolidated Public
Retirement Board in general, the provisions of article three, chapter five-a of this code, relating to
the Division of Purchasing of the Department of Administration do not apply to any contracts for any
actuarial services, investment services, legal services or other professional services authorized under
the provisions of this article.
(e) The election provided for in this section may be held through certified mail or in any other
way the Board determines is in the best interest of the members. Each ballot shall contain the
following language, in bold fifteen point type: 'By casting this ballot I am making an educated,
informed and voluntary choice as to my retirement and the retirement system of which I wish to be
a member. I am also certifying that I understand the consequences of my vote in this election.' Each
ballot shall be signed by the member voting. The Board shall retain the ballots in a permanent file.
Any unsigned ballot is void.
(f) The election period shall begin not later than the first day of March, two thousand six, and
the Board shall ascertain the results of the election not later than the last day of March, two thousand
six. The Board shall certify the results of the election to the Governor, to the Legislature and to the
members not later than the fifth day of April, two thousand six.
(g) The election period shall terminate and no votes may be cast or counted after the twelfth
day of March, two thousand six, except that if the election is conducted through the United States
mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand six, in
order to be counted.
(h) The Board shall take all necessary steps to see that the merger does not affect the qualified
status with the Internal Revenue Service of either retirement plan.
§18-7C-9. Election considered final.
(a) The election is considered final and each member, whether he or she votes, or fails to
vote, shall thereafter be bound by the results of the election. Every member is considered to have made an informed, educated, knowing and voluntary decision and choice with respect to the election.
Those members who fail or refuse to vote are also considered to have made an informed, educated,
knowing and voluntary decision and choice with respect to the election and with respect to voting
and shall be bound by the results of the election as if he or she voted in the election.
(b) Only one election may be held pursuant to the provisions of this article on the issue of
merging and consolidating the Defined Contribution Plan with the State Teachers Retirement Plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against his or her defined
contribution account is allowed to repurchase service in the State Teachers Retirement System by
repaying any moneys previously distributed to the alternate payee along with the interest as set by
the Board: Provided, That a member shall repay any amounts under this section by the last day of
June, two thousand twelve. The provisions of this section are void and of no effect if the members
of the Defined Contribution Plan fail to elect to merge and consolidate the Defined Contribution Plan
with the State Teachers Retirement System.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger provided in this article
occurs, is subject to the vesting schedule set forth in article seven-a of this chapter: Provided, That
if a member is vested under the Defined Contribution Plan and his or her last contribution was not
made to the State Teachers Retirement System, that member is subject to the vesting schedule set
forth in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Defined Contribution Plan who has made a contribution to the State
Teachers Retirement System after the date of merger is guaranteed a minimum benefit equal to his
or her contributions to the Defined Contribution Plan as of the thirtieth day of June, two thousand
six, plus his or her vested employer account balance as of that date, as stated by the Board or the
Board's professional contractor.
(b) A member of the Defined Contribution Plan who has made contributions to the State
Teachers Retirement System after the thirtieth day of June, two thousand six, where the Defined Contribution Plan has been merged into the State Teachers Retirement System pursuant to the
provisions of this article, shall have, upon eligibility to receive a distribution under article seven-a
of this chapter, at a minimum, the following three options: (1) The right to receive an annuity from
the State Teachers Retirement System created and established in article seven-a of this chapter, based
upon the benefit and vesting provisions of that article; (2) the right to withdraw from the State
Teachers Retirement Plan and receive his or her member accumulated contributions plus regular
interest thereon as set forth in article seven-a of this chapter; or (3) the right to withdraw and receive
his or her original vested defined contribution account balance as of the date of the merger as
determined by the Board or its professional third party benefits administrator pursuant to the vesting
provisions of section twelve of this article.
(c) Any member of the Teachers' Defined Contribution System who makes no contribution
to the State Teachers Retirement System following approval of the merger and following the date
of merger is guaranteed the receipt of the amount in his or her total vested account in the Defined
Contribution Plan on the date of merger plus interest thereon at four percent accruing from the date
of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by the Board following the
election, if the result of the election is in favor of merger and consolidation, may petition the Board
and receive an administrative hearing on the matter in dispute. The administrative decision may be
appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or void, the remaining provisions of
this article shall be void and of no effect and, to this end, the provisions of this article are hereby
declared to be nonseverable.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-6c. Limitations on benefit increases.
(a) The Legislature shall not increase any existing benefits or create any new benefits for any
retirees or beneficiaries currently receiving monthly benefit payments from the system, other than
an increase in benefits or new benefits effected by operation of law in effect on the effective date of
this article, in an amount that would exceed more than one percent of the accrued actuarial liability
of the system as of the last day of the preceding fiscal year as determined in the annual actuarial
valuation for each plan completed for the Consolidated Public Retirement Board as of the first day
of the following fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
causes any additional unfunded actuarial accrued liability in any of the West Virginia state sponsored
pension systems as calculated in the annual actuarial valuation for each plan during any fiscal year,
the additional unfunded actuarial accrued liability of the system shall be fully amortized over no
more than the five consecutive fiscal years following the date the increase in benefits or new benefits
become effective as certified by the consolidated public retirement board. Following the receipt of
the certification of additional actuarial accrued liability, the Governor shall submit the amount of the
amortization payment each year for the system as part of the annual budget submission or in an
executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation
of annuities or benefits for active members due to retirement, death or disability as provided for in
the system shall not be amended in such a manner as to increase any existing benefits or to provide
for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand
nineteen: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code,
the provisions of this section shall not terminate while any of the bonds are outstanding."
And,
By amending the title to read as follows:
H. B. 2984 - "A Bill to amend and reenact §5-5-3 of the Code of West Virginia, 1931, as
amended; to amend and reenact §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-
26, §5-10-27, §5-10-31 and §5-10-44 of said code; to amend said code by adding thereto a new
section, designated §5-10-22h; to amend and reenact §5-10A-2 and §5-10A-3 of said code; to amend
said code by adding thereto a new section, designated §5-10A-11; to amend and reenact §7-14D-5,
§7-14D-7, §7-14D-13 and §7-14D-23 of said code; to amend and reenact §12-8-2, §12-8-3, §12-8-4,
§12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code; to amend said code by adding thereto
a new section designated §12-8-15; to amend and reenact §15-2-26, §15-2-27, §15-2-27a, §15-2-28,
§15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of said code; to amend
said code by adding thereto four new sections, designated §15-2-25b, §15-2-31a, §15-2-31b and §15-
2-39a; to amend and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-
2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code; to amend said
code by adding thereto four new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and §15-
2A-22; to amend and reenact §18-7A-3, §18-7A-14, §18-7A-17
,
§18-7a-18, §18-7a-18a, §18-7A-
23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code; to amend said code by adding thereto three
new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40; to amend and reenact §18-7B-2,
§18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of said code; to amend and reenact said
code by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; to amend said code
by adding thereto a new article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5,
§18-7C-6, §18-7C-7, §18-7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-
7C-14; and to amend said code by adding thereto a new section, designated §51-9-6c, all relating to
state pensions and retirement generally; providing comprehensive changes to certain plans
administered by the Consolidated Public Retirement Board; enacting the Governor's Pension Reform
Act of 2005; rights of members' unused, accrued leave in final average salary in the Public
Employees Retirement System; limitations on benefit increases; bond pledges and covenants
regarding unfunded liabilities; limiting time for amortization; amending and adding definitions in
the Public Employees Retirement System; clarifying use of restricted qualified military service credit
to one retirement system; vesting of retirement benefits for those members of the armed forces accumulating nine or more years of credited service who are called from participating employment
to compulsory military service or armed conflict and who die during, or as a result of, compulsory
active service and prior to resumption of participating employment; setting time limit on application;
restricting certain rights of members to select a plan beneficiary; establishing a cap on the amount
certain persons may receive from the Public Employees Retirement System where that person is also
receiving a pension from another pension or retirement system administered by the Consolidated
Publi
c Retirement Board; authorizing annual physician review and requiring an annual statement of
earnings from certain persons receiving disability retirement payments; providing for suspension of
benefits upon failure of disability retiree to furnish certain information; providing that interest is to
be included in the calculation of terminal benefits payable as the result of death of retired
participants; addressing the correction of employer errors; clarifying use of members' unused,
accrued leave in final average salary; making technical corrections to the Public Employees
Retirement System; amending the definitions of less than honorable service and retirement plan;
increasing the time to issue notice to terminate benefits; requiring prosecuting attorneys to notify
retirement board of any convictions or pleas to less than honorable service; declaring policy and
making legislative findings regarding pension liability redemption; setting forth definitions;
providing for issuance of bonds; method of bond issuance and sale of bonds; use of bond proceeds;
continuation of Pension Liability Redemption Fund and disbursements therefrom; setting forth state
pledges and covenants; operation of article; relating to the Deputy Sheriff Retirement System;
concurrent contributions by members and employers; credit for nondeputy sheriff service in the
Public Employees Retirement System prior to transfer; treatment of withdrawals not repaid prior to
transfer; providing that any person becoming a member of the Deputy Sheriff Retirement System
after the first day of July, two thousand five, may not borrow from that plan; relating to the West
Virginia State Police Death, Disability and Retirement Fund generally; adding general definitions
to the West Virginia State Police Death, Disability and Retirement Fund; adding definitions of "law-
enforcement officer", "partially disabled", "totally disabled" and "physical or mental impairment"
to the West Virginia State Police Death, Disability and Retirement Fund; making technical changes
in to the West Virginia State Police Death, Disability and Retirement Fund; providing for probable permanent disability status; specifying that total disability now is inability to perform any substantial
gainful employment and that partial disability is inability to perform law enforcement duties;
specifying limitation on compensation rendered to health care providers; providing that member
receiving annuity for partial disability incurred in performance of duty may be employed as an
elected sheriff or appointed chief of police if it is shown to the Board that such employment is not
inconsistent with the partial disability; allowing application for disability to be made by person
acting on member's behalf; allowing Superintendent to petition Board for member's disability when
he or she deems the member disabled; authorizing rules; judicial review; allowing Board to withhold
payment pending judicial review; requiring disability recipient to file annual statement of earnings
and setting forth penalty for refusal or failure to do so; annual report of employer's disability
retirement experience in to the West Virginia State Police Death, Disability and Retirement Fund;
limitation on benefit increases; relating to amending definitions in the West Virginia State Police
Retirement System; determination of contributions; acquiring retirement credited service through
member's use of accrued annual or sick leave days in the West Virginia State Police Retirement
System; establishing starting date for payment of annuity in the West Virginia State Police
Retirement System; clarifying disability provisions and technical corrections in the West Virginia
State Police Retirement System; annual report of employer's disability retirement experience in to
the West Virginia State Police Retirement System; limitation on benefit increases; amending
provisions relating to the State Teachers Retirement System; amending, adding and alphabetizing
the definitions; providing for the use of qualified military service in the State Teachers Retirement
System; providing that in the case of deceased retired participants that interest is to be included in
the calculation of terminal benefits payable and making other technical modifications in the State
Teachers Retirement System; clarifying provisions for loan repayment in the State Teachers
Retirement System; replacing earnable compensation with gross salary in the State Teachers
Retirement System; clarifying maximum loan amount and making technical corrections in the State
Teachers Retirement System; making technical corrections to the Teachers Retirement System;
creating the Teachers Employers Contribution Collection Account; monies to be deposited and
transfer of monies in account; continuing the Teachers Retirement System Fund; monies to be deposited and use of monies in fund; discontinuing the loan program participation of teachers and
nonteachers who become members of the Teachers Retirement System on or after the first day of
July, two thousand five; limitation on benefits; creating Employee Pension and Health Care Benefits
Fund; moneys to be deposited; use of moneys in fund; amending certain definitions in the Teachers'
Defined Contribution System; clarifying participation requirement in the Teachers' Defined
Contribution System; providing employer deadlines for deposit of contributions in the Teachers
Defined Contribution System; establishing when payments are to be made into and out of the
suspension account in the Teachers Defined Contribution System; adding the Internal Revenue
Service provisions concerning incidental death benefits in the Teachers Defined Contribution
System; clarifying that all years of employee service will be counted for vesting purposes in the
Teachers Defined Contribution System; prohibiting involuntary cash-outs effective the thirtieth day
of June, two thousand five; making technical corrections in the Teachers Defined Contribution
System; requiring River Valley Child Development Services to offer pension plan for employees;
allowing employees to withdraw from PERS; requiring notice; relating to the merger and
consolidation of the Teachers Defined Contribution Retirement System and the State Teachers
Retirement System
generally; closing the Teachers Defined Contribution Retirement System to
newly hired personnel; providing legislative findings and purpose; providing definitions; providing
for merger and consolidation of the Teachers Defined Contribution Retirement System and the State
Teachers Retirement System upon election; providing responsibilities of the Consolidated Public
Retirement Board; setting forth dates and time periods for transition and election; requiring that
increase of or new benefits to the Teachers Retirement System be amortized over a ten-year time
period; providing for education about election and merger for members; requiring legal notice to
members; providing for transfer of assets from the Teachers Defined Contribution Retirement
System to the State Teachers Retirement System upon favorable vote for consolidation and merger;
providing that the Teachers Defined Contribution Retirement System shall not exist upon favorable
vote for consolidation and merger; setting forth terms of merger and consolidation of the Teachers
Defined Contribution Retirement System and the State Teachers Retirement System; providing for
service credit in the State Teachers Retirement; requiring members of Teachers Defined Contribution Plan to pay additional amount to receive credit upon merger; providing options and loans for
members moving to the remaining plan; providing service credit for transferring member; addressing
withdrawals and cash outs; providing for election on the question of merger and consolidation of the
Teachers Defined Contribution Retirement System and the State Teachers Retirement System;
setting forth requirements of election; allowing Consolidated Public Retirement Board to contract
directly for professional services for purposes of performing its responsibilities related to the merger
and consolidation and conducting the election; permitting only one election; addressing qualified
domestic relations orders; providing for vesting of members and minimum guarantees of benefits
for them; providing for due process and right to appeal; providing for nonseverability of the new
article; and limitation on benefit increases in Judges' Retirement System.
"
On motion of Delegates Staton and Stalnaker, the House of Delegates concurred in the Senate
amendments with an amendment, as follows:
On page thirty-two, section twenty-two-h, line twenty-four, after the word "the", by striking
out the word "five" and inserting in lieu thereof the word "six".
On page thirty-three, section twenty-two-h, line 2, after the word "the", by striking out the
word "five" and inserting in lieu thereof the word "six".
On page seventy, section five, line 8 after the words "this article", by inserting a new
subsection (d) to read as follows:
"(d) Bonds may be issued by the Governor upon resolution adopted by the Legislature
authorizing the same.", and by redesignating the remaining subsections accordingly.
On page seventy-three, section seven, line 24, after the word "article", by striking the word
"and" and inserting in lieu thereof a comma and the words "which bond proceeds shall be invested
pursuant to".
On page seventy-three, section seven, line 25, after the words "West Virginia", by inserting
the words "and otherwise as provided by law".
On page eighty, section ten, line 25, after the word "the", by striking out the word "five" and
in inserting in lieu thereof the word "six".
On page eighty-one, section ten, line 7, fter the word "the", by striking out the word "five"
and inserting in lieu thereof the word "six".
On page one hundred ten, section thirty-nine-a, line 22, after the word "the", by striking the
word "five" and inserting the in lieu thereof the word "six".
On page one hundred thirty-eight, section twenty-two, line 12, after the word "the", by
striking the word "five" and inserting in lieu thereof the word "six".
On page one hundred thirty-eight, section twenty-two, line 16, after the word "the", by
striking the word "five" and inserting in lieu thereof the word "six".
On page one hundred seventy-three, section twenty-eight-e, line 13, after the word "the", by
striking the word "five" and in lieu thereof the word "six".
On page one hundred seventy-nine, section thirty-nine, line 2, after the word "code", by
inserting the words "as appropriated by the Legislature.".
And,
On page two hundred twelve, section six-c, line 23, by striking the word "five", and inserting
in lieu thereof the word "six".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 680), and there were--yeas
95, nays 5, absent and not voting none, with the nays being as follows:
Nays: Armstead, Carmichael, Frederick, Lane and Porter.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2984) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 681), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2984) 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 amendment, a bill of
the House of Delegates as follows:
H. B. 2991, Providing criminal penalties for aiding escape and specifying items that are
unlawful to deliver to or be possessed by individuals in custody or confinement.
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, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-8. Aiding escape and other offenses relating to adults and juveniles in custody or
confinement; penalties.
(a) Where any adult or juvenile is lawfully detained in custody or confinement in any county
or regional jail, state correctional facility, juvenile facility or juvenile detention center, if any other
person shall deliver delivers anything into the place of custody or confinement of the adult or
juvenile with the intent to aid or facilitate the adult's or juvenile's escape or attempted escape
therefrom, or if the other person shall forcibly rescue or attempt forcibly rescues or attempts to
rescue an adult or a juvenile therefrom, the other person is guilty of a felony and, upon conviction
thereof, shall be confined in a state correctional facility not less than one nor more than ten years.
(b) Where any adult or juvenile is lawfully detained in custody or confinement in any county
or regional jail, a state correctional facility or a juvenile facility or juvenile detention center, if any
other person shall deliver delivers any money or other thing of value, any written or printed matter,
any article of merchandise, food or clothing, any medicine, telecommunication device, utensil or
instrument of any kind to such the adult or juvenile without the express authority and permission of
the supervising officer and with knowledge that such the adult or juvenile is lawfully detained, such
the other person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars and confined in the county or regional jail not less
than three nor more than twelve months: Provided, That the provisions of this section do not
prohibit an attorney or his or her employees from supplying any written or printed material to an
adult or juvenile which pertains to that attorney's representation of the adult or juvenile.
(c) If any person transports any alcoholic liquor, nonintoxicating beer, poison, explosive,
firearm or other implement of escape, dangerous material, or deadly weapon or any controlled
substance as defined by chapter sixty-a of this code onto the grounds of any county or regional jail,
state correctional facility, juvenile facility or juvenile detention center within this state and is
unauthorized by law to do so, or is unauthorized by the persons supervising the facility, such the
person is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand
nor more than five thousand dollars or confined in a state correctional facility not less than two years
nor more than ten years, or both, or, in the discretion of the court, be confined in the county or
regional jail not more than one year and fined not more than five hundred dollars.
(d) If any person delivers any alcoholic liquor, nonintoxicating beer, poison, explosive,
firearm or other implement of escape, dangerous material, or deadly weapon or any controlled
substance as defined by chapter sixty-a of this code to an adult or juvenile in custody or confinement
in any county or regional jail, state correctional facility, juvenile facility or juvenile detention center
within this state and is unauthorized by law to do so, or is unauthorized by the persons supervising
the facility, such the person is guilty of a felony and, upon conviction thereof, shall be fined not less
than one thousand nor more than five thousand dollars or confined in a state correctional facility not
less than one year nor more than five years, or both.
(e) Whoever purchases, accepts as a gift, or secures by barter, trade or in any other manner,
any article or articles manufactured at or belonging to any county or regional jail, state correctional
facility, juvenile facility or juvenile detention center from any adult or juvenile detained therein is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor
more than five hundred dollars and confined in the county or regional jail not less than three nor
more than twelve months: Provided, That the provisions of this subsection do not apply to articles specially manufactured in any facility under the authorization of the persons supervising the facility
and which are offered for sale within or outside of the facility.
(f) Whoever persuades, induces or entices or attempts to persuade, induce or entice any
person who is in custody or confined in any county or regional jail, state correctional facility,
juvenile facility or juvenile detention center to escape therefrom or to engage or aid in any
insubordination to the persons supervising the facility is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars and
confined in the county or regional jail not less than three nor more than twelve months.
(g) (1) An inmate of a jail, state correctional facility, juvenile facility or juvenile detention
center having in his or her possession any poison, implement of escape, dangerous material, weapon
or any controlled substance as defined by chapter sixty-a of this code is guilty of a felony and, upon
conviction thereof, shall be fined not less than one thousand nor more than five thousand dollars or
confined in a state correctional facility not less than one year nor more than five years, or both, or,
in the discretion of the court, be confined in jail not more than one year and fined not more than five
hundred dollars.
(2) An inmate of a jail, state correctional facility, juvenile facility or juvenile detention center
having in his or her possession any alcoholic liquor, nonintoxicating beer, money or other thing of
value, any written or printed matter, any article of merchandise, food or clothing, any medicine,
telecommunication device, utensil or instrument of any kind without the express authority and
permission of the supervising officer is guilty of a misdemeanor and, upon conviction thereof, shall
be fined not less than fifty dollars nor more than five hundred dollars and confined in jail not more
than twelve months.
