WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2007
SIXTIETH DAY
____________
Charleston, W. Va., Saturday, March 10, 2007
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Lee McDermott, First
Presbyterian Church, Logan, West Virginia. Randall Reid-Smith,
Commissioner of the Division of Culture and History, proceeded in
the singing of "Danny Boy".
Pending the reading of the Journal of Friday, March 9, 2007,
On motion of Senator Chafin, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
Senator Tomblin (Mr. President) presented a communication from
the Geological and Economic Survey, submitting its annual report,
in accordance with chapter twenty-nine, article two, section six of
the code of West Virginia.
Which report was received and filed with the Clerk.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Susan Patrick to address the Senate on behalf of
the Walter Rollins Scholars, Robbie Queen on behalf of the Judith A. Herndon Fellowship Program and Amanda Campbell on behalf of the
Legislative Information Journalism Internship Program.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Love, the special order of business set
for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business at
8 p.m. tonight.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 21, Restricting licensee's
work until adverse judgment satisfied.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 55, Updating mortality
tables and interest rate used in life estate valuation.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 59, Relating to basic universal design
features for certain dwellings.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 69, Authorizing electronically transmitted prescription orders.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page fourteen, section one-b, after line two hundred forty-
one, by inserting a new subdivision, designated subdivision (31),
to read as follows:
(31) "Practice of pharmacy" means the interpretation,
evaluation and implementation of medical orders; the dispensing of
prescription drug orders; participation in drug and device
selection; drug administration; drug regimen review; the practice
of telepharmacy within and across state lines; drug or drug-related
research; the provision of patient counseling; the provision of
those acts or services necessary to provide pharmacist care in all
areas of patient care, including primary care and collaborative
pharmacy practice; the responsibility for compounding and labeling
of drugs and devices (except labeling by a manufacturer, repackager
or distributor of nonprescription drugs and commercially packaged
legend drugs and devices); proper and safe storage of drugs and
devices; and maintenance of required records.;
And by renumbering the remaining subdivisions;
On page thirty, section twelve-c, after line thirty-six, by
inserting the following:
§30-5-29. Collaborative pharmacy practice continuation.
Pursuant to the provisions of article ten, chapter four of this code, pharmacy collaborative agreements in community settings
shall continue to exist until the first day of July, two thousand
eight ten, unless sooner terminated, continued or reestablished
pursuant to that article.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §30-5-1b, §30-5-12, §30-5-12b and §30-5-16b 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
§30-5-12c; that §30-5-29 of said code be amended and reenacted;
that §30-7-15c of said code be amended and reenacted; and that
§60A-3-308 of said code be amended and reenacted, all to read as
follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 69--A Bill to amend and
reenact §30-5-1b, §30-5-12, §30-5-12b and §30-5-16b of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §30-5-12c; to amend and reenact
§30-5-29 of said code; to amend and reenact §30-7-15c of said code;
and to amend and reenact §60A-3-308 of said code, all relating
generally to the authorization of electronic prescribing; adding
definitions; and extending the date for pharmacy collaborative
agreements.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 69, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 69) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2007, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 76, Setting particular
penalties for underage drinking.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13c. Graduated sanctions for juvenile alcohol consumption.
(a) Notwithstanding any provision of this article to the
contrary, in addition to any other penalty available to the court,
any child who is adjudicated to have consumed alcoholic liquor or
nonintoxicating beer, as defined in section five, article one,
chapter sixty of this code, shall:
(1) Upon a first adjudication, he or she shall be ordered to
perform community service for not more than eight hours or fined
not more than twenty-five dollars, or both.
(2) Upon a second adjudication, he or she shall be ordered to
perform community service for not more than sixteen hours or fined
not more than fifty dollars, or both.
(3) Upon a third or subsequent adjudication, he or she shall
be ordered to perform not more than twenty-four hours of community
service or fined not more than one hundred dollars, or both.
(b) In addition to the penalties set forth in subsection (a)
of this section and notwithstanding the provisions of subdivision
(4), subsection (c), section thirteen-b of this article, any child
adjudicated a second time for consumption of alcoholic liquor or
nonintoxicating beer shall have his or her license to operate a
motor vehicle suspended for a definite term of not less than five nor more than ninety days. Any child adjudicated a third or
subsequent time for consumption of an alcoholic liquor or
nonintoxicating beer shall have his or her license to operate a
motor vehicle suspended until he or she attains the age of eighteen
years.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 76--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §49-5-13c, relating to penalties for minors
adjudicated delinquent for alcohol, alcoholic liquor or
nonintoxicating beer consumption.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 76, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 76) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 76) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 82, Creating Eyewitness
Identification Reform Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
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 §62-1E-1, §62-1E-2 and
§62-1E-3, all to read as follows:
ARTICLE 1E. EYEWITNESS IDENTIFICATION ACT.
§62-1E-1. Definitions.
For the purposes of this article:
(1) "Eyewitness" means a person whose identification of
another person may be relevant in a criminal proceeding.
(2) "Lineup" means a live or photographic array of persons of
similar appearance.
(3) "Lineup administrator" means the person who conducts a
lineup.
(4) "Live lineup" means a procedure in which a group of people
is displayed to an eye witness for the purpose of determining if
the eyewitness is able to identify the perpetrator of a crime.