(h) As used in this section:
(1) 'Dangerous material' means any incendiary material or device, highly flammable or
caustic liquid, explosive, bullet or other material readily capable of causing death or serious bodily
injury.
(2) 'Delivers' means to transfer an item to an adult or juvenile who is detained in custody or
confinement in any jail, correctional facility, juvenile facility or juvenile detention center, or a building appurtenant to those places. The term includes bringing the item into a jail, correctional
facility, juvenile facility or juvenile detention center or a building appurtenant to those places. The
term includes putting an item in a place where it may be obtained by an inmate.
(3) 'Inmate' means an adult or juvenile who is detained in custody or confinement in any jail,
correctional facility, juvenile facility or juvenile detention center, regardless of whether the
individual is temporarily absent due to medical treatment, transportation, court appearance or other
reason for a temporary absence.
(4) 'Implement of escape' means a tool, implement, device, equipment or other item which
an inmate is not authorized to possess, capable of facilitating, aiding or concealing an escape or
attempted escape by an inmate.
(5) 'Telecommunication device' means any type of instrument, device, machine or equipment
which is capable of transmitting telephonic, electronic, digital, cellular or radio communications or
any part of an instrument, device, machine or equipment which is capable of facilitating the
transmission of telephonic, electronic, digital, cellular or radio communications. The term includes,
but is not limited to, cellular phones, digital phones and modem equipment devices.
(6) 'Weapon' means an implement readily capable of lethal use and includes any firearm,
knife, dagger, razor, other cutting or stabbing implement or club. The term includes any item which
has been modified or adapted so that it can be used as a firearm, knife, dagger, razor, other cutting
or stabbing implement or club. For purposes of this definition, the term 'firearm' includes an
unloaded firearm or the unassembled components of a firearm."
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. 682), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2991) 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. 3002, Removing the thirty day deadline for submitting party designations to be eligible
to vote in the primary election.
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 clause and inserting in lieu thereof
the following:
"That §3-2-6 and §3-2-31 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-6. Time of registration application before an election.
(a) Voter registration before an election shall close on the twentieth twenty first day before
the election, or on the first day thereafter which is not a Saturday, Sunday or legal holiday.
(b) An application for voter registration, transfer of registration, change of name or change
of political party affiliation submitted by an eligible voter by the close of voter registration shall be
effective for any subsequent primary, general or special election if the following conditions are met:
(1) The application contains the required information as set forth in subsection (c), section
five of this article: Provided, That incomplete applications for registration containing information
which are submitted within the required time may be corrected within four days after the close of
registration if the applicant provides the required information; and
(2) The application is received by the appropriate clerk of the county commission no later
than the hour of the close of registration or is otherwise submitted by the following deadlines:
(A) If mailed, the application shall be addressed to the appropriate clerk of the county
commission and postmarked by the postal service no later than the date of the close of registration:
Provided, That if the postmark is missing or illegible, the application shall be presumed to have been mailed no later than the close of registration if it is received by the appropriate clerk of the county
commission no later than the third day following the close of registration;
(B) If accepted by a designated agency or motor vehicle licensing office, the application shall
be received by that agency or office no later than the close of registration;
(C) If accepted through a registration outreach program, the application shall be received by
the clerk, deputy clerk or registrar no later than the close of registration; and
(3) The verification notice required by the provisions of section sixteen of this article mailed
to the voter at the residence indicated on the application is not returned as undeliverable.
§3-2-31. Rules pertaining to voting after registration or change of address within the county.
(a) A voter who designates a political affiliation with a major party on a registration
application filed at least thirty days no later than the close of voter registration before the primary
may vote the ballot of that political party in the primary election. Political parties, through the
official action of their state executive committees, shall be permitted to determine whether
unaffiliated voters or voters of other parties shall be allowed to vote that party's primary election
ballot upon request.
(b) A voter whose registration record lists one residence address but the voter has since
moved to another residence address within the precinct shall be permitted to update the registration
at the polling place and vote without challenge for that reason.
(c) A voter whose registration record lists one residence address but the voter has since
moved to another residence address in a different precinct in the same county shall be permitted to
update the registration at the polling place serving the new precinct and shall be permitted to vote
a challenged or provisional ballot at the new polling place. If the voter's registration is found on the
registration records within the county during the canvass and no other challenge of eligibility was
entered on election day, the challenge shall be removed and the ballot shall be counted.
(d) A voter whose registration record has been placed on an inactive status or transferred to
an inactive file and who has not responded to a confirmation notice sent pursuant to the provisions
of section twenty-four, twenty-five or twenty-six of this article and who offers to vote at the polling place where he or she is registered to vote shall be required to affirm his or her present residence
address under penalty of perjury, as provided in section thirty-six of this article."
And,
By amending the title to read as follows:
H. B. 3002- "A Bill to amend and reenact §3-2-6 and §3-2-31 of the Code of West Virginia,
1931, as amended, all relating to registration of voters generally; providing that a voter may register
up to the twenty-first day before an election; and conforming the requirement that a voter designate
a political party before the primary no later than the close of voter registration before the primary."
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. 683), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3002) 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. 3014, Clarifying that mandated accident and sickness insurance benefits do not apply
to limited coverage policies, unless expressly made applicable to such policies.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page five, section one-b, line nineteen, after the word "two-f", by striking out the words
"of this article" and inserting in lieu thereof a comma and the words "article fifteen of this chapter".
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. 684), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3014) 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. 3049, Creating a new crime of wanton endangerment involving the use of fire and
imposing a criminal penalty for such crime.
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, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. CRIMES AGAINST THE PERSON.
§61-2-9c. Wanton endangerment involving the use of fire; penalty.
Any person who, during the manufacture or production of an illegal controlled substance uses
fire, the use of which creates substantial risk of death or serious bodily injury to another due to the
use of fire, is guilty of a felony and, upon conviction, shall be committed to the custody of the
Division of Corrections for a definite term of years of not less than one nor more than five years or,
in the discretion of the court, confined in the regional jail for not more than one year, or fined not
less than two hundred fifty dollars or more than two thousand five hundred dollars, or both."
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. 685), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3049) 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. 3048, Relating to restructuring of the hunting and fishing license
system.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page eight, section thirty-three, lines thirty-seven through forty-one, by striking out the
words "the electronic issuance fee is to be at least five dollars with one dollar of the fee to go to the
administration of the electronic issuance and four dollars of the fee to go to law-enforcement section
of the division of natural resources" and inserting in lieu thereof the words "an electronic issuance
fee of at least two dollars shall be assessed on each Go Wild transaction. The electronic issuance
fee shall be dedicated to the administration and maintenance of Go Wild".
On page nine, after section thirty-three, by inserting a new section, designated section thirty-
three-b, to read as follows:
"§20-2-33b. Electronic application donation to fund the Coyote Management Program.
(a) (1) Effective the first day of January, two thousand six, every application for a hunting
or fishing electronic license shall include a solicitation for a voluntary donation to the division's
established Coyote Management Program.
(2) The license applicant will be offered an opportunity to designate a donation in the amount
of two dollars for the Coyote Management Program.
(b) There is hereby created a special revenue account, designated the 'Coyote Management
Fund' into which all donations derived under this section shall be deposited. Moneys in this account
shall be expended solely for the purposes set forth in subsection (c) of this section. Funds paid into this account may also be derived from the following sources: (1) All interest or return on investment
accruing to this account; (2) Any gifts, grants, bequests, transfers, appropriations or other donations
which may be received from any governmental entity or unit or any person, firm, foundation, or
corporation; and (3) any appropriations by the Legislature which may be made for the purposes of
this section. Any balance including accrued interest and other earnings at the end of any fiscal year
shall not revert to the general fund but shall remain in the fund for the purposes set forth in this
section.
(c) The moneys in the fund shall be paid out, at the sole discretion and direction of the
director, to address coyote management issues."
On page thirty-four, section nine, lines twenty-nine through forty-five, after the word
'licenses', by changing the colon to a period and striking out the following: "Provided further, That
notwithstanding any other provisions of this section to the contrary, two dollars of the funds
collected from the sale of this stamp shall be deposited in a special revenue account designated as
the 'Integrated Predation Management Fund'. Expenditures from the fund shall be used exclusively
to enter into a cooperative agreement with the United States Department of Agriculture, Animal
Plant Health Inspection Service, Wildlife Service, to expand the coyote control program statewide.
Expenditures are not authorized from collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the provisions of article three, chapter
twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this
code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand five,
expenditures are authorized from collections rather than pursuant to appropriation by the
Legislature."
And,
On pages two and three, by amending the enacting section to read as follows:
"That §20-2-39, §20-2-40, §20-2-40b, §20-2-41, §20-2-43, §20-2-44a, §20-2-45, §20-2-46b,
§20-2-46c, §20-2-46d, §20-2-46f, §20-2-46g, §20-2-46i, §20-2-46j, §20-2-46k, §20-2-46l,
§20-2-46m and §20-2-63 of the Code of West Virginia, 1931, as amended, be repealed; that
§20-2-30a, §20-2-33, §20-2-44 and §20-2-44b of said code be amended and reenacted; that said code be amended by adding thereto twenty-four new sections, designated §20-2-33b, §20-2-42, §20-2-42a,
§20-2-42b, §20-2-42c, §20-2-42d, §20-2-42e, §20-2-42f, §20-2-42g, §20-2-42h, §20-2-42i,
§20-2-42j, §20-2-42k, §20-2-42l, §20-2-42m, §20-2-42n, §20-2-42o, §20-2-42p, §20-2-42q,
§20-2-42r, §20-2-42s, §20-2-42t, §20-2-42u and §20-2-42v; and that §20-2B-6, §20-2B-7, §20-2B-8,
§20-2B-9 and §20-2B-10 of said code be amended and reenacted, all to read as follows" and a colon.
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. 686), and there were--yeas
79, nays 20, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Border, Carmichael, Eldridge, Ellem, Evans, Hall,
Hrutkay, Lane, Leggett, Louisos, Overington, Porter, Schoen, Stephens, Sumner, Susman and
Walters.
Absent And Not Voting: Barker.
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. 3048) 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. 3068, Authorizing private inspectors to conduct annual inspections of elevators in
state-owned buildings while establishing authority for the Division of Labor to conduct over-site
inspections.
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 five, line eleven, by striking out the word "ascertaining" and inserting
in lieu thereof the words "monitoring whether private inspectors are in".
And,
On page three, section eleven, lines seven through twelve, by striking out the words "That
in no event may the fees established for inspection exceed one hundred dollars for any one
inspection: Provided, however, That in buildings with more than one elevator, the fee shall not
exceed one hundred dollars for the first elevator inspected and twenty-five dollars for each additional
elevator: Provided further" and a comma.
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. 687), and there were--yeas
97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ellem and Overington.
Absent And Not Voting: Stephens.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3068) 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. 3089, Adding a representative to the trucking advisory committee and adding routes
to the coal resource transportation road system in Braxton and Webster counties.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page eleven, section twelve, line fifty-one, after the word "section" by changing the
period to a colon and inserting the following proviso: "Provided, That the committee may only
consider those applications for designation of roads, highways and bridges not located within those
whole counties identified in section three of this article."
On page twelve, section twelve, line seventy-seven, after the word "designation" by inserting
the words "or decertification".
On pages thirteen and fourteen, section twelve, by striking out all of subsection (j) and
inserting in lieu thereof three new subsections, designated subsections (j), (k), and (l), to read as
follows:
"(j) Once an application has been approved by the committee and the public road, highway
or bridge has become part of the coal resource transportation road system, such route must be used
for coal haulage pursuant to the provisions of this article within one year of its designation. In the
event any public road, highway or bridge that is part of the coal resource transportation road system
ceases to be used for coal haulage for a period of time exceeding one year, then such route may be
decertified by the committee upon application by any person: Provided, That prior to any
decertification the committee shall first have held a public hearing in the county wherein the public
road, highway, or bridge is located: Provided, however, That where a public road, highway or bridge
is located in more than one county, the hearing shall be conducted in the county containing the
longest mileage under decertification: Provided further, That prior to any public hearing the
applicant shall cause notice of such public hearing or hearings by Class I legal advertisement.
(k) Prior to rendering a final decision on any application for designation or decertification
of a coal resource transportation road, the committee shall first report its findings and
recommendations on each pending application to the Joint Committee on Government and Finance.
The Joint Committee on Government and Finance may comment on the application which comments
shall be considered by the committee. The committee may not make final any designation or
decertification before thirty days after reporting its findings and recommendations on an application
to the Joint Committee on Government and Finance.
(l) The coal resource transportation designation committee created in this section shall report
its activities to the Secretary of Transportation who will provide the necessary staff to assist the
committee in the discharge of its functions pursuant to this section."
On page fourteen, section two, line three, by striking out the words "and oversee".
On page fourteen, section two, lines three and four, by striking out the words "and
administration".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3089 - "A Bill to amend and reenact §17C-17A-3 and §17C-17A-12
of the Code of West Virginia, 1931, as amended; and to amend and reenact §24A-1A-2 of said code,
all relating to the regulation of the commercial transportation of coal; adding representatives to the
commercial motor vehicle weight and safety enforcement advisory committee; authorizing the
division to provide for special crossing permits by legislative rule; creating the Coal Resource
Transportation Designation Committee and authorizing it to make recommendations to the Joint
Committee on Government and Finance and to designate roads to the coal resource transportation
road system under certain circumstances; and adding routes to the coal resource transportation road
system in Braxton, Webster, Nicholas and Ohio counties."
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. 688), and there were--yeas
97, nays 3, absent and not voting none, with the nays being as follows:
Nays: Louisos, Martin and Poling.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3089) 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. 3094, Relating to child support and enforcement.
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 amending the enacting section to read as follows:
"That §48-14-419 of the code of West Virginia, 1931, as amended; to repeal §48-16-308 of
said code; to repeal §48-18-109 and §48-18-127 of said code; to amend and reenact §48-17-101 of said code; to amend and reenact §48-18-103, §48-18-108, §48-18-112, §48-18-113, §48-18-117,
§48-18-118, §48-18-119, §48-18-121 of said code; and to amend and reenact §48-19-102 said code,
all to read as follows" and a colon.
On page three by striking out everything after the enacting section and inserting in lieu
thereof the following:
"ARTICLE 17: WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.
§48-17-101. Creation of Support Enforcement Commission; number of members.
The West Virginia Support Enforcement Commission, consisting of eight members, is hereby
created in the Department of Health and Human Resources and may use the administrative support
and services of that department. The Commission is not subject to control, supervision or direction
by the Department of Health and Human Resources, but is an independent, self-sustaining
commission that shall have the powers and duties specified in this chapter.
The Commission is a part-time commission whose members perform such duties as specified
in this chapter. The ministerial duties of the Commission shall be administered and carried out by
the Commissioner of the Bureau for Child Support Enforcement, with the assistance of such staff
of the Department of Health and Human Resources as the Secretary may assign.
Each member of the Commission shall devote the time necessary to carry out the duties and
obligations of the office and the six seven members appointed by the Governor may pursue and
engage in another business, occupation or gainful employment that is not in conflict with the duties
of the Commission.
While the Commission is self-sustaining and independent, it, its members, its employees and
the Commissioner are subject to article nine-a of chapter six, chapter six-b, chapter twenty-nine-a
and chapter twenty-nine-b of this code.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-103. Organization and employees.
(a) The Commissioner shall organize the work of the Bureau in such offices or other
organizational units as he or she may determine to be necessary for effective and efficient operation.
(b) The Commissioner shall employ a sufficient number of employees in the position of
Bureau for Child Support Enforcement attorney so as to provide for the effective and efficient
operation of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement
attorneys shall be distributed geographically as determined by the Commissioner.
(b) (c) The Secretary may transfer employees and resources of the Department to the Bureau
for Child Support Enforcement as may be necessary to fulfill the duties and responsibilities of the
Bureau under this chapter: Provided, That the Secretary may not transfer employees of other
divisions and agencies within the Department to the Bureau for Child Support Enforcement without
a prior finding that the office or position held by the employee may be eliminated and until the office
or position is, in fact, eliminated.
(c) (d) The Commissioner, if he or she deems such action necessary, may hire legal counsel
for the Division, notwithstanding the provisions of section two, article three, chapter five of this code
or any other code provision to the contrary, or may request the Attorney General to appoint assistant
attorneys general counsel who shall perform such duties as may be required by the Bureau. The
Attorney General, in pursuance of such request, may select and appoint assistant attorneys general
counsel to serve during the will and pleasure of the Attorney General, and such assistants shall be
paid out of any funds allocated and appropriated to the Child Support Enforcement Fund.
(d) (e) The Commissioner may employ such staff or employees as may be necessary to
administer and enforce this chapter.
§48-18-108. Fees.
(a) When the Bureau for Child Support Enforcement provides child support collection
services either to a public assistance recipient or to a party who does not receive public assistance,
the Bureau for Child Support Enforcement shall, upon written notice to the obligor, charge a monthly
collection fee equivalent to the full monthly cost of the services, in addition to the amount of child
support which was ordered by the court. The fee shall be deposited in the Child Support Enforcement
Fund. The service fee assessed may not exceed ten percent of the monthly court-ordered child
support and may not be assessed against any obligor who is current in payment of the monthly court-ordered child support payments: Provided, That this fee may not be assessed when the obligor is also
a recipient of public assistance.
(b) Except for those persons applying for services provided by the Bureau for Child Support
Enforcement who are applying for or receiving public assistance from the Division of Human
Services or persons for whom fees are waived pursuant to a legislative rule promulgated pursuant
to this section, all applicants shall pay an application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for collection of overdue support shall be
imposed on the person for whom these services are provided. Upon written notice to the obligee, the
Bureau for Child Support Enforcement shall assess a fee of twenty-five dollars to any person not
receiving public assistance for each successful federal tax interception. The fee shall be withheld
prior to the assistance for each successful federal tax interception. The fee shall be withheld prior
to the release of the funds received from each interception and deposited in the Child Support
Enforcement Fund established pursuant to section 18-107.
(d) In any action brought by the Bureau for Child Support Enforcement, the court shall order
that the obligor shall pay attorney fees for the services of the attorney representing the Bureau for
Child Support Enforcement in an amount calculated at a rate similar to the rate paid to court-
appointed attorneys paid pursuant to section thirteen-a, article twenty-one, chapter twenty-nine of
this code and all court costs associated with the action: Provided, That no such award shall be made
when the court finds that the award of attorney's fees would create a substantial financial hardship
on the obligor or when the obligor is a recipient of public assistance. Further, the Bureau for Child
Support Enforcement may not collect such fees until the obligor is current in the payment of child
support. No court may order the Bureau for Child Support Enforcement to pay attorney's fees to any
party in any action brought pursuant to this chapter.
(e) This section shall not apply to the extent it is inconsistent with the requirements of federal
law for receiving funds for the program under Title IV-A and Title IV-D of the Social Security Act,
United States Code, article three, Title 42, Sections 601 to 613 and United States Code, Title 42,
Sections 651 to 662.
(f) The commission shall, by legislative rule promulgated pursuant to chapter twenty-nine-a
of this code, describe the circumstances under which fees charged by the Bureau for Child Support
Enforcement may be modified or waived and such rule shall provide for the waiver of any fee, in
whole or in part, when such fee would otherwise be required to be paid under the provisions of this
chapter. Further, such rule shall initially be promulgated as an emergency rule pursuant to section
fifteen, article three, chapter twenty-nine-a of this code.
§48-18-112. Cooperation with other states in the enforcement of child support.
(a) The Bureau for Child Support Enforcement shall cooperate with any other state in the
following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or permanently in this state, against whom any
action is being taken for the establishment of paternity or the enforcement of child and spousal
support;
(3) In securing compliance by an obligor residing temporarily or permanently in this state,
with an order issued by a court of competent jurisdiction against such obligor for the support and
maintenance of a child or children or the parent of such child or children; and
(4) In carrying out other functions necessary to a program of child and spousal support
enforcement.
(b) The Commission Commissioner shall, by legislative rule, establish procedures necessary
to extend the Bureau for Child Support Enforcements' system of withholding under part 14-401, et
seq. article fourteen of this chapter, so that such system may include withholding from income
derived within this state in cases where the applicable support orders were issued in other states, in
order to assure that child support owed by obligors in this state or any other state will be collected
without regard to the residence of the child for whom the support is payable or the residence of such
child's custodial parent.
§48-18-113. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the Bureau for Child Support
Enforcement shall be distributed within two business days after receipt from the employer or other source of periodic income. The amounts collected as child support shall be distributed by the Bureau
for Child Support Enforcement in accordance with the provisions for distribution set forth in 42
U.S.C. §657. The Commission Commissioner shall promulgate a legislative rule to establish the
appropriate distribution as may be required by the federal law.