(5) "Photo lineup" means a procedure in which an array of
photographs is displayed to an eyewitness for the purpose of
determining if the eyewitness is able to identify the perpetrator
of a crime.
§62-1E-2. Eyewitness identification procedures.
(a) Before a lineup, the eyewitness should be given the
following three instructions:
(1) That the perpetrator might or might not be present in the
lineup;
(2) That the eyewitness is not required to make an
identification; and
(3) That it is as important to exclude innocent persons as it
is to identify the perpetrator.
(b) Law-enforcement officers should make a written record of
a lineup, including the following information:
(1) The date, time and location of the lineup.
(2) The names of every person in the lineup, if known, and all
other persons present at the lineup.
(3) The words used by the eyewitness in any identification,
including words that describe the eyewitness' certainty or
uncertainty in the identification at the time the identification is
made.
(4) Whether it was a photo lineup or live lineup.
(5) The number of photos or individuals that were presented in
the lineup.
(6) Whether the lineup administrator knew which person in the
lineup was the suspect.
(7) Whether, before the lineup, the eyewitness was instructed
that the perpetrator might or might not be presented in the lineup.
(8) Whether the lineup was simultaneous or sequential.
(9) The signature, or initials, of the eyewitness, or notation
if the eyewitness declines or is unable to sign.
(10) A video of the lineup and the eyewitness' response may be included.
(c) There is hereby created a task force to study and identify
best practices for eyewitness identification. The task force
consists of the following members:
(1) The Director of Criminal Justice Services, or his or her
designee, who shall chair, without voting, the task force;
(2) The Superintendent of the State Police, or his or her
designee;
(3) A victim advocate to be designated by the Director of
Criminal Justice Services;
(4) The Director of Public Defender Services, or his or her
designee;
(5) The Executive Director of the West Virginia Prosecuting
Attorneys Institute, or his or her designee;
(6) A circuit judge designated by the Chief Justice of the
West Virginia Supreme Court of Appeals;
(7) Two professionals in the field of forensic sciences, one
to be designated by the Executive Director of West Virginia
Prosecuting Attorneys Institute and the other to be designated by
the Director of Public Defender Services;
(8) The President of the West Virginia Fraternal Order of
Police, or his or her designee;
(9) A representative of the Innocence Project of the West
Virginia University College of Law;
(10) Two licensed practitioners of criminal law, one to be
designated by the Executive Director of West Virginia Prosecuting Attorneys Institute and the other to be designated by the Director
of Public Defender Services;
(11) The President of the West Virginia Sheriffs' Association,
or his or her designee.
(d) The task force, or their assigned designees, shall serve
without compensation, and in consultation with eyewitness
identification practitioners and experts, shall develop recommended
guidelines for policies, procedures and training with respect to
the collection and handling of eyewitness evidence in criminal
investigations by law-enforcement agencies that are consistent with
the reliable evidence supporting best practices. The purpose of
the guidelines is to provide law-enforcement agencies with
information regarding eyewitness identification policies and
procedures to increase the accuracy of the crime investigation
process.
(e) Such guidelines shall include procedures for the
administration of live and photographic lineups and instructions
that will increase the accuracy of eyewitness identifications. The
task force, in developing these guidelines, shall consider:
(1) The use of blind administration of live and photo lineups;
(2) The issuance of specific instructions to the eyewitness
before and during the identification procedure;
(3) The number and selection of fillers to be used in live and
photo lineups;
(4) Sequential versus simultaneous presentation of lineup
members;
(5) Whether only one suspect should be included in any live or
photo lineup;
(6) The timing of when the administrator should request and record
the eyewitness's statement of his confidence in his selection;
(7) Whether to refrain from providing of any confirmatory
information to the eyewitness;
(8) The visual recording of the lineup and its administration;
(9) The video or audio recording of the lineup procedure;
(10) Any other policies or procedures the task forces
determines to be relevant; and
(11) What training, if any, should be made available to law-
enforcement personnel in the use of these procedures.
(f) Not later than fifteenth day of December, two thousand
eight, the task force shall submit a report on the guidelines
developed and recommendations concerning their use to the standing
committees of the Legislature having cognizance of matters relating
to criminal law and procedure. Minority reports may also be
issued. The task force shall terminate on the fifteenth day of
December, two thousand nine, unless earlier terminated by
legislative action.
§62-1E-3. Training of law-enforcement officers.
The Superintendent of State Police may create educational
materials and conduct training programs to instruct law-enforcement
officers and recruits how to conduct lineups in compliance with
this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 82--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §62-1E-1, §62-1E-2 and §62-1E-3, all relating
to creating the Eyewitness Identification Act; and establishing
definitions, eyewitness identification procedures, a study task
force and related training.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 82, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Sprouse--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 82) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Sprouse--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 82) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2007, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 100,
Requiring local school boards reimburse mileage to school service
personnel using own vehicle.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-14. Mileage reimbursement for school personnel.