(b) Any payment required to be made under the provisions of this section to a family shall
be made to the resident parent, legal guardian or caretaker relative having custody of or responsibility
for the child or children.
(c) The commission shall establish bonding requirements for employees of the Bureau for
Child Support Enforcement who receive, disburse, handle or have access to cash.
(d) (c) The Commissioner shall maintain methods of administration which are designed to
assure that employees of the Bureau for Child Support Enforcement or any persons employed
pursuant to a contract who are responsible for handling cash receipts do not participate in accounting
or operating functions which would permit them to conceal in the accounting records the misuse of
cash receipts: Provided, That the Commissioner may provide for exceptions to this requirement in
the case of sparsely populated areas in this state where the hiring of unreasonable additional staff in
the local office would otherwise be necessary.
(e) (d) No penalty or fee may be collected by or distributed to a recipient of Bureau for Child
Support Enforcement services from the State Treasury or from the Child Support Enforcement Fund
when child support is not distributed to the recipient in accordance with the time frames established
herein.
(f) (e) For purposes of this section, 'business day' means a day on which state offices are
open for regular business.
§48-18-117. Obtaining support from federal tax refunds.
The Commission Commissioner shall, by legislative rule promulgated pursuant to chapter
twenty-nine-a of this code, place in effect procedures necessary for the Bureau for Child Support
Enforcement to obtain payment of past due support from federal tax refunds from overpayments
made to the Secretary of the Treasury of the United States. The Bureau for Child Support
Enforcement shall take all steps necessary to implement and utilize such procedures.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary for the Bureau for Child
Support Enforcement to obtain payment of past due support from state income tax refunds from
overpayment made to the Tax Commissioner pursuant to the provisions of article twenty-one,
chapter eleven of this code.
(b) The Commission Commissioner shall, by legislative rule promulgated pursuant to chapter
twenty-nine-a of this code, establish procedures necessary for the Bureau for Child Support
Enforcement to enforce a support order through a notice to the Tax Commissioner which will cause
any refund of state income tax which would otherwise be payable to an obligor to be reduced by the
amount of overdue support owed by such obligor.
(1) Such legislative rule shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support Enforcement shall serve on the
obligor or submit to the Tax Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the obligor or submitted to the Tax
Commissioner;
(C) The necessary information which shall be contained in or accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner for the full cost of applying
the procedure whereby past due support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support Enforcement may deduct a twenty-five
dollar fee from the obligor's state income tax refund. Such rule This procedure may not require a
deduction from the state income tax refund of an applicant who is a recipient of assistance from the
Bureau for Children and Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be pursued unless the Bureau for
Child Support Enforcement has examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement actions, and has determined that the
amount of past due support which will be owed, at the time the withholding is to be made, will be
one hundred dollars or more. In determining whether the amount of past due support will be one
hundred dollars or more, the Bureau for Child Support Enforcement shall consider the amount of all unpaid past due support, including that which may have accrued prior to the time that the Bureau for
Child Support Enforcement first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support Enforcement shall enter into
agreements with the Secretary of the Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the social security number or numbers and
the address or addresses of any obligor, in order to provide notice between such agencies to aid the
Bureau for Child Support Enforcement in requesting state income tax deductions and to aid the Tax
Commissioner in enforcing such deductions. In each such case, the Tax Commissioner, in processing
the state income tax deduction, shall notify the Bureau for Child Support Enforcement of the
obligor's home address and social security number or numbers. The Bureau for Child Support
Enforcement shall provide this information to any other state involved in processing the support
order.
(d) For the purposes of this section, 'past due support' means the amount of unpaid past due
support owed under the terms of a support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living, regardless of whether the amount has been
reduced to a judgment or not.
(e) The Bureau for Child Support Enforcement may, under the provisions of this section,
enforce the collection of past due support on behalf of a child who has reached the age of majority.
(f) The legislative rule promulgated by the commission pursuant to the provisions of this
section and pursuant to chapter twenty-nine-a of this code, procedure shall, at a minimum, provide
that prior to notifying the Tax Commissioner of past due support, a notice to the obligor as
prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from any refund otherwise payable to
such obligor;
(2) Instruct the obligor of the steps which may be taken to contest the determination of the
Bureau for Child Support Enforcement that past due support is owed or the amount of the past due
support; and
(3) Provide information with respect to the procedures to be followed, in the case of a joint
return, to protect the share of the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that
the refund from which withholding is proposed to be made is based upon a joint return, and if the
past due support which is involved has not been assigned to the Department of Health and Human
Resources, the Bureau for Child Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for Child Support Enforcement that the
other person filing the joint return has received his or her proper share of the refund, but such delay
shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax Commissioner under the
provisions of this section and paid to the Bureau for Child Support Enforcement, if the Bureau for
Child Support Enforcement subsequently determines that the amount certified as past due was in
excess of the amount actually owed at the time the amount withheld is to be distributed, the agency
shall pay the excess amount withheld to the obligor thought to have owed the past due support or,
in the case of amounts withheld on the basis of a joint return, jointly to the parties filing such the
return.
(i) The amounts received by the Bureau for Child Support Enforcement shall be distributed
in accordance with the provisions for distribution set forth in 42 U.S.C. §657. The commission shall
promulgate a legislative rule to establish the appropriate distribution as may be required by the
federal law.
§48-18-119. Obtaining support from unemployment compensation benefits.
(a) The Commissioner shall determine on a periodic basis whether individuals receiving
unemployment compensation owe child support obligations which are being enforced or have been
requested to be enforced by the Bureau for Child Support Enforcement. If an individual is receiving
such compensation and owes any such child support obligation which is not being met, the Bureau
for Child Support Enforcement shall enter into an agreement with such individual to have specified
amounts withheld otherwise payable to such individual, and shall submit a copy of such agreement
to the Bureau of employment programs. In the absence of such agreement, the Bureau for Child Support Enforcement shall bring legal process to require the withholding of amounts from such
compensation.
(b) The Secretary shall enter into a written agreement with the Bureau of Employment
Programs for the purpose of withholding unemployment compensation from individuals with unmet
support obligations being enforced by the Bureau for Child Support Enforcement. The Bureau for
Child Support Enforcement shall agree only to a withholding program that it expects to be cost
effective, and, as to reimbursement, shall agree only to reimburse the Bureau of employment
programs for its actual, incremental costs of providing services to the Bureau for Child Support
Enforcement.
(c) The commission shall promulgate a procedural rule for selecting cases to pursue through
the withholding of unemployment compensation for support purposes. This rule shall be designed
to ensure maximum case selection and minimal discretion in the selection process.
(d) The commissioner shall, not less than annually, provide a receipt to an individual who
requests a receipt for the support paid through the withholding of unemployment compensation, if
receipts are not provided through other means.
(e) The Commissioner shall, through direct contact with the Bureau of Employment
Programs, process cases through the Bureau of Employment Programs in this state, and shall process
cases through support enforcement agencies in other states. The Commissioner shall receive all
amounts withheld by the Bureau of Employment Programs in this state, forwarding any amounts
withheld on behalf of support enforcement agencies in other states to those agencies.
(f) At least one time per year, the commission shall review and document program
operations, including case selection criteria established under subsection (c) of this section, and the
costs of the withholding process versus the amounts collected and, as necessary, modify procedures
and renegotiate the services provided by the Bureau of employment programs to improve program
and cost effectiveness.
(g) (b) For the purposes of this section:
(1) 'Legal process' means a writ, order, summons or other similar process in the nature of
garnishment which is issued by a court of competent jurisdiction or by an authorized official
pursuant to an order to such court or pursuant to state or local law.
(2) 'Unemployment compensation' means any compensation under state unemployment
compensation law (including amounts payable in accordance with agreements under any federal
unemployment compensation law). It includes extended benefits, unemployment compensation for
federal employees, unemployment compensation for ex-servicemen, trade readjustment allowances,
disaster unemployment assistance, and payments under the Federal Redwood National Park
Expansion Act.
§48-18-121. Providing information to consumer reporting agencies; requesting consumer
credit reports for child support purposes.
(a) For purposes of this section, the term 'consumer reporting agency' means any person who,
for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part,
in the practice of assembling or evaluating consumer credit information or other information on
consumers for the purpose of furnishing consumer reports to third parties.
(b) The Commission Commissioner shall propose and adopt a procedural rule in accordance
with the provisions of sections four and eight, article three, chapter twenty-nine-a of this code,
establishing establish procedures whereby information regarding the amount of overdue support
owed by an obligor will be reported periodically by the Bureau for Child Support Enforcement to
any consumer reporting agency, after a request by the consumer reporting agency that it be provided
with the periodic reports.
(1) The procedural rule adopted by the commission procedures shall provide that any
information with respect to an obligor shall be made available only after notice has been sent to the
obligor of the proposed action, and such obligor has been given a reasonable opportunity to contest
the accuracy of the information.
(2) The procedural rule adopted procedures shall afford the obligor with procedural due
process prior to making information available with respect to the obligor.
(c) The information made available to a consumer reporting agency regarding overdue
support may only be made available to an entity that has furnished evidence satisfactory to the
Bureau that the entity is a consumer reporting agency as defined in subsection (a) of this section.
(d) The Bureau for Child Support Enforcement may impose a fee for furnishing such
information, not to exceed the actual cost thereof.
(e) The Commissioner of the Bureau for Child Support Enforcement, or her or his designee,
may request a consumer reporting agency to prepare and furnish to the Bureau for Child Support
Enforcement a consumer report for purposes relating to child support, by certifying to the consumer
reporting agency that:
(1) The consumer report is needed for the purpose of establishing an individual's capacity to
make child support payments or determining the appropriate level of such payments in order to set
an initial or modified child support award;
(2) The paternity of the child of the individual has been established or acknowledged by the
individual in accordance with state law;
(3) The individual whose report is being requested has been given at least ten days' prior
notice of such the request by certified mail to his or her last known address that such report is being
requested; and
(4) The consumer report will be kept confidential, will be used solely for a purpose described
in subdivision (1) of this subsection and will not be used in connection with any other civil,
administrative or criminal proceeding or for any other purpose.
ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY
§48-19-102. Appointment of Bureau for Child Support Enforcement attorneys
(a) The Bureau for Child Support Enforcement shall employ twenty-one employees in the
position of Bureau for Child Support Enforcement attorney, and the offices of the Bureau for Child
Support Enforcement attorneys shall be distributed geographically so as to provide an office for each
of the following areas of the state:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer, Monroe and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier and Pocahontas;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
(b) (a) Each Bureau for Child Support Enforcement attorney shall be appointed by the
Commissioner of the Bureau for Child Support Enforcement. The Bureau for Child Support
Enforcement attorneys shall be duly qualified attorneys licensed to practice in the courts of this state.
Bureau for Child Support Enforcement attorneys shall be exempted from the appointments in the
indigent cases which would otherwise be required pursuant to article twenty-one, chapter twenty-
nine of this code.
(c) (b) Nothing contained herein shall prohibit the Commissioner from temporarily assigning,
from time to time as caseload may dictate, a Bureau for Child Support Enforcement attorney from
one geographical area to another geographical area.
(d) (c) The Bureau for Child Support Enforcement attorney is an employee of the Bureau for
Child Support Enforcement."
And,
By amending the title of the bill to read as follows:
H. B. 3094- "A Bill to repeal §48-14-419 of the Code of West Virginia, 1931, as amended;
to repeal §48-16-308 of said code; to repeal §48-18-109 and §48-18-127 of said code; to amend and
reenact §48-17-101 of said code; to amend and reenact §48-18-103, §48-18-108, §48-18-112, §48-
18-113, §48-18-117, §48-18-118, §48-18-119, §48-18-121 of said code; and to amend and reenact
§48-19-102 said code, all relating to child support enforcement; repealing authority of the West
Virginia Support Enforcement Commission to promulgate rules; repealing certain duties of the
commission; repealing authority of Bureau of Child Support Enforcement to contract for certain
services; repealing authority of commission to adopt form to identify support payments; increasing
the number of members on the Commission; altering the organization of certain Bureau employees;
removing commission authority to promulgate fee rules; authorizing the Commissioner of the Bureau
of Child Support Enforcement to cooperate with other states in the enforcement of child support;
moving certain rulemaking authority from the Commission to the Commissioner; removing
commission authority to require certain bonding requirements of Bureau employees; moving
authority from Commission to the Commissioner relating to collecting child support from state and
federal taxes; revising requirements relating to withholding child support payments from the Bureau
of Employment Programs; and removing geographic delineations for certain Bureau attorneys.
"
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. 689), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3094) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
S. C. R. 65, Designating month of December, 2005, Legislators Back to School Month,
And,
S. C. R. 91, Requesting Joint Committee on Government and Finance direct Legislative
Oversight Commission on Health and Human Resources Accountability study availability and
distribution of long-term care beds in state,
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolutions (S. C. R. 65 and
S. C. R. 91) were each taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Still being in possession of the Clerk, H. B. 2777, Making technical changes concerning
High-Tech research zones, parks and technology centers and tax incentives relating thereto, was
taken up for further consideration.
On motion of Delegate Staton, the House of Delegates reconsidered the effective date and
the passage of the bill.
At the request of Delegate Staton and by unanimous consent, the rule was suspended to
permit the offering and consideration of an amendment on third reading.
On motion of Delegate Staton, the bill was amended on page seven, section four, line twelve,
following the word "least" by striking the word "seven" and inserting the word "five".
On page eight, section four, line seven, following "(4)" by striking the word "of" and
inserting a comma.
And,
On page eight, section four, line eight, following "(b)" by inserting the words "of this
section".
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 690),
and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
Nays: Lane, Louisos, Overington and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 2777) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 691), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2777) 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.
Still being in possession of the Clerk, Com. Sub. for S. B. 226, Relating to cross-reporting
when abuse or neglect of individuals or animals suspected; penalties, was taken up for further
consideration.
On motion of Delegate Staton, the House of Delegates reconsidered the passage of the bill.
At the request of Delegate Staton and by unanimous consent, the rule was suspended to
permit the offering and consideration of amendments on third reading.
On motion of Delegate Amores the bill was amended on page four, line thirty-two, following
the word "in" by striking out the words "in a correctional facility" and inserting in lieu thereof "jail".
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 692),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 226) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Still being in possession of the Clerk, Com. Sub. for S. B. 268, Relating to underage
possession of beer and liquor; penalty, was taken up for further consideration.
On motion of Delegate Staton, the House of Delegates reconsidered the passage of the bill.
At the request of Delegate Staton and by unanimous consent, the rule was suspended to
permit the offering and consideration of an amendment on third reading.
On motion of Delegate Amores the bill was amended on page two, line six, after the word
"in" by striking the remainder of the bill and inserting in lieu thereof the following: "jail for a period
not to exceed seventy-two hours, or both fined and imprisoned or, in lieu of such fine and
incarceration, may, for the first offense, be placed on probation for a period not to exceed one year.
Any person under the age of eighteen years who purchases, consumes, sells, possesses or serves
nonintoxicating beer is guilty of a status offense as that term is defined in section four, article one,
chapter forty-nine of this code and, upon adjudication therefor, shall be referred to the Department
of Health and Human Resources for services, as provided in section eleven, article five of said
chapter.
(2) Nothing in this article, nor any rule or regulation of the Commissioner, shall prevent or
be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful
employment of any licensee, which may include the sale or delivery of nonintoxicating beer as
defined in this article. Further, nothing in this article, nor any rule or regulation of the
Commissioner, shall prevent or be deemed to prohibit any person who is less than eighteen but at
least sixteen years of age from being employed by a licensee whose principal business is the sale of
food or consumer goods or the providing of recreational activities, including, but not limited to,
nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores,
discount stores, grocery stores and convenience stores: Provided, That such person shall not sell or
deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit a person who is at least eighteen years of age
from purchasing or possessing nonintoxicating beer when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency
or the West Virginia Alcohol Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the alcohol beverage control statutes and
the rules and regulations of the Commissioner.
(b) Any person under the age of twenty-one years who, for the purpose of purchasing
nonintoxicating beer, misrepresents his or her age or who for such purpose presents or offers any
written evidence of age which is false, fraudulent or not actually his or her own or who illegally
attempts to purchase nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof,
shall be fined an amount not to exceed fifty dollars or shall be imprisoned in jail for a period not to
exceed seventy-two hours, or both such fine and imprisonment or, in lieu of such fine and
imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.
(c) Any person who shall knowingly buy for, give to or furnish nonintoxicating beer to
anyone under the age of twenty-one to whom they are not related by blood or marriage is guilty of
a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one hundred
dollars or shall be imprisoned in the county jail for a period not to exceed ten days, or both such fine
and imprisonment.
(d)(1) Any person who at any one time transports into the state for their personal use, and not
for resale, more than six and seventy-five hundredths gallons of nonintoxicating beer, upon which
the West Virginia barrel tax has not been imposed, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed one hundred dollars and have all the
untaxed nonintoxicating beer in their possession at the time of the arrest confiscated, or imprisoned
for ten days in the county jail, or both fined and imprisoned.
(2) If the Congress of the United States repeals the mandate established by the Surface
Transportation Assistance Act of 1982 relating to national uniform drinking age of twenty-one as
found in section six of Public Law 98-363, or a court of competent jurisdiction declares the provision
to be unconstitutional or otherwise invalid, it is the intent of the Legislature that the provisions
contained in this section and section eighteen of this article which prohibit the sale, furnishing,
giving, purchase or ownership of nonintoxicating beer to or by a person who is less than twenty-one years of age shall be null and void and the provisions therein shall thereafter remain in effect and
apply to the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person
who is less than nineteen years of age.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-24. Unlawful acts by persons.
(a)(1) Any person who is eighteen or over but under the age of twenty-one years who
purchases, consumes, sells, serves or possesses alcoholic liquor is guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed five hundred dollars or shall be
incarcerated in the county jail for a period not to exceed seventy-two hours, or both fined and
imprisoned or, in lieu of such fine and incarceration, may, for the first offense, be placed on
probation for a period not to exceed one year. Any person who is under eighteen years who
purchases, consumes, sells, serves or possesses alcoholic liquor is guilty of a status offense, as that
term is defined in section four, article one, chapter forty-nine of this code and, upon adjudication
therefor, shall be referred to the Department of Health and Human Resources for services, as
provided in section eleven, article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the Commissioner, shall prevent or
be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful
employment of a licensee which includes the sale and serving of alcoholic liquor.
(3) Nothing in this subsection shall prohibit a person who is at least eighteen years of age
from purchasing or possessing alcoholic liquor when he or she is acting upon the request of or under
the direction and control of any member of a state, federal or local Law-enforcement Agency or the
West Virginia Alcohol Beverage Administration while the agency is conducting an investigation or
other activity relating to the enforcement of the alcohol beverage control statutes and the rules and
regulations of the Commissioner.
(b) Any person under the age of twenty-one years who, for the purpose of purchasing liquor
from a retail licensee, misrepresents his or her age or who for such purpose presents or offers any
written evidence of age which is false, fraudulent or not actually his or her own or who illegally attempts to purchase liquor from a retail licensee is guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed fifty dollars or imprisoned in the county jail for a
period not to exceed seventy-two hours, or both fined and imprisoned or, in lieu of such fine and
imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.
(c) Any person who knowingly buys for, gives to or furnishes to anyone under the age of
twenty-one to whom he or she is not related by blood or marriage any liquor from whatever source
is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one
hundred dollars or imprisoned in the county jail for a period not to exceed ten days, or both fined and
imprisoned.
(d) No person while on the premises of a retail outlet may consume liquor or break the seal
on any package or bottle of liquor. Any person who violates the provisions of this subsection is
guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one
hundred dollars or imprisoned in the county jail for a period not to exceed ten days, or both fined and
imprisoned."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 693),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 268) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 9:16 p.m., on motion of Delegate Staton, the House of Delegates recessed until 10:30 p.m.,
and reconvened at that time.
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. 3208, Adjusting the formula by which the Public Service Commission
distributes wireless enhanced 911 fee revenues to the counties.
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 everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-6b. Wireless enhanced 911 fee.
(a) Beginning on the first day of January, one thousand nine hundred ninety-eight, all All
CMRS providers, as defined in section two of this article, shall, on a monthly basis, collect from
each of their in-state two-way service subscribers a wireless enhanced 911 fee. No later than the first
day of August, one thousand nine hundred ninety-eight, the Public Service Commission, shall, after
the receipt of comments and the consideration of evidence presented at a hearing, issue an order
which directs the CMRS providers regarding all relevant details of wireless enhanced 911 fee
collection, including the determination of who is considered an in-state two-way service subscriber
and which shall specify how the CMRS providers shall deal with fee collection shortfalls caused by
uncollectible accounts. The Public Service Commission shall solicit the views of the wireless
telecommunications utilities prior to issuing the order.