A county board shall reimburse any school personnel for each
mile traveled when the employee is required to use a personal motor
vehicle in the course of employment. The county board shall
reimburse at the same rate for all employees in that county. The
rate of reimbursement shall be at least the lesser of, and not more
than the greater of, the federal standard mileage rate and the rate
authorized by the travel management rule of the Department of
Administration.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 100--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §18A-2-14, relating to requiring
county boards of education to reimburse school personnel for
mileage costs when the employee is required to use a personal
vehicle in the course of employment; and establishing parameters
for rate of reimbursement.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 100, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 100) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 100) takes effect July 1,
2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 117, Relating to
determining competency to stand trial.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4, §27-6A-5,
§27-6A-6, §27-6A-8 and §27-6A-9 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §27-6A-10 and §27-
6A-11, all to read as follows:
ARTICLE 6A. COMPETENCY AND CRIMINAL RESPONSIBILITY OF PERSONS
CHARGED OR CONVICTED OF A CRIME.
§27-6A-1. Qualified forensic evaluator; qualified forensic
psychiatrist; qualified forensic psychologist; definitions and
requirements.
(a) For purposes of this article:
(1) A "qualified forensic psychiatrist" is:
(A) A psychiatrist licensed under the laws in this state to
practice medicine who has completed postgraduate education in
psychiatry in a program accredited by the Accreditation Council of Graduate Medical Education; and
(B) Board eligible or board certified in forensic psychiatry
by the American Board of Psychiatry and Neurology or actively
enrolled in good standing in a West Virginia training program
accredited by the Accreditation Council of Graduate Medical
Education to make the evaluator eligible for board certification by
the American Board of Psychiatry and Neurology in forensic
psychiatry or have two years of experience in completing
court-ordered forensic criminal evaluations, including having been
qualified as an expert witness by a West Virginia circuit court.
(2) A "qualified forensic psychologist" is:
(A) A licensed psychologist licensed under the laws of this
state to practice psychology; and
(B) Board eligible or board certified in forensic psychology
by the American Board of Professional Psychology or actively
enrolled in good standing in a West Virginia training program
approved by the American Board of Forensic Psychology to make the
evaluator eligible for board certification in forensic psychology
or has, at least two years of experience in performing court
ordered forensic criminal evaluations, including having been
qualified as an expert witness by a West Virginia circuit court.
(3) A "qualified forensic evaluator" is either a qualified
forensic psychiatrist or a qualified forensic psychologist as
defined in this section.
(4) "Department" means the Department of Health and Human
Resources.
(b) No qualified forensic evaluator may perform a forensic
evaluation on an individual under this chapter if the qualified
forensic evaluator has been the individual's treating psychologist
or psychiatrist within one year prior to any evaluation order.
§27-6A-2. Competency of defendant to stand trial; cause for
appointment of qualified forensic evaluator; written report;
observation period.
(a) Whenever a court of record has reasonable cause to believe
that a defendant in which an indictment has been returned, or a
warrant or summons issued, may be incompetent to stand trial it
shall, sua sponte or upon motion filed by the state or by or on
behalf of the defendant, at any stage of the proceedings order a
forensic evaluation of the defendant's competency to stand trial to
be conducted by one or more qualified forensic psychiatrists, or
one or more qualified forensic psychologists. If a court of record
or other judicial officer orders both a competency evaluation and
a criminal responsibility or diminished capacity evaluation, the
competency evaluation shall be performed first, and if a qualified
forensic evaluator is of the opinion that a defendant is not
competent to stand trial, no criminal responsibility or diminished
capacity evaluation may be conducted without further order of the
court. The initial forensic evaluation may not be conducted at a
state inpatient mental health facility unless the defendant resides
there.
(b) The court shall require the party making the motion for
the evaluation, and other parties as the court considers appropriate, to provide to the qualified forensic evaluator
appointed under subsection (a) of this section any information
relevant to the evaluations within ten business days of its
evaluation order. The information shall include, but not be
limited to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including
statements by the defendant made to the police, investigative
reports and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluations are to include a diminished capacity
assessment, the nature of any lesser included criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
for the prompt completion of any court ordered evaluation which may
include record review and defendant interview and shall, within ten
business days of the date of the completion of any evaluation,
provide to the court of record a written, signed report of his or
her opinion on the issue of competency to stand trial. If it is
the qualified forensic evaluator's opinion that the defendant is
not competent to stand trial, the report shall state whether the
defendant is substantially likely to attain competency within the
next three months and, in order to attain competency to stand
trial, whether the defendant requires inpatient management in a
mental health facility. The court may extend the ten-day period for filing the report if a qualified forensic evaluator shows good
cause to extend the period, but in no event may the period exceed
thirty days. If there are no objections by the state or defense
counsel, the court may, by order, dismiss the requirement for a
written report if the qualified forensic evaluator's opinion may
otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during the forensic evaluation ordered pursuant to
subsection (a) of this section or there have been one or more
inadequate or conflicting forensic evaluations performed pursuant
to said subsection and the court has reason to believe that an
observation period is necessary in order to determine if a person
is competent to stand trial, the court may order the defendant be
committed to a mental health facility designated by the department
for a period not to exceed fifteen days and an additional
evaluation be conducted in accordance with said subsection by one
or more qualified forensic psychiatrists, or a qualified forensic
psychiatrist and a qualified forensic psychologist. The court
shall order that at the conclusion of the fifteen day observation
period the sheriff of the county where the defendant was charged
shall take immediate custody of the defendant for transportation
and disposition as ordered by the court.