(b) The wireless enhanced 911 fee is seventy-five cents per month for each valid retail
commercial mobile radio service subscription, as that term is defined by the Public Service
Commission in its order issued under subsection (a) of this section: Provided, That beginning on
the first day of July, two thousand five, the wireless enhanced 911 fee shall include an additional five
cents to be distributed to the West Virginia State Police to be used for equipment upgrades for
improving and integrating their communication efforts with those of the enhanced 911 systems.
(c) Beginning in the year one thousand nine hundred ninety-seven, and every two years
thereafter, the Public Service Commission shall conduct an audit of the wireless enhanced 911 fee
and shall recalculate the fee so that it is the weighted average rounded to the nearest penny, as of the
first day of March of the respecification year, of all of the enhanced 911 fees imposed by the counties which have adopted an enhanced 911 ordinance: Provided, That the wireless enhanced 911 fee may
never be increased by more than twenty-five percent of its value at the beginning of the
respecification year: Provided, however, That when the wireless enhanced 911 fee is recalculated
the additional five cents to the West Virginia State Police under subsection (a) of this section shall
be included.
(d) The CMRS providers shall, after retaining a three percent billing fee, send the wireless
enhanced 911 fee moneys collected, on a monthly basis, to the Public Service Commission. The
Public Service Commission shall, on a quarterly and approximately evenly staggered basis, disburse
the fee revenue in the following manner:
(1) Each county that does not have has a 911 ordinance in effect as of the effective date of
this section in the year two thousand five, or that has consolidated service with a county that has a
911 ordinance or has enacted a 911 ordinance within the five years prior to the effective date of this
section, shall receive one percent of the fee revenues received by the Public Service Commission.
and from the remainder of the revenues, each county shall receive a pro rata portion of the fee
revenues received by the Public Service Commission based on that county's percentage of the total
number of local exchange telephone access lines and line equivalents in service in the state. Then,
from any moneys remaining, each of those counties shall receive a pro rata portion of that remainder
based on that county's population as determined in the most recent decennial census as a percentage
of the state total population: Provided, That after the effective date of this section in the year two
thousand five when two or more counties consolidate to provide all services and one of them enacts
a 911 ordinance, those counties are eligible to receive funding under this subdivision. The Public
Service Commission shall recalculate the county disbursement percentages on a yearly basis, with
the changes effective on the first day of July, and using data as of the preceding first day of March.
The public utilities which normally provide local exchange telecommunications service by means
of lines, wires, cables, optical fibers or by other means extended to subscriber premises shall supply
the data to the Public Service Commission on a county specific basis no later than the first day of
June of each year;
(2) Counties which have an enhanced 911 ordinance in effect shall receive their share of the
wireless enhanced 911 fee revenue for use in the same manner as the enhanced 911 fee revenues
received by those counties pursuant to their enhanced 911 ordinances;
(3) The Public Service Commission shall deposit the wireless enhanced 911 fee revenue for
each county which does not have an enhanced 911 ordinance in effect into an escrow account which
it has established for that county. Any county with an escrow account may, immediately upon
adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow
account for use as specified in subdivision (2), subsection (d) of this section: Provided, That a county
that adopts a 911 ordinance after the effective date of this section or has adopted a 911 ordinance
within five years of the effective date of this section shall continue to receive one percent of the 911
fee revenue for a period of five years following the adoption of the ordinance and Thereafter, shall
receive that county's portion of the fee revenue, being disbursed to counties on a pro rata basis:
Provided, however, That every five years from the year one thousand nine hundred ninety-seven, all
fee revenue residing in escrow accounts shall be disbursed on the pro rata basis specified in
subdivision (1), subsection (d) of this section, except that data for counties without enhanced 911
ordinances in effect shall be omitted from the calculation and all escrow accounts shall begin again
with a zero balance.
(e) CMRS providers have the same rights and responsibilities as other telephone service
suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless
enhanced 911 fee.
(f) Notwithstanding the provisions of section one-a of this article, for the purposes of this
section, the term 'county' means one of the counties provided for in section one, article one, chapter
one of this code.
(g) From any funds distributed to a county pursuant to this section, a total of three percent
quarter shall be set aside in a special fund to be used exclusively for the purchase of equipment that
will provide information regarding the x and y coordinates of persons who call an emergency
telephone system through a commercial mobile radio service: Provided, That upon purchase of the necessary equipment, the special fund shall be dissolved and any surplus shall be used for general
operation of the emergency telephone system as may otherwise be provided by law."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3208 - "A Bill to amend and reenact §24-6-6b of the Code of West
Virginia, 1931, as amended, relating to the wireless enhanced 911 fee; raising the fee; earmarking
ten cents to the fee for the State Police; earmarking one million dollars of the fee for the construction
of wireless towers; creating the Enhanced 911 Wireless Tower Assistance Fund to be administered
by the Public Service Commission; authorizing the Commission to provide loans and matching
grants; use of towers for emergency services; authorizing the Commission to promulgate rules and
emergency rules; adjusting the formula by which the Public Service Commission distributes wireless
enhanced 911 fees to the counties; and allowing counties which consolidate government services to
receive one percent of fee for each county consolidated."
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. 694), and there were--yeas
71, nays 20, absent and not voting 9, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Carmichael, Duke, Frich, Hall, Hamilton, Howard, Lane,
Leggett, Louisos, Overington, Palumbo, Rowan, Schoen, Sobonya, Spencer, Sumner, Wakim and
Walters.
Absent And Not Voting: Brown, Doyle, Ferrell, Fragale, Hunt, Manchin, Marshall,
Stephens and Webster.
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. 3208) 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. 3280, Relating to modifying the review by the Public Service Commission of public
convenience and necessity applications where the project has been approved by the Infrastructure
and Jobs Development Council.
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 section and inserting in lieu thereof
the following:
"CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-25. Borrowing and bond issuance; procedure.
(a) Notwithstanding any other provisions of this article to the contrary, a public service
district may not borrow money, enter into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or exercise any of the powers conferred
by the provisions of section thirteen, twenty or twenty-four of this article, without the prior consent
and approval of the Public Service Commission.
(b) The Public Service Commission may waive the provision of prior consent and approval
for entering into contracts for engineering, design or feasibility studies pursuant to this section for
good cause shown which is evidenced by the public service district filing a request for waiver of this
section stated in a letter directed to the commission with a brief description of the project, a verified
statement by the board members that the public service district has complied with chapter five-g of
this code, and further explanation of ability to evaluate their own engineering contract, including,
but not limited to:
(1) Experience with the same engineering firm; or
(2) completion of a construction project requiring engineering services. The district shall also
forward an executed copy of the engineering contract to the commission after receiving approval of
the waiver.
(c) An engineering contract that meets one or more of the following criteria is exempt from
the waiver or approval requirements:
(1) A contract with a public service district that is a Class A utility on the first day of April,
two thousand three, or subsequently becomes a Class A utility as defined by commission rule;
(2) A contract with a public service district that does not require borrowing and that can be
paid out of existing rates;
(3) A contract where the payment of engineering fees are contingent upon the receipt of
funding, and commission approval of the funding, to construct the project which is the subject of the
contract; or
(4) A contract that does not exceed fifteen thousand dollars.
(d) Requests for approval or waivers of engineering contracts shall be deemed granted thirty
days after the filing date unless the staff of the Public Service Commission or a party files an
objection to the request. If an objection is filed, the Public Service Commission shall issue its
decision within one hundred twenty days of the filing date. In the event objection is received to a
request for a waiver, the application shall be considered a request for waiver as well as a request for
approval in the event a waiver is not appropriate.
(e) Unless the properties to be constructed or acquired represent ordinary extensions or
repairs of existing systems in the usual course of business, a public service district must first obtain
a certificate of public convenience and necessity from the Public Service Commission in accordance
with the provisions of chapter twenty-four of this code, when a public service district is seeking to
acquire or construct public service property.
Thirty days prior to making formal application for the certificate, the public service district
shall prefile with the Public Service Commission its plans and supporting information for the project
in a manner prescribed by Public Service Commission rules and regulations.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and necessity.
(a) No public utility, person or corporation shall begin the construction of any plant, equipment, property or facility for furnishing to the public any of the services enumerated in section
one, article two of this chapter, nor apply for, nor obtain any franchise, license or permit from any
municipality or other governmental agency, except ordinary extensions of existing systems in the
usual course of business, unless and until it shall obtain from the Public Service Commission a
certificate of public convenience and necessity requiring authorizing such construction franchise,
license or permit
(b) Upon the filing of any application for such certificate, and after hearing, the commission
may, in its discretion, issue or refuse to issue, or issue in part and refuse in part, such certificate of
convenience and necessity: Provided, That the commission, after it gives proper notice and if no
protest is received within thirty days after the notice is given, may waive formal hearing on the
application. Notice shall be given by publication which shall state that a formal hearing may be
waived in the absence of protest, made within thirty days, to the application. The notice shall be
published as a Class I legal advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code. The publication area shall be the proposed area of operation.
(c) Any public utility, person or corporation subject to the provisions of this section shall give
the commission at least thirty days' notice of the filing of any such application for a certificate of
public convenience and necessity under this section: Provided, That the commission may modify or
waive the thirty-day notice requirement and shall waive the thirty day notice requirement for projects
approved by the infrastructure and jobs development council.
(d) The commission shall render its final decision on any application filed after the thirtieth
day of June, one thousand nine hundred eighty-one, under the provisions of this section or section
eleven-a of this article within two hundred seventy days of the filing of the application and within
ninety days after final submission of any such application for decision following a hearing:
(e) The commission shall render its final decision on any application filed under the
provisions of this section that has received the approval of the Infrastructure and Jobs Development
Council pursuant to article fifteen-A of chapter thirty-one of this code, within one hundred-eighty
days after filing of the application: Provided, that if a protest is received within thirty days after the notice is provided pursuant to subsection (b), the commission shall render its final decision within
two hundred seventy days of the filing of the application.
(f) If the projected total cost of the a project which is the subject of an application filed
pursuant to this section or section eleven-a of this article is greater than fifty million dollars, the
commission shall render its final decision on any such application filed under the provisions of this
section or section eleven-a of this article within four hundred days of the filing of the application and
within ninety days after final submission of any such application for decision after a hearing.
(g) If such a decision is not rendered within the aforementioned one hundred eighty-days, two
hundred seventy days, four hundred days or ninety days, the commission shall issue a certificate of
convenience and necessity as applied for in the application.
(h) The commission shall prescribe such rules and regulations as it may deem proper for the
enforcement of the provisions of this section; and, in establishing that public convenience and
necessity do exist, the burden of proof shall be upon the applicant.
(b)(i) Pursuant to the requirements of subsection (a) of this section the commission may issue
a certificate of public convenience and necessity to any intrastate pipeline, interstate pipeline, or local
distribution company for the transportation in intrastate commerce of natural gas used by any person
for one or more uses, as defined, by rule, by the commission in the case of
(1) Natural gas sold by a producer, pipeline or other seller to such person; or
(2) Natural gas produced by such person.
(j) A public utility which has received a certificate of public convenience and necessity from
the commission and has been approved by the infrastructure and jobs development council, is not
required to, and cannot be compelled to, reopen the proceeding if the cost of the project changes but
the change does not effect the rates established for the project.
(k) Any public utility, person or corporation proposing any electric power project that
requires a certificate under this section is not required to obtain such certificate before applying for
or obtaining any franchise, license or permit from any municipality or other governmental agency."
And,
By amending the title of the bill to read as follows:
H. B. 3280- "A Bill to amend and reenact §16-13A-25 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §24-2-11 of said code, all relating to modifying the review
by the Public Service Commission of public convenience and necessity applications where the
project has been approved by Infrastructure and Jobs Development Council; removing the necessity
for public service districts to prefile with the public service commission; providing for a waiver of
thirty day notice requirement for projects approved by the Infrastructure and Jobs Development
Council; providing that the public service commission render a final decision on infrastructure and
jobs development council approved applications; providing that infrastructure and jobs development
council approved projects receiving a certificate of public convenience may not be compelled to
reopen; and allowing electric power projects to apply for and receive certain licenses and permits."
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. 695), and there were--yeas
91, nays 2, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Louisos and Sobonya.
Absent And Not Voting: Brown, Fragale, Hunt, Manchin, Marshall, Stephens and
Webster.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3280) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Special Calendar
Third Reading
S. B. 159, Creating Consolidated Local Government Act; on third reading, coming up in
regular order, was then postponed until later in today's session..
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County; on third reading,
coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 696),
and there were--yeas 78, nays 13, absent and not voting 9, with the nays and absent and not voting
being as follows:
Nays: Armstead, Border, Canterbury, Duke, Hall, Lane, Leggett, Louisos, Overington,
Schoen, Sobonya, Stevens and Sumner.
Absent And Not Voting: Brown, Caputo, Fragale, Hunt, Manchin, Marshall, Stephens,
Tansill and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 166) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 697), and there were--yeas 89, nays
5, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Canterbury, Duke, Louisos, Overington and Sobonya.
Absent And Not Voting: Brown, Hunt, Manchin, Marshall, Stephens and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 166) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 237, Allowing municipalities to increase hotel occupancy tax; on third reading, coming
up in regular order, was then postponed until later in today's session..
S. B. 289, Allowing fill material in waters of state; definition; having been read a second time
in earlier proceedings, and advanced to third reading with the right to amend, was taken up for
further consideration.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 698), and there were--yeas 80, nays
14, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Canterbury, Duke, Hamilton, Hatfield, Hrutkay, Longstreth, Louisos, Mahan, Martin,
Moore, Perdue, Poling, Thompson, Rick and Wells.
Absent And Not Voting: Brown, Hunt, Manchin, Marshall, Stephens, and Webster.
So, four fifths of the members present having voted in the affirmative, the constitutional rule
was dispensed with.
S. B. 406, Establishing Uniform Environmental Covenants Act; on third reading, coming up
in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 699),
and there were--yeas 90, nays 4, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Canterbury, Martin, Palumbo and Stevens.
Absent And Not Voting: Brown, Hunt, Manchin, Schoen, Stephens and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 406) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 558, Relating to management and investment of public funds; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 700),
and there were--yeas 83, nays 11, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Mr. Speaker, Mr. Kiss, Armstead, Browning, Canterbury, Carmichael, Duke, Lane,
Louisos, Sobonya, Walters and G. White.
Absent And Not Voting: Brown, Houston, Hunt, Manchin, Stephens and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 558) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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:
S. B. 421, Relating to apportionment of damages in court actions involving tortious conduct
in certain cases.
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 of the House amendment, by striking out everything after the article heading
and inserting in lieu thereof the following:
"§55-7-23. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of more than one defendant, the trial
court shall:
(1) Instruct the jury to determine, or, if there is no jury, find, the total amount of damages
sustained by the claimant and the proportionate fault of each of the parties in the litigation at the time
the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable on the basis of the rules of joint
and several liability, except that if any defendant is twenty-five thirty percent or less at fault, then
that defendant's liability shall be several and not joint and he or she shall be liable only for the
damages attributable to him or her, except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this section, the rules of joint and
several liability shall apply to:
(1) Any party who acted with the intention of inflicting injury or damage;
(2) Any party who acted in concert with another person as part of a common plan or design
resulting in harm;
(3) Any party who negligently or willfully caused the unlawful emission, disposal or spillage
of a toxic or hazardous substance; or
(4) Any party strictly liable for the manufacture and sale of a defective product.
(c) Notwithstanding subdivision (2), subsection (a) of this section, if a claimant through good
faith efforts is unable to collect from a liable defendant, the claimant may, not later than six months
after judgment becomes final through lapse of time for appeal or through exhaustion of appeal,
whichever occurs later, move for reallocation of any uncollectible amount among the other parties
in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall determine whether all or part of a
defendant's proportionate share of the verdict is uncollectible from that defendant and shall
reallocate such uncollectible amount among the other parties in the litigation at the time the verdict
is rendered, including a claimant at fault according to their percentages of fault: Provided, That the
court shall not reallocate to any defendant an uncollectible amount greater than that defendant's
percentage of fault multiplied by such uncollectible amount.
(2) If such a motion is filed, the parties may conduct discovery on the issue of collectability
prior to a hearing on such motion.
(3) Any order regarding such motion shall be entered within one hundred twenty days after
the date of filing such a motion.
(4) A defendant's share of the obligation to a claimant may not be increased by reason of
reallocation under this subsection if:
(A) The percentage of fault of that defendant is equal to or less than the claimant's percentage
of fault; or
(B) The percentage of fault of that defendant is less than ten percent.
(5) A party whose liability is reallocated is nonetheless subject to contribution and to any
continuing liability to the claimant on the judgment.
(6) If any defendant's share of the obligation to a claimant is not increased by reason of the
application of subdivision (4) of this subsection, the amount of that defendant's share of the
reallocation shall be considered uncollectible and shall be reallocated among all other parties who
are not subject to subdivision four of this subsection, including the claimant, in the same manner as
otherwise provided this subsection.
(d) Nothing in this section may be construed to affect, impair or abrogate any right of
indemnity or contribution arising out of any contract or agreement or any right of indemnity
otherwise provided by law.
(e) Nothing in this section creates or recognizes, either explicitly or impliedly, any new or
different cause of action not otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair or abrogate the provisions of
section seven, article twelve-a, chapter twenty-nine of this code or section nine, article seven-b of
this chapter.
(g) This section applies only to causes of action that accrue on or after the first day of July,
two thousand five."
And,
By amending the title of the bill to read as follows:
S. B. 421 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §55-7-23, relating to the apportionment of damages in court actions
involving the tortious conduct of more than one person; allowing for several liability for certain
defendants; allowing for several liability subject to reallocation for certain defendants; and providing
for several liability for defendants that are found to be less than thirty percent at fault under certain
circumstances."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendments.
Delegate Schoen requested to be excused from voting on the passage of the bill under the
provisions of House Rule 49.
The Speaker then excused the Lady from voting.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 701),
and there were--yeas 77, nays 18, absent and not voting 4, excused from voting 1, with the nays and
absent and not voting and excused being as follows:
Nays: Argento, Barker, Butcher, DeLong, Eldridge, Fragale, Hrutkay, Iaquinta, Martin,
Miley, Moore, Perdue, Poling, Spencer, Susman, Thompson, Rick, Webster and Yost.
Excused from Voting: Schoen
Absent And Not Voting: Ferrell, Hunt, Leggett and Manchin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 421) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Special Calendar
Third Reading
S. B. 159, Creating Consolidated Local Government Act; on third reading, coming up in
regular order, was reported by the Clerk.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly
read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 702), and there were--yeas 68, nays
32, absent and not voting none, with the nays being as follows:
Nays: Anderson, Argento, Barker, Blair, Border, Butcher, Canterbury, Caputo, Duke,
Eldridge, Ellem, Evans, Hamilton, Hrutkay, Lane, Leggett, Longstreth, Louisos, Manchin, Martin,
Perdue, Porter, Rowan, Schadler, Schoen, Stevens, Susman, Talbott, Tansill, Thompson, Rick,
Walters and White, G.
So, four fifths of the members present having not voted in the affirmative, the constitutional
rule was not dispensed with.
Messages from the Senate
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
Com. Sub. for S. B. 418, Relating generally to regulation of insurance.
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 thirty-six, section six, by striking out all of subdivision (e) and inserting in lieu
thereof a new subdivision (e), to read as follows:
"(e)(1) Provide restitution from the Unfair Claims Settlement Practice Trust Fund to a
claimant who has suffered damages as a result of a general business practice or from an egregious
act by a person whether or not the act constituted a pattern corresponding to an unfair claim
settlement practice committed with such frequency as to constitute a general business practice.
(2) Restitution provided herein may include: (A) Actual economic damages; and (B)
noneconomic damages not to exceed ten thousand dollars. Restitution may not be given for attorney
fees and punitive damages."
On page thirty-six, section six, line twenty-two, by striking out the word "subsection" and
inserting lieu thereof the word "subdivision".
And,
On page thirty-six, section six, line twenty-five, by striking out the word "subsection" and
inserting lieu thereof the word "subdivision".
Delegate Schoen then requested a ruling on Rule 49, stating that she had been a victim of a
car accident and that the accident had not yet gone to court.
To the request of Delegate Schoen, the Speaker stated that she demonstrated a potential third-
party claim which had not yet been filed, and that because it was uncertain whether she had a direct
pecuniary interest in the passage of the bill, he ruled that because of the lack of pecuniary interest,
she would be required to vote, but further ruled that due to the personal interest she demonstrated,
he excused her from voting on the passage of the bill.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 703),
and there were--yeas 76, nays 23, excused from voting 1, with the nays and excused being as
follows:
Nays: Argento, Barker, Boggs, Brown, Butcher, Caputo, Eldridge, Fragale, Hatfield,
Hrutkay, Iaquinta, Longstreth, Manchin, Martin, Miley, Moore, Perdue, Spencer, Susman,
Thompson, Rick, Walters, Webster and Wells.