(e) A mental health facility not operated by the state is not
obligated to admit and treat a defendant under this section.
§27-6A-3. Competency of defendant to stand trial determination;
preliminary finding; hearing; evidence; disposition.
(a) Within five days of the receipt of the qualified forensic
evaluator's report and opinion on the issue of competency to stand
trial, the court of record shall make a preliminary finding on the
issue of whether the defendant is competent to stand trial and if
not competent whether there is a substantial likelihood that the
defendant will attain competency within the next three months. If
the court of record orders, or if the state or defendant or
defendant's counsel within twenty days of receipt of the
preliminary findings requests, a hearing, then a hearing shall be
held by the court of record within fifteen days of the date of the
preliminary finding, absent good cause being shown for a
continuance. If a hearing order or request is not filed within
twenty days, the preliminary findings of the court become the final
order.
(b) At a hearing to determine a defendant's competency to
stand trial the defendant has the right to be present and he or she
has the right to be represented by counsel and introduce evidence
and cross-examine witnesses. The defendant shall be afforded
timely and adequate notice of the issues at the hearing and shall
have access to all forensic evaluator's opinions. All rights
generally afforded a defendant in criminal proceedings shall be
afforded to a defendant in the competency proceedings, except trial
by jury.
(c) The court of record pursuant to a preliminary finding or
hearing on the issue of a defendant's competency to stand trial and
with due consideration of any forensic evaluation conducted pursuant to sections two and three of this article shall make a
finding of fact upon a preponderance of the evidence as to the
defendant's competency to stand trial based on whether or not the
defendant has sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding and
whether he or she has a rational as well as a factual understanding
of the proceedings against him or her.
(d) If at any point in the proceedings the defendant is found
competent to stand trial, the court of record shall forthwith
proceed with the criminal proceedings.
(e) If at any point in the proceedings the defendant is found
not competent to stand trial, the court of record shall at the same
hearing, upon the evidence, make further findings as to whether or
not there is a substantial likelihood that the defendant will
attain competency within the next ensuing three months.
(f) If at any point in the proceedings the defendant is found
not competent to stand trial and is found substantially likely to
attain competency, the court of record shall in the same order,
upon the evidence, make further findings as to whether the
defendant requires, in order to attain competency, inpatient
management in a mental health facility. If inpatient management is
required, the court shall order the defendant be committed to an
inpatient mental health facility designated by the department to
attain competency to stand trial and for a competency evaluation.
The term of this commitment may not exceed three months from the
time of entry into the facility. However, upon request by the chief medical officer of the mental health facility and based on
the requirement for additional management to attain competency to
stand trial, the court of record may, prior to the termination of
the three-month period, extend the period up to nine months from
entry into the facility. A forensic evaluation of competency to
stand trial shall be conducted by a qualified forensic evaluator
and a report rendered to the court, in like manner as subsections
(a) and (c), section two of this article every three months until
the court determines the defendant is not competent to stand trial
and is not substantially likely to attain competency.
(g) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency and if the defendant has been indicted or
charged with a misdemeanor or felony which does not involve an act
of violence against a person, the criminal charges shall be
dismissed. The dismissal order may, however, be stayed for twenty
days to allow civil commitment proceedings to be instituted by the
prosecutor pursuant to article five of this chapter. The defendant
shall be immediately released from any inpatient facility unless
civilly committed.
(h) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency, and if the defendant has been indicted or
charged with a misdemeanor or felony in which the misdemeanor or
felony does involve an act of violence against a person, then the
court shall determine on the record the offense or offenses of which the person otherwise would have been convicted, and the
maximum sentence he or she could have received. A defendant shall
remain under the court's jurisdiction until the expiration of the
maximum sentence unless the defendant attains competency to stand
trial and the criminal charges reach resolution or the court
dismisses the indictment or charge. The court shall order the
defendant be committed to a mental health facility designated by
the department that is the least restrictive environment to manage
the defendant and that will allow for the protection of the public.
Notice of the maximum sentence period with an end date shall be
provided to the mental health facility. The court shall order a
qualified forensic evaluator to conduct a dangerousness evaluation
to include dangerousness risk factors to be completed within thirty
days of admission to the mental health facility and a report
rendered to the court within ten business days of the completion of
the evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction shall continue an
additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(i) If the defendant has been ordered to a mental health
facility pursuant to subsection (h) of this section and the court
receives notice from the medical director or other responsible official of the mental health facility that the defendant no longer
constitutes a significant danger to self or others, the court shall
conduct a hearing within thirty days to consider evidence, with due
consideration of the qualified forensic evaluator's dangerousness
report or clinical summary report to determine if the defendant
shall be released to a less restrictive environment. The court may
order the release of the defendant only when the court finds that
the defendant is no longer a significant danger to self or others.
When a defendant's dangerousness risk factors associated with
mental illness are reduced or eliminated as a result of any
treatment, the court, in its discretion, may make the continuance
of appropriate treatment, including medications, a condition of the
defendant's release from inpatient hospitalization. The court
shall maintain jurisdiction of the defendant in accordance with
subsection (h) of this section. Upon notice that a defendant
ordered to a mental health facility pursuant to said subsection who
is released on the condition that he or she continues treatment
does not continue his or her treatment, the prosecuting attorney
shall, by motion, cause the court to reconsider the defendant's
release. Upon a showing that defendant is in violation of the
conditions of his or her release, the court shall reorder the
defendant to a mental health facility under the authority of the
department which is the least restrictive setting that will allow
for the protection of the public.
(j) The prosecuting attorney may, by motion, and in due
consideration of any chief medical officer's or forensic evaluator's reports, cause the competency to stand trial of a
defendant subject to the court's jurisdiction pursuant to
subsection (h) of this section or released pursuant to subsection
(i) of this section to be determined by the court of record while
the defendant remains under the jurisdiction of the court, and in
which case the court may order a forensic evaluation of competency
to stand trial be conducted by a qualified forensic evaluator and
a report rendered to the court in like manner as subsections (a)
and (c), section two of this article.
(k) Any defendant found not competent to stand trial may at
any time petition the court of record for a hearing on his or her
competency.
(l) Notice of court findings of a defendant's competency to
stand trial, of commitment for inpatient management to attain
competency, of dismissal of charges, of order for inpatient
management to protect the public, of release or conditional
release, or any hearings to be conducted pursuant to this section
shall be sent to the prosecuting attorney, the defendant and his or
her counsel and the mental health facility. Notice of court
release hearing or order for release or conditional release
pursuant to subsection (i) of this section shall be made available
to the victim or next of kin of the victim of the offense for which
the defendant was charged. The burden is on the victim or next of
kin of the victim to keep the court apprised of that person's
current mailing address.
(m) A mental health facility not operated by the state is not obligated to admit or treat a defendant under this section.
§27-6A-4. Criminal responsibility or diminished capacity
evaluation; court jurisdiction over persons found not guilty
by reason of mental illness.
(a) If the court of record finds, upon hearing evidence or
representations of counsel for the defendant, that there is
probable cause to believe that the defendant's criminal
responsibility or diminished capacity will be a significant factor
in his or her defense, the court shall appoint one or more
qualified forensic psychiatrists or qualified forensic
psychologists to conduct a forensic evaluation of the defendant's
state of mind at the time of the alleged offense. However, if a
qualified forensic evaluator is of the opinion that the defendant
is not competent to stand trial that no criminal responsibility or
diminished capacity evaluation may be conducted. The forensic
evaluation may not be conducted at a state inpatient mental health
facility unless the defendant has been ordered to a mental health
facility in accordance with subsection (c), section two of this
article or subsection (f) or (h), section three of this article.
To the extent possible, qualified forensic evaluators who have
conducted evaluations of competency under subsection (a), section
two of this article shall be used to evaluate criminal
responsibility or diminished capacity under this subsection.
(b) The court shall require the party making the motion for
the evaluations, and other parties as the court considers
appropriate, to provide to the qualified forensic evaluator appointed under subsection (a) of this section any information
relevant to the evaluation within ten business days of its
evaluation order. The information shall include, but not be limited
to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including
statements by the defendant made to the police, investigative
reports, and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluation is to include a diminished capacity
assessment, the nature of any lesser criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
within fifteen days of the receipt of appropriate documents the
completion of any court ordered evaluation which may include record
review and defendant interview and shall, within ten business days
of the date of the completion of any evaluation, provide to the
court of record a written, signed report of his or her opinion on
the issue of criminal responsibility and if ordered, on diminished
capacity. The court may extend the ten-day period for filing the
report if a qualified forensic evaluator shows good cause to extend
the period, but in no event may the period exceed thirty days. If
there are no objections by the state or defense counsel, the court
may, by order, dismiss the requirement for a written report if the
qualified forensic evaluator's opinion may otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during a forensic evaluation ordered pursuant to
subsection (a) of this section or there are inadequate or
conflicting forensic evaluations performed pursuant to subsection
(a) of this section, and the court has reason to believe that an
observation period and additional forensic evaluation or
evaluations are necessary in order to determine if a defendant was
criminally responsible or with diminished capacity, the court may
order the defendant be admitted to a mental health facility
designated by the department for a period not to exceed fifteen
days and an additional evaluation be conducted and a report
rendered in like manner as subsections (a) and (b) of this section
by one or more qualified forensic psychiatrists or one or more
qualified forensic psychologists. At the conclusion of the
observation period, the court shall enter a disposition order and
the sheriff of the county where the defendant was charged shall
take immediate custody of the defendant for transportation and
disposition as ordered by the court.
(e) If the verdict in a criminal trial is a judgment of not
guilty by reason of mental illness, the court shall determine on
the record the offense or offenses of which the acquitee could have
otherwise been convicted, and the maximum sentence he or she could
have received. The acquitee shall remain under the court's
jurisdiction until the expiration of the maximum sentence or until
discharged by the court. The court shall commit the acquitee to a mental health facility designated by the department that is the
least restrictive environment to manage the acquitee and that will
allow for the protection of the public. Notice of the maximum
sentence period with end date shall be provided to the mental
health facility. The court shall order a qualified forensic
evaluator to conduct a dangerousness evaluation to include
dangerousness risk factors to be completed within thirty days of
admission to the mental health facility and a report rendered to
the court within ten business days of the completion of the
evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction continues an
additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(f) In addition to any court ordered evaluations completed
pursuant to section two, three, or four of this article, the
defendant or the state has the right to an evaluation or
evaluations by a forensic evaluator or evaluators of his or her
choice and at his or her expense.