Excused from Voting: Schoen
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 418) 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. 2266, Imposing a one hundred dollar per year fee for licenses allowing wine sampling
events by wine retailers.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section three, lines forty-three through forty-four, by striking out all of
subdivision (8) and inserting a new subdivision (8), to read as follows:
"(8) No fee shall be charged for a special one-day license under subsection (o) of this section
or for a heritage fair and festival license under subsection (p) of this section."
On page nine, section three, line one hundred thirty-eight, after the word "article" by
changing the period to a colon and inserting the following proviso: "Provided, That a licensed restaurant may offer for sale off the premises, sealed bottles of wine produced by a West Virginia
farm winery."
On page eleven, section three, line one hundred ninety-one, after the word "educational" by
striking out the comma and the word "political".
And,
On page twelve, section three, after line one hundred ninety-nine, by adding a new
subsection, designated subsection (p), to read as follows:
"(p) The Commissioner may issue special licenses to heritage fairs and festivals allowing the
sale, serving and sampling of wine from a West Virginia farm winery. The license application shall
contain information required by the Commissioner and shall be submitted to the Commissioner at
least thirty days prior to the event. Wines used during these events may be donated by or purchased
from a West Virginia farm winery. Under no circumstances may the provision of subsection (c),
section twenty of this article be waived nor may any exception be granted with respect thereto. The
Commissioner shall propose rules for legislative approval in accordance with article three, chapter
twenty-nine-a of this code to implement the provisions of this subsection."
On motion of Delegate Michael, the House of Delegates concurred in the Senate amendment,
with amendment, as follows:
On page nine, section three, line one hundred thirty-eight, following the word "licensed", by
striking out the words "restaurant may offer for sale off the premises" and inserting in lieu thereof
the words "private wine restaurant may offer for sale for consumption off the premises".
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 704), and there were--yeas
94, nays 6, absent and not voting none, with the nays being as follows:
Nays: Armstead, Lane, Leggett, Overington, Sobonya and Walters.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2266) passed.
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 amendment, a bill of
the House of Delegates as follows:
H. B. 2780, Relating to increasing the allocation of racetrack video lottery net terminal
income to be used for payment into the pension plan for employees of the Licensed Racing
Association.
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 section and inserting in lieu thereof
the following:
"ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol
data; distribution of net terminal income; remittance through electronic
transfer of funds; establishment of accounts and nonpayment penalties;
commission control of accounting for net terminal income; settlement of
accounts; manual reporting and payment may be required; request for
reports; examination of accounts and records.
(a) The commission shall provide to manufacturers, or applicants applying for a
manufacturer's permit, the protocol documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the commission's central computer for
transmitting auditing program information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the commission
through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the timely transfer of moneys to the
commission. Licensed racetracks must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the commission, the commission shall deduct an
amount sufficient to reimburse the commission for its actual costs and expenses incurred in
administering racetrack video lottery at the licensed racetrack, and the resulting amount after the
deduction is the net terminal income. The amount deducted for administrative costs and expenses
of the commission may not exceed four percent of gross terminal income: Provided, That any
amounts deducted by the commission for its actual costs and expenses that exceeds its actual costs
and expenses shall be deposited into the state lottery fund. For all fiscal years beginning on or after
the first day of July, two thousand one, the commission shall not receive an amount of gross terminal
income in excess of the amount of gross terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, but four percent of any amount of gross terminal income
received in excess of the amount of gross terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, shall be deposited into the fund established in section
eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years
beginning on or after the first day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article.
The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover
all costs and expenses required to be expended by the licensed racetrack in connection with video
lottery operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net terminal income, which shall be paid
into the state lottery fund as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen percent of net terminal income at
a licensed racetrack shall be deposited in the special fund established by the licensee, and used for
payment of regular purses in addition to other amounts provided for in article twenty-three, chapter
nineteen of this code, on and after the first day of July, two thousand five, the rate shall be seven
percent of net terminal income;
(3) The county where the video lottery terminals are located shall receive two percent of the
net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter,
any amount in excess of the two percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack is located that has participated in the West Virginia
thoroughbred development fund since on or before the first day of January, one thousand nine
hundred ninety-nine shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, said fifty
percent to be divided among the municipalities on a per capita basis as determined by the most recent
decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter,
any amount in excess of the two percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this
proviso is located and where the racetrack has been located in a municipality within the county since
on or before the first day of January, one thousand nine hundred ninety-nine shall be divided, if
applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any
other county other that a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all
employees of the licensed racing association by making a deposit into a special fund to be
established by the racing commission to be used for payment into the pension plan for all employees
of the licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b,
article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding
development fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income; Provided, That for any racetrack
which does not have a breeder's program supported by the thoroughbred development fund or the
greyhound breeding development fund, the one and one-half percent provided for in this subdivision
shall be deposited in the special fund established by the licensee and used for payment of regular
purses, in addition to other amounts provided in subdivision (2) of this subsection and article twenty-
three, chapter nineteen of this code.
(6) The West Virginia racing commission shall receive one percent of the net terminal
income which shall be deposited and used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code.
(7) A licensee shall receive forty-seven forty-six and one-half percent of net terminal income.
(8) (A) The tourism promotion fund established in section twelve, article two, chapter five-b
of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year
beginning the first day of July, two thousand three, the tourism commission shall transfer from the
tourism promotion fund five million dollars of the three percent of the net terminal income described
in this section and section ten-b of this article into the fund administered by the West Virginia
economic development authority pursuant to section seven, article fifteen, chapter thirty-one of this
code, five million dollars into the capitol renovation and improvement fund administered by the
department of administration pursuant to section six, article four, chapter five-a of this code and five
million dollars into the tax reduction and federal funding increased compliance fund; and
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for
each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net
terminal income and the three percent of net terminal income described in paragraph (B), subdivision
(8), subsection (a), section ten-b of this article shall be distributed as provided in this paragraph as
follows:
(i) 1.375 percent of the total amount of net terminal income described in this section and in
section ten-b of this article shall be deposited into the tourism promotion fund created under section
twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income described in this section and in
section ten-b of this article shall be deposited into the development office promotion fund created
under section three-b, article two, chapter five-b of this code;
(iii) 0.5 percent of the total amount of net terminal income described in this section and in
section ten-b of this article shall be deposited into the research challenge fund created under section
ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the capitol renovation and improvement fund
administered by the department of administration pursuant to section six, article four, chapter five-a
of this code; and
(v) 0.0625 percent of the total amount of net terminal income described in this section and
in section ten-b of this article shall be deposited into the 2004 capitol complex parking garage fund
administered by the department of administration pursuant to section five-a, article four, chapter
five-a of this code;
(9) (A) On and after the first day of July, two thousand five, seven percent of net terminal
income shall be deposited into the workers' compensation debt reduction fund created in section
five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the
amount of money generated by this subdivision totals eleven million dollars, all subsequent
distributions under this subdivision shall be deposited in the special fund established by the licensee
and used for the payment of regular purses in addition to the other amounts provided for in article
twenty-three, chapter nineteen of this code;
(B) The deposit of the seven percent of net terminal income into the worker's compensation
debt reduction fund pursuant to this subdivision shall expire and not be imposed with respect to these
funds and shall be deposited in the special fund established by the licensee and used for payment of
regular purses in addition to the other amounts provided for in article twenty-three, chapter nineteen
of this code, on and after the first day of the month following the month in which the governor
certifies to the legislature that: (i) The revenue bonds issued pursuant to article two-d, chapter
twenty-three of this code, have been retired or payment of the debt service provided for, and (ii) that an independent certified actuary has determined that the unfunded liability of the old fund, as defined
in chapter twenty-three of this code, has been paid or provided for in its entirety; and
(10) The remaining one percent of net terminal income shall be deposited as follows:
(A) For the fiscal year beginning the first day of July, two thousand three, the veterans
memorial program shall receive one percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of the state capitol complex in
Charleston, West Virginia. The moneys shall be deposited in the state treasury in the division of
culture and history special fund created under section three, article one-i, chapter twenty-nine of this
code: Provided, That only after sufficient moneys have been deposited in the fund to complete the
veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not
more than twenty thousand dollars of the one percent of net terminal income provided for in this
subdivision shall be deposited into a special revenue fund in the state treasury, to be known as the
'John F. "Jack" Bennett Fund'. The moneys in this fund shall be expended by the division of
veterans affairs to provide for the placement of markers for the graves of veterans in perpetual
cemeteries in this state. The division of veterans affairs shall promulgate legislative rules pursuant
to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which
the funds are spent, determine the ability of the surviving spouse to pay for the placement of the
marker and setting forth the standards to be used to determine the priority in which the veterans
grave markers will be placed in the event that there are not sufficient funds to complete the
placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded
indebtedness on the veterans memorial, one hundred thousand dollars of the one percent of net
terminal income provided for in this subdivision shall be deposited in the special fund in the division
of culture and history created under section three, article one-i, chapter twenty-nine of this code and
be expended by the division of culture and history to establish a West Virginia veterans memorial
archives within the cultural center to serve as a repository for the documents and records pertaining
to the veterans memorial, to restore and maintain the monuments and memorial on the capitol
grounds: Provided, however, That five hundred thousand dollars of the one percent of net terminal
income shall be deposited in the state treasury in a special fund of the department of administration, created under section five, article four, chapter five-a of this code, to be used for construction and
maintenance of a parking garage on the state capitol complex; and the remainder of the one percent
of net terminal income shall be deposited in equal amounts in the capitol dome and improvements
fund created under section two, article four, chapter five-a of this code and cultural facilities and
capitol resources matching grant program fund created under section three, article one of this
chapter.
(B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited
in the state treasury in a special fund of the department of administration, created under section five,
article four, chapter five-a of this code, to be used for construction and maintenance of a parking
garage on the state capitol complex; and
(ii) The remainder of the one percent of net terminal income and all of the one percent of net
terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of this
article twenty-two-a shall be distributed as follows: The net terminal income shall be deposited in
equal amounts into the capitol dome and capitol improvements fund created under section two,
article four, chapter five-a of this code and the cultural facilities and capitol resources matching grant
program fund created under section three, article one, chapter twenty-nine of this code until a total
of one million five hundred thousand dollars is deposited into the cultural facilities and capitol
resources matching grant program fund; thereafter, the remainder shall be deposited into the capitol
dome and capitol improvements fund.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than
the gross terminal income from its operation of video lottery machines, to be electronically
transferred by the commission on dates established by the commission. Upon a licensed racetrack's
failure to maintain this balance, the commission may disable all of a licensed racetrack's video lottery
terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance
at a rate consistent with the amount charged for state income tax delinquency under chapter eleven
of this code. The interest shall begin to accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep accurate records of all income
generated by each video lottery terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery
terminals. Each licensed racetrack shall report to the commission any discrepancies between the
commission's statement and each terminal's mechanical and electronic meter readings. The licensed
racetrack is solely responsible for resolving income discrepancies between actual money collected
and the amount shown on the accounting meters or on the commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the
commission may make no credit adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission the maintenance log which
includes current mechanical meter readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter readings and the commission's records
cannot be reconciled, final disposition of the matter shall be determined by the commission. Any
accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the
commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not
operational or the commission notifies licensed racetracks that remittance by this method is required.
The licensed racetracks shall report an amount equal to the total amount of cash inserted into each
video lottery terminal operated by a licensee, minus the total value of game credits which are cleared
from the video lottery terminal in exchange for winning redemption tickets, and remit the amount
as generated from its terminals during the reporting period. The remittance shall be sealed in a
properly addressed and stamped envelope and deposited in the United States mail no later than noon
on the day when the payment would otherwise be completed through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions for
their respective video lottery terminals and other marketing information not considered confidential
by the commission. The commission may charge a reasonable fee for the cost of producing and
mailing any report other than the billing statements.
(i) The commission has the right to examine all accounts, bank accounts, financial statements
and records in a licensed racetrack's possession, under its control or in which it has an interest and
the licensed racetrack shall authorize all third parties in possession or in control of the accounts or
records to allow examination of any of those accounts or records by the commission.
(j) A license to operate video lottery games shall be granted, renewed or remain in full force
and effect notwithstanding the failure of the licensee to meet the requirements of subdivision six,
subsection (a), section seven, of this article."
And,
By amending the title of the bill to read as follows:
H. B. 2780- "A Bill to amend and reenact §29-22A-10 of the Code of West Virginia, 1931,
as amended, relating to racetrack video lottery; increasing the allocation of racetrack video lottery
net terminal income to be used for payment into the pension plan for employees of the Licensed
Racing Association and correspondingly reducing the allocation of racetrack video lottery net
terminal income to licensees; deleting provisions relating to a racetrack which does not have a
breeder's program supported by the Thoroughbred Development Fund or Greyhound Breeding
Development Fund, requiring the one and one-half percent of terminal net income designated for the
West Virginia Thoroughbred Development Fund to be diverted to the special Fund established by
the licensee and used for payment of regular purses; limiting allocation to workers' compensation
and providing for distribution of certain funds to be deposited in the special fund established by the
licensee and used for payment of regular purses; providing for expiration of certain income into the
Worker's Compensation Debt Reduction Fund; and providing for license to be granted, renewed or
maintained notwithstanding failure of licensee to meet certain requirements."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
with amendment, as follows:
On page fourteen, section ten, line three, following the word "commission" and the period
by deleting the entire subsection (j).
And,
By amending the title of the bill to read as follows:
H. B. 2780 - "A Bill to amend and reenact §29-22A-10 of the Code of West Virginia, 1931,
as amended, relating to racetrack video lottery; increasing the allocation of racetrack video lottery
net terminal income to be used for payment into the pension plan for employees of the Licensed
Racing Association and correspondingly reducing the allocation of racetrack video lottery net
terminal income to licensees; deleting provisions relating to a racetrack which does not have a
breeder's program supported by the Thoroughbred Development Fund or Greyhound Breeding
Development Fund, requiring the one and one-half percent of terminal net income designated for the
West Virginia Thoroughbred Development Fund to be diverted to the special Fund established by
the licensee and used for payment of regular purses; limiting allocation to workers' compensation
and providing for distribution of certain funds to be deposited in the special fund established by the
licensee and used for payment of regular purses; providing for expiration of certain income into the
Worker's Compensation Debt Reduction Fund."
Delegate DeLong requested to be excused from voting on the passage of H. B. 2780 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.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 705), and there were--yeas
87, nays 11, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Blair, Roberts, Schoen, Sobonya, Stevens,Deb, Sumner, Susman,
Trump and Wakim.
Absent And Not Voting: Leggett and Longstreth.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2780) passed.
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, a bill of
the House of Delegates as follows:
H. B. 2578, Increasing the ratios of professional and service personnel to students in net
enrollment.
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 five-a, line five, after the word "counties" by changing the comma to
a period, striking out the word "such" and inserting in lieu thereof the word "These".
On page two, section five-a, line sixteen, by striking out the word "such" and inserting in lieu
thereof the word "these".
On page four, section five-a, line forty-three, by striking out the word "utilize" and inserting
in lieu thereof the word "use".
On page four, section five-b, line four, after the word "the", by inserting the words "ratios
of".
On page four, section five-b, line four, after the word "per" by inserting the words "one
thousand".
On page four, section five-b, lines five through seven, by striking out the words "of the
counties who are paid from state funds through the state basic foundation program".
On page four, section five-b, line eleven, by striking out the words "was initially" and
inserting in lieu thereof the words "initially was".
On page five, section five-b, line twenty-one, by striking out the words "have also" and
inserting in lieu thereof the words "also have".
On page five, section five-b, line thirty-two, by striking out the words "further examine" and
inserting in lieu thereof the words "examine further".
On page two, by amending the enacting section to read as follows:
"That §18-2E-3e of the code of West Virginia, 1931, as amended, be repealed; and that §18-
9A-5a and §18-9A-5b of said code be amended and reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2578-"A Bill to repeal §18-2E-3e of the Code of West Virginia, 1931,
as amended; and to amend and reenact §18-9A-5a and §18-9A-5b of said code, all relating to
repealing section creating the West Virginia Science Education Enhancement Initiative Grant
Program; increasing the ratios of professional and service personnel to students in net enrollment;
establishing the ratios for certain school years; and making certain findings; stating legislative intent
to examine state basic foundation program and address staffing and other needs as indicated by
examination."
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. 706), and there were--yeas
100, nays none, absent and not voting none.
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. 2578) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 707), 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: Carmichael.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2578) takes effect July 1, 2005.
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. 2937, Relating to the replacement of individual life insurance policies and annuity
contracts.
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 §33-11-5a of the Code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be amended by adding thereto a new section, designated §33-13-48, all to read
as follows:
ARTICLE 11. UNFAIR TRADE PRACTICES.
§33-11-5a. Replacement of life insurance.
(a) As used in this section:
(1) 'Replacement' means any transaction in which new life insurance is to be purchased and
by reason of such transaction existing life insurance has been or is to be:
(A) Lapsed, forfeited, surrendered or otherwise terminated;
(B) Converted to reduced paid-up insurance, continued as extended term insurance or
otherwise reduced in value by the use of nonforfeiture benefits or other policy values;
(C) Amended so as to effect either a reduction in benefits or in the term for which coverage
would otherwise remain in force or for which benefits would be paid;
(D) Reissued with any reduction in cash value; or
(E) Pledged as collateral or subjected to borrowing, whether in a single loan or under a
schedule of borrowing over a period of time for amounts in the aggregate exceeding twenty-five
percent (25%) of the loan value set forth in the policy;
(2) 'Existing insurer' means the insurance company whose existing life insurance policy is
or will be terminated or otherwise affected in a replacement transaction;
(3) 'Replacing insurer' means the insurance company, including the same insurer or an
insurer in the same group of affiliated insurers, that issues new life insurance in a replacement
transaction; and
(4) 'Existing life insurance' means any life insurance in force including life insurance under
a binding or conditional receipt or a life insurance policy that is within an unconditional refund
period, but excluding life insurance obtained through the exercise of a dividend option.
(b) No replacing insurer shall issue any life insurance in a replacement transaction to replace
existing life insurance unless the replacing insurer shall agree in writing with the insured that:
(1) The new life insurance issued by the replacing insurer will not be contestable by it in the
event of such insured's death to any greater extent than the existing life insurance would have been
contestable by the existing insurer had such replacement not taken place provided, however, that this
paragraph shall not apply to that amount of insurance written and issued which exceeds the amount
of the existing life insurance; and
(2) The new life insurance issued by the replacing insurer may be voluntarily surrendered by
the insured at any time within thirty (30) days after its delivery to the insured in exchange for a full
refund of premiums paid by the replacing insurer to the insured.
(c) Unless otherwise specifically included, subsection (b) of this section shall not apply to:
(1) Annuities;
(2) Individual credit life insurance;
(3) Group life insurance, group credit life insurance and life insurance policies issued in
connection with a pension, profit-sharing or other benefit plan qualifying for tax deductibility of
premiums, provided, however, that as to any plan described in this subsection, full and complete
disclosure of all material facts shall be given to the administrator of any plan to be replaced;
(4) Variable life insurance under which the death benefits and cash values vary in accordance
with unit values of investments held in a separate account;
(5) An application to the existing insurer that issued the existing life insurance and a
contractual policy change or conversion privilege or a privilege of policy change granted by the
insurer is being exercised;
(6) Existing life insurance that is a nonconvertible term life insurance policy which will
expire in five (5) years or less and cannot be renewed; or
(7) Proposed life insurance that is to replace life insurance under a binding or conditional
receipt issued by the same company.
(d) For purposes of inducing or attempting to induce a policyholder to lapse, forfeit, borrow
against, surrender, retain, exchange, modify, convert, or otherwise alter or dispose of any insurance
policy or coverage, no person shall:
(1) Prepare, make or issue, or cause to be prepared, made or issued, any written or oral
misrepresentation of a material fact regarding the terms, conditions or benefits of either existing
insurance coverage or proposed replacement insurance coverage; or
(2) Omit information concerning a material fact regarding the terms, conditions or benefits
of either existing insurance coverage or proposed replacement insurance coverage.
(e) The provisions of this section shall have no further force and effect as of the effective date
of the emergency rule authorized by the provisions of section forty-eight, article thirteen of this
chapter.
ARTICLE 13B. REPLACEMENT OF LIFE INSURANCE AND ANNUITIES.