(g) A mental health facility not operated by the state is not
required to admit or treat a defendant or acquitee under this
section.
§27-6A-5. Release of acquitee to less restrictive environment; discharge from jurisdiction of the court.
(a) If, at any time prior to the expiration of the court's
jurisdiction, the chief medical officer or responsible official of
the mental health facility to which an acquitee has been ordered
pursuant to subsection (e), section four of this article believes
that the acquitee is not mentally ill or does not have significant
dangerousness risk factors associated with mental illness, he or
she shall file with the court of record notice of the belief and
shall submit evidence in support of the belief to include a
forensic evaluation dangerousness report conducted in like manner
as said subsection and recommendations for treatment, including
medications, that reduce or eliminate the dangerousness risk
factors associated with mental illness. The court of record shall
hold a hearing within thirty days of receipt of the notice to
consider evidence as to whether the acquitee shall be released from
the mental health facility to a less restrictive environment.
Notice of the hearing shall be made available to the prosecuting
attorney responsible for the charges brought against the acquitee
at trial, the acquitee and his or her counsel and the mental health
facility. If upon consideration of the evidence the court
determines that an acquitee may be released from a mental health
facility to a less restrictive setting, the court shall order,
within fifteen days of the hearing, the acquitee be released upon
terms and conditions, if any, the court considers appropriate for
the safety of the community and the well-being of the acquitee.
Any terms and conditions imposed by the court must be protective and therapeutic in nature, not punitive. When a defendant's
dangerousness risk factors associated with mental illness are
reduced or eliminated as a result of any treatment, the court, in
its discretion, may make the continuance of appropriate treatment,
including medications, a condition of the defendant's release from
inpatient hospitalization. The court shall maintain jurisdiction
of the defendant in accordance with said subsection. Upon notice
that an acquitee released on the condition that he or she continues
appropriate treatment does not continue his or her treatment, the
prosecuting attorney responsible for the charges brought against
the acquitee at trial shall, by motion, cause the court to
reconsider the acquitee's release and upon a showing that the
acquitee is in violation of the conditions of his or her release,
the court may reorder the acquitee to a mental health facility
designated by the department which is the least restrictive setting
appropriate to manage the acquitee and protect the public.
(b) No later than thirty days prior to the release from a
mental health facility or other management setting of an acquitee
because of the expiration of the court's jurisdiction as set in
accordance with subsection (e), section four of this article, if
the acquitee's physician, psychologist, chief medical officer or
other responsible party is of the opinion that the acquitee's
mental illness renders the acquitee to be likely to cause serious
harm to self or others, the supervising physician, psychologist,
chief medical officer or other responsible party shall notify the
court of record who shall promptly notify the prosecuting attorney in the county of the court having jurisdiction of the opinion and
the basis for the opinion. Following notification, the prosecuting
attorney may file, within ten days, a civil commitment application
against the acquitee pursuant to article five of this chapter.
§27-6A-6. Judicial hearing of defendant's defense other than not
guilty by reason of mental illness.
If a defendant who has been found to be incompetent not
competent to stand trial believes that he or she can establish a
defense of not guilty to the charges pending against him or her,
other than the defense of not guilty by reason of mental illness,
mental retardation or addiction, he the defendant may request an
opportunity to offer a defense thereto on the merits before the
court which has criminal jurisdiction. If the defendant is unable
to obtain legal counsel, the court of record shall appoint counsel
for the defendant to assist him or her in supporting the request by
affidavit or other evidence. If the court of record in its
discretion grants such a request, the evidence of the defendant and
of the state shall be heard by the court of record sitting without
a jury. If after hearing such petition the court of record finds
insufficient evidence to support a conviction, it shall dismiss the
indictment and order the release of the defendant from criminal
custody. The release order, however, may be stayed for ten days to
allow institution of civil commitment proceedings to be instituted
by the prosecutor pursuant to article five of this chapter:
Provided, That a defendant committed to a mental health facility
pursuant to subsection (f) or (h), section three of this article shall be immediately released from the facility unless civilly
committed.
§27-6A-8. Credit for time; expenses.
(a) If a person is convicted of a crime, any time spent in
involuntary confinement in a mental health facility as a result of
being charged with the crime shall be credited to the sentence.
(b) All medical and psychological expenses attendant upon
these proceedings inpatient care and treatment shall be paid by the
department.
§27-6A-9. Competency to be adjudicated in juvenile court.
In a similar manner and in accordance with procedures set
forth in subsection (a), section two of this article or subsection
(a), section four of this article, a juvenile court may order a
qualified forensic evaluator to conduct an evaluation of a juvenile
to aid the court in its disposition under chapter forty-nine of
this code. In a similar manner and in accordance with procedures
set forth in subsection (d), section two of this article or
subsection (d), section four of this article, a juvenile court may
order a period of observation for an alleged delinquent or
neglected juvenile at a mental health facility designated by the
department to aid the court in its disposition. The period of
observation may not exceed fifteen days.
§27-6A-10. Medications and management of court ordered individuals.