§33-13-48. Replacement of existing rule with model rule.
The Commissioner shall propose and file with the Secretary of State an emergency rule
pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code that is
based on the model regulation regarding the replacement of life insurance and annuities approved
by the National Association of Insurance Commissioners in nineteen ninety-eight and amended in
two thousand. This emergency rule will be effective upon approval by the Secretary of State and will
replace the legislative rule previously filed by the Commissioner on the sixteenth day of May,
nineteen ninety-seven as Title 114, Series 8 of the Code of State Rules: Provided, That the rule filed
as an emergency rule pursuant to this section shall be refiled at the earliest opportunity as a
legislative rule for review and promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code."
And,
By amending the title of the bill to read as follows:
H. B. 2937-"A Bill to amend and reenact §33-11-5a of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section, designated §33-13-48, all relating
to replacement of life insurance and annuities; unfair trade practices; and promulgation of emergency
and legislative rules."
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. 708), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2937) 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. 3098, Expanding the prohibitions and criminal penalties for sexual exploitation or
sexual abuse of a child by a parent, or guardian or custodian to include offenses by persons who
hold a position of trust in relation to a child.
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 8D. CHILD ABUSE.
§61-8D-1. Definitions.
In this article, unless a different meaning plainly is required:
(1) 'Abuse' means the infliction upon a minor of physical injury by other than accidental
means.
(2) 'Child' means any person under eighteen years of age not otherwise emancipated by law.
(3) 'Controlled substance' means controlled substance as that term is defined in subsection
(d), section one hundred one, article one, chapter sixty-a of this code.
(4) 'Custodian' means a person over the age of fourteen years who has or shares actual
physical possession or care and custody of a child on a full-time or temporary basis, regardless of
whether such person has been granted custody of the child by any contract, agreement or legal
proceeding. 'Custodian' shall also include, but not be limited to, the spouse of a parent, guardian
or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of
husband and wife, where such spouse or other person shares actual physical possession or care and
custody of a child with the parent, guardian or custodian.
(5) 'Guardian' means a person who has care and custody of a child as the result of any
contract, agreement or legal proceeding.
(6) 'Neglect' means the unreasonable failure by a parent, guardian, or any person voluntarily
accepting a supervisory role towards a minor child to exercise a minimum degree of care to assure
said minor child's physical safety or health.
(7) 'Parent' means the biological father or mother of a child, or the adoptive mother or father
of a child.
(8) 'Sexual contact' means sexual contact as that term is defined in section one, article eight-
b, chapter sixty-one of this code.
(9) 'Sexual exploitation' means an act whereby:
(A) A parent, custodian, or guardian or other person in a position of trust to a child, whether
for financial gain or not, persuades, induces, entices or coerces a the child to engage in sexually
explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code;
or
(B) A parent, guardian, or custodian or other person in a position of trust in relation to a child
persuades, induces, entices or coerces a the child to display his or her sex organs for the sexual
gratification of the parent, guardian, custodian, person in a position of trust or a third person, or to
display his or her sex organs under circumstances in which the parent, guardian, or custodian or other person in a position of trust knows such display is likely to be observed by others who would be
affronted or alarmed.
(10) 'Sexual intercourse' means sexual intercourse as that term is defined in section one,
article eight-b, chapter sixty-one of this code.
(11) 'Sexual intrusion' means sexual intrusion as that term is defined in section one, article
eight-b, chapter sixty-one of this code.
(12) A 'person in a position of trust in relation to a child' refers to any person who is acting
in the place of a parent and charged with any of a parent's rights, duties or responsibilities
concerning a child or someone responsible for the general supervision of a child's welfare, or any
person who by virtue of their occupation or position is charged with any duty or responsibility for
the health, education, welfare, or supervision of the child.
§61-8D-5. Sexual abuse by a parent, guardian
or custodian or person in a position of trust to
a child; parent, guardian, or custodian or person in a position of trust
allowing sexual abuse to be inflicted upon a child; displaying of sex
organs by a parent, guardian, or custodian; penalties.
(a) In addition to any other offenses set forth in this code, the Legislature hereby declares a
separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian
of or other person in a position of trust in relation to a child under his or her care, custody or control,
shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual
intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding
the fact that the child may have willingly participated in such conduct, or the fact that the child may
have consented to such conduct or the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct, then such parent, guardian, or
custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary not less than ten nor more than twenty years, or fined not less
than five hundred nor more than five thousand dollars and imprisoned in the penitentiary not less
than ten years nor more than twenty years.
(b) If any parent, guardian, or custodian or other person in a position of trust in relation to
the child shall knowingly procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care,
custody or control of such parent, guardian or custodian or person in a position of trust when such
child is less than sixteen years of age, notwithstanding the fact that the child may have willingly
participated in such conduct or the fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct, such parent, guardian, or custodian or
person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than five years nor more than fifteen years, or fined not less
than one thousand nor more than ten thousand dollars and imprisoned in the penitentiary not less
than five years nor more than fifteen years.
(c) If any parent, guardian or custodian or other person in a position of trust in relation to the
child shall knowingly procure another person to engage in or attempt to engage in sexual exploitation
of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or
control of such parent, guardian, or custodian or person in a position of trust when such child is
sixteen years of age or older, notwithstanding the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct, then such parent, guardian, or custodian or person in
a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the
penitentiary not less than one year nor more than five years.
(d) The provisions of this section shall not apply to a custodian or person in a position of trust
whose age exceeds the age of the child by less than four years."
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. 709), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3098) 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. 3138, Relating to requiring health insurance plans to cover the cost of contraceptives.
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 amending the title of the bill to read as follows:
Com. Sub. for H. B. 3138- "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §33-16E-1, §33-16E-2, §33-16E-3, §33-16E-4,
§33-16E-5, §33-16E-6 and §33-16E-7, all relating to insurance and contraceptive coverage;
providing definitions; specifying application of article; requiring health insurance plans provide
parity for contraceptive drugs, devices and outpatient services; and providing exemptions and
prohibitions."
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. 710), and there were--yeas
82, nays 17, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Cann, Carmichael, Eldridge, Ellem, Evans, Hall, Howard, Lane,
Overington, Schoen, Sobonya, Stevens, Sumner, Tansill and Walters.
Absent And Not Voting: Leggett.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. H. B. 3138) 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. 3152, Clarifying that the Board of Risk and Insurance Management is not to provide
insurance for every property, activity or responsibility of the county boards of education.
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 five-a, lines three and four, after the word "provide" by striking out the
comma and the words "at its discretion" and the comma.
And,
On page two, section five-a, line eight, after the word "Corrections" by changing the period
to a colon, striking out the word "The" and inserting in lieu thereof the words "Provided, That the".
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. 711), and there were--yeas
97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Rick Thompson and Walters.
Absent And Not Voting: Manchin.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3152) passed.
Delegate Staton moved that the bill take effect from passage.
On this question, the yeas and nays were taken (Roll No. 712), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3152) takes effect from 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. 3153, Establishing the crime of railroad vandalism.
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 clause and inserting in lieu thereof
the following:
"That §61-3-28 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
and that §61-3-41 of said code be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-28. Offenses against railroad property and persons on railroad property; definitions.
If any person maliciously obstruct, remove or injure any part of a railroad, traction line or
street railway, or canal, or any bridge or fixture thereof, or shall obstruct any machinery, work,
engine or motor thereof, or any conveyor of electricity or other power used by the same, whereby the
life of any traveler on such road or traction line or street railway is put in peril, he shall be guilty of
a felony, and, upon conviction, shall be confined in the penitentiary not less than one year.
(a) As used in this section:
(1) 'Bodily injury' means substantial physical pain, illness or any impairment of physical
injury.
(2) 'Railroad' means any form of nonhighway ground transportation that runs on rails or
electromagnetic guideways, including:
(i) Commuter or other short-haul railroad passenger service in a metropolitan or suburban
area; and
(ii) High-speed ground transportation systems that connect metropolitan areas but does not
include rapid transit operations in an urban area that are not connected to the general railroad system
of transportation;
(3) 'Railroad carrier' means a person providing railroad transportation; railroad carrier
including a right-of-way, track, bridge, yard, shop, station, tunnel, viaduct, trestle, depot, warehouse, terminal, railroad signal system, train control system, centralized dispatching system, or any other
structure, appurtenance, or equipment owned, leased, or used in the operation of any railroad carrier
including a train, locomotive, engine, railroad car, work equipment, rolling stock, or safety device.
'Railroad property' does not include administrative buildings, administrative offices, or
administrative office equipment;
(4) 'Right-of-way' means the track or roadbed owned, leased, or operated by a railroad carrier
which is located on either side of its tracks and which is readily recognizable to a reasonable person
as being railroad property or is reasonably identified as such by fencing or appropriate signs;
(5) 'Yard' means a system of parallel tracks, crossovers, and switches where railroad cars are
switched and made up into trains, and where railroad cars, locomotives and other rolling stock are
kept when not in use or when awaiting repairs.
(b) Whoever willfully damages or attempts to damage railroad property or willfully
endangers or attempts to endanger the safety of another, by:
(1) Taking, removing, altering, or otherwise vandalizing a railroad sign, placard or marker;
(2) Throwing or dropping an object capable of causing significant damage to railroad
property at or on a locomotive, railroad car or train;
(3) Shooting a firearm or other dangerous weapon at a locomotive, railroad car or train;
(4) Removing appurtenances from, damaging, or otherwise impairing the operation of any
railroad signal system, including a train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, on a railroad owned, leased, or operated by any
railroad carrier, and without consent of the railroad carrier involved;
(5) Interfering or tampering with, or obstructing in any way, any switch, frog, rail, roadbed,
sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or
connected with any railroad carrier without consent of the railroad carrier involved; or
(6) Taking, stealing, removing, changing, adding to, altering, or in any manner interfering
with any part of the operating mechanism of any locomotive, engine, tender, coach, car, caboose, or
motor car used or capable of being used by any railroad carrier in this state without consent of the
railroad carrier is guilty of a felony.
If railroad property damage does not exceed one thousand dollars and no bodily injury occurs
to another as a result of any of the aforesaid acts, upon conviction thereof, the person shall be fined
not more than five thousand dollars, confined in a regional jail for not more than one year, or both.
If bodily injury occurs to another not acting with or in connection with the perpetrator as a result of
any of the aforesaid acts or if railroad property damage exceeds one thousand dollars, upon
conviction thereof, the person shall be fined not more than ten thousand dollars, committed to the
custody of the Commission of Corrections for not less than one nor more than ten years, or both.
(d) The provisions of this section do not apply to any person employed by a railroad who is
performing the duties assigned by the railroad or who is otherwise performing within the scope of
his or her employment.
§61-3-41. Employees conservators of the peace; special railroad policemen; penalties.
Any person who shall willfully and unlawfully injure, impair, weaken, destroy or misplace
any building, bridge, rail, track, sidetrack, switch, rail bonds, spur track, work engine, machine,
locomotive, handcar, depot, car, trestle, telegraph line, telegraph pole, telegraph wire, telegraph
instrument, or any other instrument, machine, invention, or mechanical or electrical appliance
whatever, which may be, or now is used by any company operating or using any railroad or traction
line or system, or other line or work of internal improvement, in this state; or who shall obstruct any
corporation which is the owner or lessee of any railroad or traction line or system, or other work of
internal improvement, in this state, in the use of any such property, shall be guilty of a misdemeanor,
and, upon conviction, shall be fined not exceeding one thousand dollars and imprisoned not
exceeding six months. If the death of any person occur in consequence of any such unlawful act, the
person or persons committing the same shall be guilty of murder and punished accordingly. Or if
any person on a train, or locomotive, or passenger car, on any railroad or traction line or system, is
maimed or disfigured by reason of any such unlawful act, the person convicted of causing the same
shall be guilty of a felony, and shall be confined in the penitentiary not less than one nor more than
twenty years.
If any person shall shoot or throw stones, or other dangerous missiles at or into any passenger
car, or other railroad or traction car used for carrying passengers or other persons, while any such passenger or other person is within the same, he shall be guilty of a felony, and, upon conviction,
shall be confined in the penitentiary not less than one nor more than ten years. And if any person,
whether a passenger or not, shall, while on any passenger car or on any train of cars, behave in a
riotous or disorderly manner, he shall be guilty of a misdemeanor, and, upon conviction, shall be
fined not less than twenty-five nor more than two hundred dollars, and may, in the discretion of the
court, be confined in jail not less than one nor more than six months, and may be ejected from such
car or train by the person or persons in charge thereof; and such force as is necessary for that purpose
may be used by such person or persons in charge of such passenger car or train of cars, with such
other persons as they may call to their aid.
The conductor of every passenger car and flagmen flag person and brakemen brake person
employed on such car, as well as the conductor of every train of railroad or traction cars, shall have
all the powers of a conservator of the peace while in charge of such car or train.
Any railroad company owning, or leasing and operating, or using any railroad or traction line
or system lying wholly or partially within this state, whether such railroad be operated by steam or
electric power, may apply to the governor to appoint such citizen or citizens of this state as such
railroad company may designate, to act as special police officers for such railroad or traction
company, with the consent of such citizen or citizens; and the governor may, upon such application,
appoint and commission such person or persons, or so many of them as he may deem proper, as such
special police officers. Every police officer so appointed shall appear before some person authorized
to administer oaths and take and subscribe the oath prescribed in the fifth section of the fourth article
of the constitution, and shall file such oath with the clerk of the county commission, or other tribunal
in lieu thereof, of the county in which he shall reside. He or she shall also file certified copies of
such oath in the office of the secretary of state, and in the office of the clerk of the county
commission, or other tribunal established in lieu thereof, of each county through which such railroad
or any portion thereof may extend. Every police officer appointed under the provisions of this
section shall be a conservator of the peace within each county in which any part of such railroad may
be situated, and in which such oath or a certified copy thereof shall have been filed with the clerk
of the county commission or other tribunal established in lieu thereof; and, in addition thereto, he shall possess and may exercise all the powers and authority, and shall be entitled to all the rights,
privileges and immunities within such counties, as are now or hereafter may be vested in or
conferred upon a deputy sheriff of such county. Any appointment made by the governor under the
provisions of this section may be revoked by him or her for good cause shown, and such police
officers may be removed from office for official misconduct, incompetence, habitual drunkenness,
neglect of duty or gross immorality, in the same manner in which regularly elected or appointed
county officers may be removed from office. Whenever any such railroad company shall desire to
dispense with the services of any such police officer, it may file a notice to that effect, under its
corporate seal, attested by its secretary, in each of the several offices in which such oath or certified
copy thereof shall have been filed; and, thereupon, the powers of such the police officer shall cease
and determine. Such police Police officers may wear such uniform and badge of authority, or either,
as the railroad company, upon whose application they were appointed, may designate, and such
railroad company shall pay them for all services rendered by them pursuant to such his or her
appointment."
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. 713), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Caputo.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3153) 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. 3178, Relating to domestic violence and clarifying when permanent injunctions and
other provisions may be granted in final divorce orders.
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 section and inserting in lieu thereof
the following:
"ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party
from molesting or interfering with the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or visitation rights of the other. The order may
permanently enjoin the offending party from entering the school, business or place of employment
of the other for the purpose of molesting or harassing the other or from entering or being present in
the immediate environs of the residence of the petitioner or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the
other. The relief afforded by the provisions of this subsection may be ordered whether or not there
are grounds for relief under subsection (c) of this section and whether or not an order is entered
pursuant to such subsection.
(b) Any order entered by the court to protect a party from abuse may grant any other relief
authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party
seeking the relief has established the grounds for that relief as required by the provisions of said
article. The relief afforded by the provisions of this subsection may be ordered whether or not there
are grounds for relief under subsection (c) of this section and whether or not an order is entered
pursuant to subsection (c) of this section.
(c) The court, in its discretion, may enter a protective order, as provided by the provisions
of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part
of a order for final relief or in a separate written order. A protective order entered pursuant to the
provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days: Provided, That if the court determines that a violation of a
domestic violence protective order entered during or extended by the divorce action has occurred,
it the court may extend the protective order for whatever period the court deems necessary to protect
the safety of the petitioner and others threatened or at risk, if the court determines:
(A) That a violation of a protective order entered during or extended by the divorce action
has occurred; or
(B) Upon a motion for modification, that a violation of a provision of a final order entered
pursuant to this section has occurred.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief
provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.;
(b) If a person who has been granted relief under this article should subsequently become a
party to an action for divorce, separate maintenance or annulment, such person shall remain entitled
to the relief provided under this article including the right to file for and obtain any further relief, so
long as no temporary order has been entered in the action for divorce, annulment and separate
maintenance, pursuant to Part 5-501, et seq.;
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for
a petition and a temporary emergency protective order, no person who is a party to a pending action
for divorce, separate maintenance or annulment in which an order has been entered pursuant to Part
5-501, et seq. of this chapter, shall be entitled to file for or obtain relief against another party to that
action under this article until after the entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, when an action seeking a
divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas
corpus action to establish custody, the establishment of paternity, the establishment or enforcement
of child support, or other relief under the provisions of this chapter is filed or is reopened by petition,
motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1)
A temporary order other than a procedural order or a final order is entered pursuant to the provisions
of part 5-501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is entered modifying such
order issued pursuant to this article; or (3) the entry of a final order granting or dismissing the action.
§48-27-503. Permissive provisions in protective order.
The terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or household jointly resided in at
the time the abuse occurred;
(2) Ordering the respondent to refrain from entering or being present in the immediate
environs of the residence of the petitioner;
(2) (3) Awarding temporary custody of or establishing temporary visitation rights with regard
to minor children named in the order;
(3) (4) Establishing terms of temporary visitation with regard to the minor children named
in the order including, but not limited to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(4) (5) Ordering the noncustodial parent to pay to the caretaker parent a sum for temporary
support and maintenance of the petitioner and children, if any;
(5) (6) Ordering the respondent to pay to the petitioner a sum for temporary support and
maintenance of the petitioner, where appropriate;
(6) (7) Ordering the respondent to refrain from entering the school, business or place of
employment of the petitioner or household or family members for the purpose of violating the
protective order;
(7) (8) Ordering the respondent to participate in an intervention program for perpetrators;
(8) (9) Ordering the respondent to refrain from contacting, telephoning, communicating,
harassing or verbally abusing the petitioner.
(9) (10) Providing for either party to obtain personal property or other items from a location,
including granting temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this occurs, including ordering a law-enforcement
officer to accompany one or both of the parties.
(10) (11) Ordering the respondent to reimburse the petitioner or other person for any
expenses incurred as a result of the domestic violence, including, but not limited to, medical
expenses, transportation and shelter; and
(11) (12) Ordering the petitioner and respondent to refrain from transferring, conveying,
alienating, encumbering, or otherwise dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce or support, partition or in any other
action affecting their interests in property.
§48-27-504. Provisions in protective order for person witnessing or reporting domestic
violence.
When the person to be protected is a person who reported or was a witness to the domestic
violence, the terms of a protective order may order:
(1) The respondent to refrain from abusing, contacting, telephoning, communicating,
harassing, verbally abusing or otherwise intimidating the person to be protected; and
(2) The respondent to refrain from entering the school, business or place of employment of
the person to be protected for the purpose of violating the protective order; and
(3) The respondent to refrain from entering or being present in the immediate environs of the
residence of the petitioner.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically
present at any location:
(1) In knowing and willful violation of the terms of an emergency or final protective order
under the provisions of this article or sections 5-509 or 5-608 of this chapter granting the relief
pursuant to the provisions of this article;
(2) In knowing and willful violation of the terms of a protection order from another
jurisdiction that is required to be enforced pursuant to section 3, article 28 of this chapter; or
(3) In knowing and willful violation of the terms of a condition of bail, probation or parole
imposed in another state which has the express intent or effect of protecting the personal safety of
a particular person or persons in violation of section 28-7(a)(3) of this chapter then any person
authorized to file a petition pursuant to the provisions of section 27-305 or the legal guardian or
guardian ad litem may file a petition for civil contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal
complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for
arrest of the person charged.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor
children or the respondent's physical presence at any location in knowing and willful violation of the
terms of an emergency or final protective order issued under the provisions of this article or section
5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, in knowing
and willful violation of the terms of a protection order from another jurisdiction that is required to
be enforced pursuant to section four, article twenty-eight of this chapter, he or she shall immediately
arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the
provisions of section 27-903 or 28-7, a law-enforcement officer may arrest the perpetrator for said
offense where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in
subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or
written allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed
the offense.
(c) Any person who observes a violation of a protective order as described in this section, or
the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly
investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court
or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth
in this section has occurred, the court or magistrate shall set a time and place for a hearing in
accordance with the West Virginia rules of criminal procedure."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3178-"A Bill to amend and reenact §48-5-608 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §48-27-305, §48-27-401, §48-27-503, §48-
27-504, §48-27-901 and §48-27-1001 of said code, all relating to domestic violence generally;
extending protection to any residence expending bases for temporary protective orders; and authority
arrest for violations of out of state court orders."
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. 714), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3178) 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. 3236, Relating to the special reclamation tax and special tax on coal production,
providing that both of these taxes apply to thin seam coal and providing that the special reclamation
tax subject to the West Virginia Tax Crimes and Penalties Act and the West Virginia Tax Procedure
and Administration Act.
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 the Code of West Virginia, 1931, as amended, be amended by adding thereto two new
sections, designated §22-3-11a and §22-3-32a, all to read as follows:
"ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-11a. Special reclamation tax; clarification of imposition of tax; procedures for
collection and administration of tax; application of Tax Procedure and
Administration Act and Tax Crimes and Penalties Act.
(a) It is the intent of the Legislature to clarify that from the date of its enactment, the special
reclamation tax imposed pursuant to the provisions of section eleven of this article is intended to be
in addition to any other taxes imposed on persons conducting coal surface mining operations
including, but not limited to the tax imposed by section thirty-two of this article, the tax imposed by
article twelve-b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter
and the tax imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section eleven of this article to the contrary,
under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by
section eleven of this article.
(c) When coal included in the measure of the tax imposed by section eleven of this article is
exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by
section eleven of this article shall be paid to the tax commissioner in accordance with the provisions
of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code, which
provisions are hereby incorporated by reference in this article.
(d) General procedure and administration. -- Each and every provision of the 'West Virginia
Tax Procedure and Administration Act' set forth in article ten, chapter eleven of the code applies to
the special tax imposed by section eleven of this article with like effect as if such act were applicable only to the special tax imposed by said section eleven and were set forth in extenso in this article,
notwithstanding the provisions of section three of said article ten.
(e) Tax crimes and penalties. -- Each and every provision of the 'West Virginia Tax Crimes
and Penalties Act' set forth in article nine of said chapter eleven applies to the special tax imposed
by section eleven of this article with like effect as if such act were applicable only to the special tax
imposed by said section eleven and set forth in extenso in this article, notwithstanding the provisions
of section two of said article nine.
§22-3-32a. Special tax on coal; clarification of imposition of tax; procedures for collection and
administration of tax.
(a) It is the intent of the Legislature to clarify that from the date of its enactment, the special
tax on coal imposed pursuant to the provisions of section thirty-two of this article is intended to be
in addition to any other taxes imposed on every person in this state engaging in the privilege of
severing, extracting, reducing to possession or producing coal for sale profit or commercial use
including, but not limited to the tax imposed by section eleven of this article, the tax imposed by
article twelve-b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter
and the tax imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section thirty-two of this article to the contrary,
under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by
section thirty-two of this article.
(c) When coal included in the measure of the tax imposed by section thirty-two of this article
is exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by
section thirty-two of this article shall be paid to the tax commissioner in accordance with the
provisions of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code,
which provisions are hereby incorporated by reference in this article."
And,
By amending the title of the bill to read as follows:
H. B. 3236- " Bill to amend the code of West Virginia, 1931, as amended, by adding thereto
two new sections, designated §22-3-11a and 22-3-32a, all relating generally to the special
reclamation tax and special tax on coal production; clarifying that both of these taxes apply to
production of thin seam coal and providing for payment thereof; and providing that the special
reclamation is subject to the West Virginia Tax Crimes and Penalties Act and the West Virginia Tax
Procedure and Administration Act."
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. 715), and there were--yeas
89, nays 11, absent and not voting none, with the nays being as follows:
Nays: Frich, Hall, Lane, Louisos, Overington, Porter, Roberts, Schoen, Sumner, Trump and
Walters.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3236) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 716), and there were--yeas 92, nays
7, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael, Frich, Hall, Louisos, Overington, Sobonya and Sumner.
Absent And Not Voting: Brown.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3236) 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. 3354, Secretary's authority to assess a permit fee for well work permit, deep wells,
coalbed methane wells and reclamation fund fees.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page four, section two, line fifty-one, by striking out the word "and".
On page nineteen, section three, line six, by striking out the word "article" and inserting in
lieu thereof the word "articles".
On page twenty, section three, line eighteen and nineteen, by striking out the words "of this
code".
On page twenty-six, section six, line fifty-five, after the word "depth;" by inserting the word
"and".
On page twenty-six, section six, line sixty-two, by striking out the word "six" and inserting
in lieu thereof the word "two".
On page twenty-eight, section six, line ninety-seven, after the word "well;" by inserting the
word "and".
On page twenty-eight, section six, line one hundred thirteen, by striking out "[33 U. S. C.
1288]".
And,
On page thirty-two, section seven, line thirty-four, after the word "provided;" by inserting
the word "and".
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. 717), and there were--yeas
98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Cann.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3354) 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 refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund.
On motion of Delegate Staton, the House of Delegates receded from its amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 718),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 40) 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 concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
S. B. 348, Clarifying when audits are required of state funds or grants; penalty.
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 one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§12-4-14. Accountability of persons receiving state funds or grants; sworn statements by
volunteer fire departments; criminal penalties.
(a) For the purposes of this section:
(1) 'Grantor' means a state spending unit awarding a state grant.
(2) 'Person' includes any corporation, partnership, association, individual or other legal
entity. The term 'person' does not include a state spending unit or a local government as defined in
section one-a, article nine, chapter six of this code.
(3) 'Report' means a compliance attestation engagement, performed and prepared by a
certified public accountant to test whether state grants were spent as intended. The term 'report'
does not mean a full-scope audit or review of the person receiving state funds.
(4)'State grant' means funding provided by a state spending unit to a person upon application
for a specific purpose. The term 'state grant' does not include: (A) payments for goods and services
purchased by a state spending unit; (B) compensation to state employees and public officials; (C)
reimbursements to state employees and public officials for travel or incidental expenses; (D) grants
of student aid; (E) government transfer payments; (F) direct benefits provided under state insurance
and welfare programs; and (G) retirement benefits. The term 'state grant' does include formula
distributions to volunteer and part-volunteer fire departments made pursuant to sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code and section sixteen-a, article twelve
of said chapter.
(b)(1) Any corporation, association, or other organization in West Virginia that is not a local
government as defined in section one-a, article nine, chapter six of this code and which person who
receives state funds or grants one or more state grants in the amount of fifteen twenty-five thousand
dollars or more in the aggregate in a calendar year shall file an audit with the grantor a report of the
disbursement of state grant funds with the Legislative auditor's office.
(2) The audit report required by subdivision (1) of this subsection shall be filed within two
years of the end of the calendar year in which the disbursement of funds or grants state grant funds
by the grantor and was made. The report shall be made by an independent certified public accountant
at the cost of the grantee and show person receiving the state grant. The scope of the report is
limited to showing that the state grant funds or grants were spent for the purposes intended when the
grant was made.
(c)(1) Any person failing to file a required report within the two-year period provided in
subdivision (2), subsection (b) of this section for any state grant funds disbursed after the first day
of July, two thousand three, is barred from subsequently receiving state grants until the person has
filed the report and is otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons failing to file a required report within
the required time period provided in subdivision (2), subsection (b) of this section for any state grant
disbursed after the first day of July, two thousand three, to the Legislative Auditor for purposes of
debarment from receiving state grants.
(d)(1) The state agency administering the funds or grants state grant shall notify the grantee
of the reporting requirements set forth in this section. A grantee failing to file a required audit within
the two-year time period is barred from subsequently receiving state funds or grants until the grantee
has filed the audit and is otherwise in compliance with the provisions of this section.
(2) Any state agency administering a state grant shall, in the manner designated by the
Legislative Auditor, notify the Legislative Auditor of the amount of funds to be disbursed, the
identity of the person authorized to receive the funds and the purpose and nature of the state grant
within thirty days of making the state grant or authorizing the disbursement of the funds: Provided,
That if the state grant was awarded prior to the effective date of the amendment and reenactment of
this section in the year two thousand five, the grantor shall provide the information required by this
section within ninety days of the effective date.
(3) All grantors making state grants that would be subject to the report requirements of this
section shall, prior to awarding a state grant, take reasonable actions to verify that the person is not
barred from receiving state grants pursuant to this section. The verification process shall, at a
minimum, include:
(A) A requirement that the person seeking the state grant provide a sworn statement from an
authorized representative that the person has filed all reports for state grants received as required
under this section; and
(B) Confirmation from the Legislative Auditor by the grantor that the person has not been
identified as one who has failed to file a report under this section. Confirmation may be
accomplished by accessing the computerized database provided in subdivision (4) of this subsection.
(4) The Legislative Auditor shall maintain a list identifying persons who have failed to file
reports required by this section. The list may be in the form of a computerized database that may
be accessed by state agencies over the Internet.
(e) If any report performed pursuant to the requirements of this section provides evidence of
a reportable condition or violation, the grantor shall provide a copy of the report to the Legislative
Auditor within thirty days of receipt by the grantor.
(f) The grantor shall maintain copies of reports required by this section and make the reports
available for public inspection, as well as for use in audits and performance reviews of the grantor.
(b)Audits (g) Reports of state funds or grants under fifteen thousand dollars not required
under the provisions of this section may be authorized by the Joint Committee on Government and
Finance to be conducted by the Legislative auditor's office Auditor at no cost to the grantee.:
Provided, That
(h)(1) Volunteer and part-volunteer fire departments may satisfy the audit report requirements
of this section by submitting a sworn statement of annual expenditures to the Legislative auditor's
office Auditor along with a filing fee of seventy-five dollars, on or before the fourteenth day of
February of each year, if the volunteer fire department elects not to be audited. The sworn statement
of expenditures shall be signed by the chief or director of the volunteer fire department and shall be
made under oath and acknowledged before a notary public. An additional filing fee of twenty-five
dollars shall be included with the sworn statement of annual expenditures if the statement is
submitted between the fifteenth day of February and the fifteenth day of March. An additional filing
fee of fifty dollars shall be included with the sworn statement of annual expenditures if the statement
is submitted between the sixteenth day of March and the fifteenth day of April.
(2) If the sworn statement is not submitted on or before the fifteenth day of April May, unless
the time period is extended by the Legislative Auditor, the volunteer fire department shall file an
audit of the disbursement of funds, made by an independent certified public accountant, with the
Legislative auditor's office no later than the first day of July. The audit shall be made at the cost of
the volunteer fire department. Legislative Auditor may conduct a report of the volunteer or part-
volunteer fire department.
(3) If the audit made by the independent certified public accountant sworn statement of
annual expenditures is not filed with the Legislative Auditor by the first day of July, unless the time
period is extended by the Legislative Auditor, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of one thousand dollars from any amount that would otherwise be
distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article
three, chapter thirty-three of this code and section sixteen-a, article twelve of said chapter and pay
the amount withheld to the fund from which it was distributed to be redistributed the following year
pursuant to the applicable provisions of those sections until the report is complete. Moneys withheld
pursuant to this subdivision are to be deposited in the special revenue account created in the State
Treasury in subdivision (4) of this subsection.
If the volunteer fire department does not timely file a sworn statement of annual expenditures
or an audit of the disbursement of funds, made by an independent certified public accountant, with
the Legislative auditor's office for three consecutive years, the Legislative Auditor shall notify the
State Treasurer who shall withhold payment of any amount that would otherwise be distributed to
the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter
thirty-three of this code and section sixteen-a, article twelve of said chapter and pay the amount
withheld to the fund from which it was distributed to be redistributed the following year pursuant
to the applicable provisions of those sections.
(c)(4) The office of the Legislative Auditor may assign an employee or employees to perform
audits or reviews at the direction of the Legislative Auditor of the disbursement of state grant funds
or grants to volunteer fire departments. The volunteer fire department shall cooperate with the
Legislative Auditor, the Legislative Auditor's employees and the State Auditor in performing their
duties under this section. If the Legislative Auditor determines a volunteer fire department is not
cooperating, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of
any amount that would otherwise be distributed to the fire department under the provisions of
sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter until the Legislative Auditor informs the Treasurer that the
fire department has cooperated as required by this section. The State Treasurer shall pay the amount
withheld into a special revenue account hereby created in the State Treasury and designated the
'Volunteer Fire Department Audit Account'. If, after one year from payment of the amount withheld
into the special revenue account, the Legislative Auditor informs the State Treasurer of continued noncooperation by the fire department, the State Treasurer shall pay the amount withheld to the fund
from which it was distributed to be redistributed the following year pursuant to the applicable
provisions of those sections.
(d) Filing fees paid by volunteer fire departments pursuant to this section shall be paid into
a special revenue account created in the State Treasury known as the Special Legislative Audit Fund.
Expenditures from the fund are authorized to be made by the Legislative auditor's office solely for
the purposes of payment of costs associated with the audits conducted pursuant to this section. Any
person who files a fraudulent sworn statement of expenditures under this section is guilty of a felony
and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five
thousand dollars or imprisoned in a state correctional facility for not less than one year nor more than
five years, or both fined and imprisoned.
(e) (5) Whenever the State Auditor performs an audit of a volunteer fire department for any
purpose the Auditor shall also conduct an audit of other state funds received by the fire department
pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and
section sixteen-a, article twelve of said chapter. The Auditor shall send a copy of any such the audit
to the Legislative Auditor. The Legislative Auditor may accept an audit performed by the Auditor
in lieu of performing an audit report under this section.
(f) (i) Any audit report submitted pursuant to the provisions of this section may be filed
electronically in accordance with the provisions of article one, chapter thirty-nine-a of this code.
(j) Any person who files a fraudulent sworn statement of expenditures under subsection (g),
a fraudulent sworn statement under subsection (d), or a fraudulent report under this section is guilty
of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more
than five thousand dollars or imprisoned in a state correctional facility for not less than one year nor
more than five years, or both fined and imprisoned."
On motion of Delegate Staton, the House concurred in the Senate amendments to the House
amendments.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 719),
and there were--yeas 81, nays 18, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Armstead, Ashley, Blair, Border, Brown, Carmichael, Duke, Frich, Hall, Hamilton,
Leggett, Louisos, Roberts, Romine, Sobonya, Stevens, Tabb and Trump.
Absent And Not Voting: Azinger.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 348) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 720), and there were--yeas 96, nays
4, absent and not voting none, with the nays being as follows:
Nays: Border, Duke, Frich and Hamilton.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 348) takes effect July 1, 2005.
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. 3104, Relating to the payment of telecommunications charges.
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, after the enacting section by inserting the following:
"ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION."
On page two, section four-a, line ten, by striking out the words "hereby created" and inserting
in lieu thereof the word "continued".
And,
On page ten, section four-a, line one hundred fifty-five, by striking out the words "shared
account" and inserting in lieu thereof the words "statewide contract".
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. 721), and there were--yeas
99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Manchin.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3104) 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 concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
S. B. 428, Relating to Rehabilitation Environmental Action Plan.
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 thirty-two, section three, subsection (c), by striking out all of subdivision (4) and
renumbering the remaining subdivisions.
And,
On page fifty-two, section twelve, subsection (a), subdivision (1), by striking out the word
"Division" and inserting in lieu thereof the word "Department".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments
to the House amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 722),
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: Longstreth.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 428) 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 of the report of the Committee of
Conference on, and the passage, as amended by said report, to take effect from passage, and
requested the concurrence of the House of Delegates in the passage, of
S. B. 604, Establishing method for projecting increase in net enrollment for each school
district.
Conference Committee Report
Delegate Campbell, from the Committee of Conference on matters of disagreement between
the two houses, as to
S. B. 604, Establishing method for projecting increase in net enrollment for each school
district.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to House of Delegates amendments to Engrossed Senate Bill No. 604
having met, after full and free conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That the House of Delegates agree to the amendments of the Senate to the House of
Delegates amendments to Engrossed Senate Bill No. 604.
Respectfully submitted,
Robert H. Plymale,Thomas W. Campbell,
John Unger, II,Larry A. Williams,
Karen L. Facemyer,Walter E. Duke,
Conferees on the part
Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Campbell, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 723), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 604) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 724), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 604) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of
Conference on, and the passage, as amended by said report, and requested the concurrence of the
House of Delegates in the passage, of
Com. Sub. for S. B. 583, Relating to appealing orders from family court to circuit court.
Conference Committee Report
Delegate Webster, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com. Sub. for S. B. 583, Relating to appealing orders from family court to circuit court,
Submitted the following report, which was received:
Your Committee on Conference on the disagreeing votes of
the two houses on the amendment of the House of Delegates as to Com. Sub. For S. B. 583, having
met, after full and free conference, have agreed to recommend and do recommend to their respective
houses, as follows:
That both houses recede from their respective positions as to the amendment of the House,
striking out everything after the enacting clause and inserting new language, and agree to the same
as follows:
On page one, after the enacting clause, by striking out the remainder of the bill and inserting
in lieu thereof the following:
That §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as
follows:
ARTICLE 2A. FAMILY COURTS.
(a) The Circuit Court may refuse to consider the petition for appeal may affirm or reverse the
order, may affirm or reverse the order in part or may remand the case with instructions for further
hearing before the Family Court Judge.
(b) In considering a petition for appeal, the Circuit Court may only consider the record as
provided in subsection (d), section eight of this article.
(c) The Circuit Court shall review the findings of fact made by the Family Court Judge under
the clearly erroneous standard and shall review the application of law to the facts under an abuse of
discretion standard.
(d) If the Circuit Court agrees to consider a petition for appeal, the court shall provide the
parties an opportunity to appear for oral argument, upon the request of either party or in the
discretion of the court. The provisions of this subsection are effective until the adoption of rules by
the Supreme Court of Appeals governing the appellate procedures of Family Courts.
(e) If the proceeding is remanded to the Family Court, the Circuit Court must enter
appropriate temporary orders for a parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child, child support, spousal support or such other temporary
relief as the circumstances of the parties may require. If the Circuit Court remands the case to the Family Court, it must state the legal or factual issues to be considered by the Family Court on
remand. If the Family Court determines that the consideration of those issues also requires
consideration of collateral or interdependent issues, the Family Court may also consider those other
collateral or interdependent issues.
(f) The Circuit Court must enter an order ruling on a petition for appeal within sixty days
from the last day a reply to the petition for appeal could have been filed. If the Circuit Court does
not enter the order within the sixty-day period or does not, within the sixty-day period, enter an order
stating just cause why the order has not been timely entered, the circuit clerk shall send a written
notice to the parties that unless the parties both file an objection within fourteen days of the date of
the notice, the appeal will be transferred to the Supreme Court of Appeals as provided in section
fifteen of this article due to the failure of the Circuit Court to timely enter an order. The appeal shall
be transferred without the necessity of the filing of any petition or further document by the petitioner.
§51-2A-16. Expiration of appellate procedures; exceptions; report requirements.
(a) The provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article shall
expire and be of no force and effect after the thirtieth day of June, two thousand ten, except as
otherwise provided by subsection (b) of this section.
(b) Appeals that are pending before a Circuit Court or the Supreme Court of Appeals on the
thirtieth day of June, two thousand ten, but not decided before the first day of July, two thousand ten,
shall proceed to resolution in accordance with the provisions of sections eleven, twelve, thirteen,
fourteen and fifteen of this article, notwithstanding the provisions of subsection (a) of this section
that provide for the expiration of those sections. The Supreme Court of Appeals shall, by rule,
provide procedures for those appeals that are remanded but not concluded prior to the first day of
July, two thousand ten, in the event that the appeals process set forth in sections eleven, twelve,
thirteen, fourteen and fifteen of this article is substantially altered as of the first day of July, two
thousand ten.
(c) Prior to the two thousand eight regular session of the Legislature and annually thereafter,
the Supreme Court of Appeals shall report to the Joint Committee on Government and Finance the
number of appeals from final orders of the Family Court filed in the various Circuit Courts and in the Supreme Court of Appeals, the number of pro se appeals filed, the subject matter of the appeals,
the time periods in which appeals are concluded, the number of cases remanded upon appeal and
such other detailed information so as to enable the Legislature to study the appellate procedures for
Family Court matters and to consider the possible necessity and feasibility of creating an
intermediate appellate court or other system of appellate procedure.