(a) At any time pursuant to section two, three or four of this
article, an individual is court ordered to a mental health facility
the individual has the right to receive treatment under the standards of medical management.
(b) An individual with health care decision making capacity
may refuse medications or other management unless court ordered to
be treated or unless a treating clinician determines that
medication or other management is necessary in emergencies or to
prevent danger to the individual or others.
§27-6a-11. Payment to forensic evaluators.
The department shall pay qualified forensic evaluators for all
matters related to conducting a court ordered forensic evaluation.
The department shall develop and implement a process for prompt
payment to qualified forensic evaluators. The department shall
establish policies and procedures for establishing a maximum rate
schedule for each of the four evaluation types (competency to stand
trial, criminal responsibility, diminished capacity, dangerousness)
to include all efforts towards the completion of each evaluation
such as scheduling and administrative tasks, record review,
psychological and other testing, interviews, report writing,
research, preparation and consultation. Such policies and
procedures shall include input from provider representatives as
necessary and appropriate. Any rate schedule shall be fair and
reasonable. The department shall consider requests for payment in
excess of established rates or other expenses for good cause
shown.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 117--A Bill to amend and
reenact §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4, §27-6A-5, §27-6A-6,
§27-6A-8 and §27-6A-9 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto two new sections,
designated §27-6A-10 and §27-6A-11, all relating to the
determination of a person's competency to stand trial and of
criminal responsibility generally; addressing court jurisdiction
over persons found not guilty by reason of mental illness; defining
terms requiring release from jurisdiction of the court under
certain circumstances; requiring periodic review of person found
incompetent to stand trial; establishing time limits for motions
and hearings; adding provisions for forensic evaluations and
evaluators; and addressing evaluations of diminished capacity and
dangerousness; providing for responsibility of costs; and requiring
the Department of Health and Human Services to establish policies
and procedures related to rates and reimbursements for evaluations
and related services.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 117, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 117) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2007, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 129, Authorizing PEIA to
transfer excess reserve funds to Retiree Health Benefit Trust Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5-16-2, §5-16-5, §5-16-7 and §5-16-25 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; that §5-
16D-1 and §5-16D-6 of said code be amended and reenacted; and that
§18A-1-1 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 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Agency" means the Public Employees Insurance Agency
created by this article.
(2) "Director" means the Director of the Public Employees
Insurance Agency created by this article.
(3) "Employee" means any person, including an elected officers
officer, who works regularly full time in the service of the State
of West Virginia and, for the purpose of this article only, the
term "employee" also means any person, including an elected
officers officer, who works regularly full time in the service of
a county board of education; a county, city or town in the state;
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; 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; any comprehensive community mental health center or comprehensive
mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section
one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; any person
who works regularly full time in the service of the University of
West Virginia Board of Trustees or the board of directors of the
state college system Higher Education Policy Commission, the West
Virginia Council for Community and Technical College Education or
a governing board, as defined in section two, article one, chapter
eighteen-b of this code; and any person who works regularly full
time in the service of a combined city-county health department
created pursuant to article two, chapter sixteen of this code; and
any person who works as a long-term substitute as defined in
section one, article one, chapter eighteen-a of this code, in the
service of a county board of education: Provided, That a long-term
substitute who is continuously employed for at least one hundred
thirty-three instructional days during an instructional term and
until the end of that instructional term is eligible for the
benefits provided in this article until the first day of September
following that instructional term: Provided, however, That a long-
term substitute employed fewer than one hundred thirty-three
instructional days during an instructional term is eligible for the
benefits provided in this article only during such time as he or
she is actually employed as a long-term substitute. On and after
the first day of January, one thousand nine hundred ninety-four, and upon election by a county board of education to allow elected
board members to participate in the Public Employees Insurance
Program pursuant to this article, any person elected to a county
board of education shall be considered to be an "employee" during
the term of office of the elected member: Provided, That the
elected member shall pay the entire cost of the premium if he or
she elects to be covered under this article. Any matters of doubt
as to who is an employee within the meaning of this article shall
be decided by the director.
On or after the first day of July, one thousand nine hundred
ninety-seven, a person shall be considered an "employee" if that
person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in
section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other
participants in that job-sharing arrangement as the "employee" for
purposes of this section; and
(iii) Works at least one third of the time required for a
full-time employee.
(4) "Employer" means the State of West Virginia, its boards,
agencies, commissions, departments, institutions or spending units;
a county board of education; a county, city or town in the state;
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; 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; any
comprehensive community mental health center or comprehensive
mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section
one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; and a
combined city-county health department created pursuant to article
two, chapter sixteen of this code. Any matters of doubt as to who
is an "employer" within the meaning of this article shall be
decided by the director. The term "employer" does not include
within its meaning the National Guard.
(5) "Finance board" means the Public Employees Insurance
Agency finance board created by this article.
(6) "Person" means any individual, company, association,
organization, corporation or other legal entity, including, but not
limited to, hospital, medical or dental service corporations;
health maintenance organizations or similar organization providing
prepaid health benefits; or individuals entitled to benefits under
the provisions of this article.
(7) "Plan", unless the context indicates otherwise, means the
medical indemnity plan, the managed care plan option or the group
life insurance plan offered by the agency.