Respectfully submitted,
Tracy Dempsey, Carrie Webster,
C. Randy White, Lidella Wilson Hrutkay,
Donald T. Caruth, Greg Howard ,
Conferees on the part
Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Webster, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 725), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 583) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House then proceeded to further consideration of S. B. 237, Allowing municipalities to
increase hotel occupancy tax; having been reported in earlier proceedings and postponed until this
time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, section two, line seven, following the words "hotel room",
by striking out the period and inserting a colon and the words "Provided, however, That
notwithstanding any other provision of this article to the contrary, a municipality may not impose
any tax authorized by this article on a hotel located within its corporate limits upon which a county
was imposing a tax authorized by this article on or after the first day of January, two thousand five, and continuously thereafter to and including the effective date of annexation of the territory in which
the hotel is located pursuant to article six, chapter eight of this code, and as to that hotel, the county
is authorized to continue to impose and collect the tax authorized by this article at the rate of three
percent of the consideration paid for the use or occupancy of a hotel room: Provided further, That
in the event the county commission duly enters an order of record that ceases to impose the tax
authorized by this article on that hotel, then, as to that hotel, the municipality in which the hotel is
located by reason of the annexation may impose the tax authorized by this article" followed by a
period.
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 726),
and there were--yeas 84, nays 16, absent and not voting none, with the nays being as follows:
Nays: Armstead, Ashley, Craig, Frederick, Frich, Hamilton, Lane, Leggett, Louisos,
Overington, Porter, Romine, Rowan, Schoen, Sumner and Trump.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 237) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 727), and there were--yeas 96, nays
3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos, Overington and Sumner.
Absent And Not Voting: Trump.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 237) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
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:
H. B. 3258, Permitting the sale of nonintoxicating beer within a certain distance from a
church that consents to the sale.
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 16. NONINTOXICATING BEER.
§11-16-8. Form of application for license; fee and bond; refusal of license.
(a) A license may be issued by the Commissioner to any person who submits an application
therefor, accompanied by a license fee, and, where required, a bond, stating under oath:
(1) The name and residence of the applicant, the duration of such residency, that the applicant
has been a resident of the state for a period of two years next preceding the date of the application
and that the applicant is twenty-one years of age. If the applicant is a firm, association, partnership,
limited partnership or corporation, the application shall include the residence of the members or
officers for a period of two years next preceding the date of such application: Provided, That if any
person, firm, partnership, limited partnership, association or corporation applies for a license as a
distributor, such person, or in the case of a firm, partnership, limited partnership or association, the
members or officers thereof shall state under oath that each has been a bona fide resident of the state
for four years preceding the date of such application;
(2) The place of birth of applicant, that he or she is a citizen of the United States and of good
moral character and, if a naturalized citizen, when and where naturalized; and, if a corporation
organized or authorized to do business under the laws of the state, when and where incorporated,
with the name and address of each officer; that each officer is a citizen of the United States and a
person of good moral character; and if a firm, association, partnership or limited partnership, the
place of birth of each member of the firm, association, partnership or limited partnership, and that
each member is a citizen of the United States and if a naturalized citizen, when and where
naturalized, each of whom must qualify and sign the application: Provided, That the requirements
as to residence shall not apply to the officers of a corporation which shall apply for a retailer's license, but the officers, agent, or employee who shall manage and be in charge of the licensed
premises shall possess all of the qualifications required of an individual applicant for a retailer's
license, including the requirement as to residence;
(3) The particular place for which the license is desired and a detailed description thereof;
(4) The name of the owner of the building and, if the owner is not the applicant, that such
applicant is the actual and bona fide lessee of the premises;
(5) That the place or building in which is proposed to do business conforms to all laws of
health, fire and zoning regulations applicable thereto, and is a safe and proper place or building, and
is not within three hundred feet of any school or church, measured from front door to front door,
along the street or streets: Provided, That this requirement shall not apply to a Class B license, or
to any place now occupied by a beer licensee, so long as it is continuously so occupied: Provided,
however, That the prohibition against locating any such proposed business in a place or building
within three hundred feet of any school shall not apply to any college or university that has notified
the Commissioner, in writing, that it has no objection to the location of any such proposed business
in a place or building within three hundred feet of such college or university: Provided further, That
the prohibition against locating any such proposed business in a place or building within three
hundred feet of any church shall not apply to any church whenever the governing body of such
church has notified the Commissioner, in writing, that it has no objection to the location of any such
proposed business in a place or building within three hundred feet of the church: And provided
further, That any such business shall have been in business for at least one year prior to making
application: And provided further, That any such business shall be precluded during its period of
licensure from operating video lottery: And provided further, That such business must provide
information about the outside appearance and floor plan to the church prior to gaining the church's
approval: And provided further, That a church shall have the opportunity to rescind such approval
three years after the issuance of the license and every third year thereafter: And provided further,
That such business was in existence on the first day of July, two thousand five.
(6) That the applicant is not incarcerated and has not during the five years immediately
preceding the date of said application been convicted of a felony;
(7) That the applicant is the only person in any manner pecuniarily interested in the business
so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein
during the continuance of the license; and
(8) That the applicant has not during five years next immediately preceding the date of said
application had a nonintoxicating beer license revoked.
(b) The provisions and requirements of subsection (a) of this section are mandatory
prerequisites for the issuance, and in the event any applicant fails to qualify under the same, license
shall be refused. In addition to the information furnished in any application, the Commissioner may
make such additional and independent investigation of each applicant, and of the place to be
occupied, as deemed necessary or advisable; and for this reason each and all applications, with
license fee and bond, must be filed thirty days prior to the beginning of any fiscal year, and if
application is for an unexpired portion of any fiscal year, issuance of license may be withheld for
such reasonable time as necessary for investigation.
(c) The Commissioner may refuse a license to any applicant under the provisions of this
article if the Commissioner shall be of the opinion:
(1) That the applicant is not a suitable person to be licensed;
(2) That the place to be occupied by the applicant is not a suitable place; or is within three
hundred feet of any school or church, measured from front door to front door along the street or
streets: Provided, That this requirement shall not apply to a Class B licensee, or to any place now
occupied by a beer licensee, so long as it is continuously so occupied: Provided, however, That the
prohibition against locating any such place to be occupied by an applicant within three hundred feet
of any school shall not apply to any college or university that has notified the Commissioner, in
writing, that it has no objection to the location of any such place within three hundred feet of such
college or university: Provided further, That the prohibition against locating any such proposed
business in a place or building within three hundred feet of any church shall not apply to any church
whenever the governing body of such church has notified the Commissioner, in writing, that it has
no objection to the location of any such proposed business in a place or building within three
hundred feet of the church: And provided further, That any such business shall have been in business for at least one year prior to making application: And provided further, That any such business shall
be precluded during its period of licensure from operating video lottery: And provided further, That
such business must provide information about the outside appearance and floor plan to the church
prior to gaining the church's approval: And provided further, That a church shall have the
opportunity to rescind such approval three years after the issuance of the license and every third year
thereafter: And provided further, That such business was in existence on the first day of July, two
thousand five; or
(3) That the license should not be issued for reason of conduct declared to be unlawful by this
article."
And,
By amending the title of the bill to read as follows:
H. B. 3258 -"A Bill to amend and reenact §11-16-8 of the Code of West Virginia, 1931, as
amended, relating to permitting the sale of nonintoxicating beer within a certain distance from a
church that consents to the sale; clarifying the determination of distance for purpose of issuing
license; granting commissioner discretion to refuse to issue license to business that operate video
lottery; and specific requirements."
Delegate Staton moved to concur in the Senate amendments with amendment, as follows:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 16. NONINTOXICATING BEER.
§11-16-8. Form of application for license; fee and bond; refusal of license.
(a) A license may be issued by the Commissioner to any person who submits an application
therefor, accompanied by a license fee, and, where required, a bond, stating under oath:
(1) The name and residence of the applicant, the duration of such residency, that the applicant
has been a resident of the state for a period of two years next preceding the date of the application
and that the applicant is twenty-one years of age. If the applicant is a firm, association, partnership,
limited partnership or corporation, the application shall include the residence of the members or
officers for a period of two years next preceding the date of such application: Provided, That if any person, firm, partnership, limited partnership, association or corporation applies for a license as a
distributor, such person, or in the case of a firm, partnership, limited partnership or association, the
members or officers thereof shall state under oath that each has been a bona fide resident of the state
for four years preceding the date of such application;
(2) The place of birth of applicant, that he or she is a citizen of the United States and of good
moral character and, if a naturalized citizen, when and where naturalized; and, if a corporation
organized or authorized to do business under the laws of the state, when and where incorporated,
with the name and address of each officer; that each officer is a citizen of the United States and a
person of good moral character; and if a firm, association, partnership or limited partnership, the
place of birth of each member of the firm, association, partnership or limited partnership, and that
each member is a citizen of the United States and if a naturalized citizen, when and where
naturalized, each of whom must qualify and sign the application: Provided, That the requirements
as to residence shall not apply to the officers of a corporation which shall apply for a retailer's
license, but the officers, agent, or employee who shall manage and be in charge of the licensed
premises shall possess all of the qualifications required of an individual applicant for a retailer's
license, including the requirement as to residence;
(3) The particular place for which the license is desired and a detailed description thereof;
(4) The name of the owner of the building and, if the owner is not the applicant, that such
applicant is the actual and bona fide lessee of the premises;
(5) That the place or building in which is proposed to do business conforms to all laws of
health, fire and zoning regulations applicable thereto, and is a safe and proper place or building, and
is not within three hundred feet of any school or church, measured from front door to front door,
along the street or streets: Provided, That this requirement shall not apply to a Class B license, or
to any place now occupied by a beer licensee, so long as it is continuously so occupied: Provided,
however, That the prohibition against locating any such proposed business in a place or building
within three hundred feet of any school shall not apply to any college or university that has notified
the Commissioner, in writing, that it has no objection to the location of any such proposed business
in a place or building within three hundred feet of such college or university: Provided further, That the prohibition against locating any such proposed business in a place or building within three
hundred feet of any church shall not apply to any church whenever the governing body of such
church has notified the Commissioner, in writing, that it has no objection to the location of any such
proposed business in a place or building within three hundred feet of the church: And provided
further, That any such business shall have been in business for at least one year prior to making
application: And provided further, That any such business shall be precluded during its period of
licensure from operating video lottery: And provided further, That such business must provide
information about the outside appearance and floor plan to the church prior to gaining the church's
approval: And provided further, That a church shall have the opportunity to rescind such approval
three years after the issuance of the license and every third year thereafter: And provided further,
That such business was in existence on the first day of July, two thousand five.
(6) That the applicant is not incarcerated and has not during the five years immediately
preceding the date of said application been convicted of a felony;
(7) That the applicant is the only person in any manner pecuniarily interested in the business
so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein
during the continuance of the license; and
(8) That the applicant has not during five years next immediately preceding the date of said
application had a nonintoxicating beer license revoked.
(b) The provisions and requirements of subsection (a) of this section are mandatory
prerequisites for the issuance, and in the event any applicant fails to qualify under the same, license
shall be refused. In addition to the information furnished in any application, the Commissioner may
make such additional and independent investigation of each applicant, and of the place to be
occupied, as deemed necessary or advisable; and for this reason each and all applications, with
license fee and bond, must be filed thirty days prior to the beginning of any fiscal year, and if
application is for an unexpired portion of any fiscal year, issuance of license may be withheld for
such reasonable time as necessary for investigation.
(c) The Commissioner may refuse a license to any applicant under the provisions of this
article if the Commissioner shall be of the opinion:
(1) That the applicant is not a suitable person to be licensed;
(2) That the place to be occupied by the applicant is not a suitable place; or is within three
hundred feet of any school or church, measured from front door to front door along the street or
streets: Provided, That this requirement shall not apply to a Class B licensee, or to any place now
occupied by a beer licensee, so long as it is continuously so occupied: Provided, however, That the
prohibition against locating any such place to be occupied by an applicant within three hundred feet
of any school shall not apply to any college or university that has notified the Commissioner, in
writing, that it has no objection to the location of any such place within three hundred feet of such
college or university: Provided further, That the prohibition against locating any such proposed
business in a place or building within three hundred feet of any church shall not apply to any church
whenever the governing body of such church has notified the Commissioner, in writing, that it has
no objection to the location of any such proposed business in a place or building within three
hundred feet of the church: And provided further, That any such business shall have been in business
for at least one year prior to making application: And provided further, That any such business shall
be precluded during its period of licensure from operating video lottery: And provided further, That
such business must provide information about the outside appearance and floor plan to the church
prior to gaining the church's approval: And provided further, That a church shall have the
opportunity to rescind such approval three years after the issuance of the license and every third year
thereafter: And provided further, That such business was in existence on the first day of July, two
thousand five; or
(3) That the license should not be issued for reason of conduct declared to be unlawful by this
article."
On the adoption of the House amendment to the Senate amendment, Delegate Overington
demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 728), and there were--yeas
55, nays 44, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Azinger, Blair, Border, Browning, Butcher, Carmichael, Duke,
Eldridge, Ellem, Evans, Ferrell, Fragale, Frich, Hall, Hamilton, Howard, Iaquinta, Lane, Leggett, Louisos, Martin, Miley, Overington, Poling, Porter, Roberts, Romine, Rowan, Schadler, Schoen,
Sobonya, Stephens, Stevens, Sumner, Susman, Swartzmiller, Tansill, Thompson, Rick, Trump,
Tucker, Wakim and Walters.
Absent And Not Voting: Boggs.
So, a majority of the members present and voting having voted in the affirmative, the House
amendment to the Senate amendment was adopted.
Delegate Ferrell requested to be excused from voting on the passage of H. B. 3258 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.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 729), and there were--yeas
52, nays 47, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Argento, Armstead, Ashley, Blair, Butcher, Cann, Carmichael, Crosier,
Duke, Ellem, Ennis, Evans, Ferrell, Fragale, Frich, Hall, Hamilton, Howard, Iaquinta, Lane, Leggett,
Louisos, Martin, Miley, Overington, Perdue, Perry, Poling, Roberts, Romine, Rowan, Schadler,
Schoen, Sobonya, Stephens, Stevens, Sumner, Susman, Tabb, Tansill, Rick Thompson, Ron
Thompson, Trump, Tucker, Wakim and Walters.
Absent And Not Voting: Boggs.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3258) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Special Calendar
Third Reading
S. B. 289, Allowing fill material in waters of state; definition; on third reading, coming up
in regular order, with an amendment pending, was reported by the Clerk.
An amendment recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, section three, line forty-one, by striking out subsection
ten in its entirety, and inserting in lieu thereof the following:
"(10) "Fill material" means, and is limited to, soil, coal partings, mine overburden, mine
interburden and other natural rock formations adjacent or related to coal seams."
And,
On page seven, section three, line one hundred eight, following the first word "the", by
striking out the word "director" and inserting in lieu thereof the word "Secretary".
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 730),
and there were--yeas 79, nays 21, absent and not voting none, with the nays being as follows:
Nays: Brown, DeLong, Duke, Hatfield, Hrutkay, Longstreth, Louisos, Mahan, Manchin,
Martin, Miley, Moore, Palumbo, Perdue, Rowan, Susman, Tabb, Talbott, Thompson, Rick, Webster
and Wells.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 289) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
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. 587, Relating to appointment of counsel in abuse and neglect cases.
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, section two, subsection (a), after the words "parents or, if the parents are
separated or divorced, the" by striking out the words "parent or other person" and inserting in lieu
thereof the words "parents or parent or other person or persons".
On motion of Delegate Staton, the House concurred in the Senate amendment to the House
amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 731),
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: Hrutkay.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 587) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At 11:30 p.m., on motion of Delegate Staton, the House of Delegates recessed until 11:40
p.m., and reconvened at that time.
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. 513, Relating to tax credits available under Capital Company Act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment was reported by
the Clerk:
On page four, section eight, subsection (b), after the word "year" by changing the period to
a colon and inserting the following proviso: "And provided further, That solely for the fiscal year
beginning on the first day of July, two thousand four, the authority may allocate the tax credits allowed for economic development and technology advancement centers at any time during the fiscal
year."
And,
By amending the title of the bill to read as follows:
S. B. 513 - " A Bill to amend and reenact §5E-1-8 of the Code of West Virginia, 1931, as
amended, relating to the Capital Company Act; eliminating the total tax credits available under the
Capital Company Act during the fiscal year beginning on the first day of July, two thousand five; and
modifying the time period in which the authority may allocate tax credits available under the Capital
Company Act during the fiscal year beginning on the first day of July, two thousand four."
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 732),
and there were--yeas 85, nays 11, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Armstead, Ashley, Blair, Duke, Ellem, Frich, Hall, Louisos, Schoen, Trump and
Walters.
Absent And Not Voting: Doyle, Hrutkay, Poling and Wakim.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 513) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 733), 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: Doyle, Hrutkay and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 513) takes effect July 1, 2005.
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 concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 30, Relating to insurance law reforms and modifications generally,
Com. Sub. for S. B. 94, Providing additional flexibility for school instructional support and
enhancement days,
Com. Sub. for S. B. 147, Limiting purchase of substances used in production of
methamphetamine,
Com. Sub. for S. B. 194, Relating to Affordable Housing Trust Fund,
Com. Sub. for S. B. 198, Relating to fire safety standards for bed and breakfast
establishments,
S. B. 236, Requiring health care facilities train staff, employees and contractors on
Alzheimer's disease and related dementia,
S. B. 254, Relating to reinsurance intermediaries,
Com. Sub. for S. B. 268, Relating to underage possession of beer and liquor; penalty,
Com. Sub. for S. B. 427, Relating to health maintenance organizations,
Com. Sub. for 435, Creating method municipal courts can recover certain uncollectible
fines,
Com. Sub. for S. B. 561, Authorizing Greater Huntington Park and Recreation District
impose fees and issue revenue bonds,
Com. Sub. for S. B. 575, Authorizing crossbow hunting for disabled persons,
S. B. 584, Allowing Bureau for Child Support Enforcement enter orders for modification of
child support amounts,
Com. Sub. for S. B. 588, Relating to cruelty to animals and intervention program for certain
youths,
S. B. 643, Relating to taxable income of resident estate or trust,
Com. Sub. for S. B. 666, Relating to exemptions for certain insurance companies from
business franchise tax and corporation net income tax,
S. B. 669, Transferring certain election duties from circuit clerk to clerk of county
commission,
Com. Sub. for S. B. 674, Relating to textbook sales at public institutions of higher education,
S. B. 684, Relating to imposition of tax on privilege of severing natural gas or oil,
S. B. 691, Relating to termination of tenancy of factory-built home,
Com. Sub. for S. B. 700, Creating Community Infrastructure Investment Program within
Department of Environmental Protection,
S. B. 728, Relating to disposition of state surplus property,
S. B. 735, Relating to cancellation of motor vehicle agreement,
S. B. 741, Exempting farming equipment and livestock from personal property tax,
And,
S. B. 746, Reducing rate of tax paid on privilege of severing timber after certain date.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, to take effect from passage, as amended, of
Com. Sub. for S. B. 191, Relating to implementation of modified mental hygiene
procedures,
Com. Sub. for S. B. 382, Authorizing Department of Administration promulgate legislative
rules,
Com. Sub. for S. B. 455, Relating to financing of environmental control activities by certain
electrical utilities,
Com. Sub. for S. B. 522, Extending time for Hurricane council to meet as levying body,
Com. Sub. for S. B. 670, Relating to electing supervisors for conservation districts,
And,
S. B. 705, Delaying effective date of Municipal Sales and Service Tax and Municipal Use
Tax.
The Clerk of the Senate, announced concurrence in the title amendment of the House of
Delegates and the passage, to take effect from passage, as amended, of
Com. Sub. for S. B. 661, Relating to juvenile proceedings and multidisciplinary teams.
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, to take effect July 1, 2005, as amended, of
S. B. 237, Allowing municipalities to increase hotel occupancy tax,
S. B. 282, Continuing School Building Authority,
S. B. 283, Continuing Health Care Authority,
S. B. 285, Continuing Division of Culture and History,
S. B. 286, Continuing Public Defender Services,
Com. Sub. for S. B. 433, Increasing membership of Environmental Protection Advisory
Council,
S. B. 452, Continuing Board of Risk and Insurance Management,
Com. Sub. for S. B. 514, Increasing salaries of certain state officials, justices, circuit judges
and family court judges,
S. B. 524, Requiring study of state's centralized accounting system,
Com. Sub. for S. B. 603, Relating to higher education,
Com. Sub. For S. B. 716, Creating Regional Jail Operators Partial Reimbursement Fund,
And,
Com. Sub. for S. B. 729, Authorizing magistrate courts order home incarceration.
Miscellaneous Business
Delegate Doyle announced to the Clerk that he was absent when the vote was taken on Roll
Nos. 579 through 733, and had he been present he would have voted "yea" thereon.
Delegates Brown and Webster announced that they were absent when the vote was taken on
Roll No. 694, and had they been present they would have voted "Nay" thereon.
At 12 o'clock Midnight, the House of Delegates adjourned until 12:01 a.m., Sunday, April
10, 2005.