(8) "Retired employee" means an employee of the state who
retired after the twenty-ninth day of April, one thousand nine
hundred seventy-one, and an employee of the University of West Virginia Board of Trustees or the board of directors of the state
college system or a county board of education who retires on or
after the twenty-first day of April, one thousand nine hundred
seventy-two, and all additional eligible employees who retire on or
after the effective date of this article, meet the minimum
eligibility requirements for their respective state retirement
system and whose last employer immediately prior to retirement
under the state retirement system is a participating employer:
Provided, That for the purposes of this article, the employees who
are not covered by a state retirement system but who are covered by
a state-approved or a state-contracted retirement system shall, in
the case of education employees, meet the minimum eligibility
requirements of the State Teachers Retirement System and in all
other cases, meet the minimum eligibility requirements of the
Public Employees Retirement System.
§5-16-5. Purpose, powers and duties of the finance board; initial
financial plan; financial plan for following year; and annual
financial plans.
(a) The purpose of the finance board created by this article
is to bring fiscal stability to the Public Employees Insurance
Agency through development of annual financial plans and long-range
plans designed to meet the agency's estimated total financial
requirements, taking into account all revenues projected to be made
available to the agency and apportioning necessary costs equitably
among participating employers, employees and retired employees and
providers of health care services.
(b) The finance board shall retain the services of an
impartial, professional actuary, with demonstrated experience in
analysis of large group health insurance plans, to estimate the
total financial requirements of the Public Employees Insurance
Agency for each fiscal year and to review and render written
professional opinions as to financial plans proposed by the finance
board. The actuary shall also assist in the development of
alternative financing options and perform any other services
requested by the finance board or the director. All reasonable
fees and expenses for actuarial services shall be paid by the
Public Employees Insurance Agency. Any financial plan or
modifications to a financial plan approved or proposed by the
finance board pursuant to this section shall be submitted to and
reviewed by the actuary and may not be finally approved and
submitted to the Governor and to the Legislature without the
actuary's written professional opinion that the plan may be
reasonably expected to generate sufficient revenues to meet all
estimated program and administrative costs of the agency, including
incurred but unreported claims, for the fiscal year for which the
plan is proposed. The actuary's opinion on the financial plan for
each fiscal year shall allow for no more than thirty days of
accounts payable to be carried over into the next fiscal year. The
actuary's opinion for any fiscal year shall not include a
requirement for establishment of a reserve fund.
(c) All financial plans required by this section shall
establish:
(1) Maximum levels of reimbursement which the Public Employees
Insurance Agency makes to categories of health care providers;
(2) Any necessary cost containment measures for implementation
by the director;
(3) The levels of premium costs to participating employers;
and
(4) The types and levels of cost to participating employees
and retired employees.
The financial plans may provide for different levels of costs
based on the insureds' ability to pay. The finance board may
establish different levels of costs to retired employees based upon
length of employment with a participating employer, ability to pay
or other relevant factors. The financial plans may also include
optional alternative benefit plans with alternative types and
levels of cost. The finance board may develop policies which
encourage the use of West Virginia health care providers.
In addition, the finance board may allocate a portion of the
premium costs charged to participating employers to subsidize the
cost of coverage for participating retired employees, on such terms
as the finance board determines are equitable and financially
responsible.
(d) (1) The finance board shall prepare an annual financial
plan for each fiscal year during which the finance board remains in
existence. The finance board chairman shall request the actuary to
estimate the total financial requirements of the Public Employees
Insurance Agency for the fiscal year.
(2) The finance board shall prepare a proposed financial plan
designed to generate revenues sufficient to meet all estimated
program and administrative costs of the Public Employees Insurance
Agency for the fiscal year. The proposed financial plan shall
allow for no more than thirty days of accounts payable to be
carried over into the next fiscal year. Before final adoption of
the proposed financial plan, the finance board shall request the
actuary to review the plan and to render a written professional
opinion stating whether the plan will generate sufficient revenues
to meet all estimated program and administrative costs of the
Public Employees Insurance Agency for the fiscal year. The
actuary's report shall explain the basis of its opinion. If the
actuary concludes that the proposed financial plan will not
generate sufficient revenues to meet all anticipated costs, then
the finance board shall make necessary modifications to the
proposed plan to ensure that all actuarially determined financial
requirements of the agency will be met.
(3) Upon obtaining the actuary's opinion, the finance board
shall conduct one or more public hearings in each congressional
district to receive public comment on the proposed financial plan,
shall review the comments and shall finalize and approve the
financial plan.
(4) Any financial plan shall be designed to allow thirty days
or less of accounts payable to be carried over into the next fiscal
year. For each fiscal year, the Governor shall provide his or her
estimate of total revenues to the finance board no later than the fifteenth day of October of the preceding fiscal year: Provided,
That, for the prospective financial plans required by this section,
the Governor shall estimate the revenues available for each fiscal
year of the plans based on the estimated percentage of growth in
general fund revenues. The finance board shall submit its final,
approved financial plan, after obtaining the necessary actuary's
opinion and conducting one or more public hearings in each
congressional district, to the Governor and to the Legislature no
later than the first day of January preceding the fiscal year. The
financial plan for a fiscal year becomes effective and shall be
implemented by the director on the first day of July of the fiscal
year. In addition to each final, approved financial plan required
under this section, the finance board shall also simultaneously
submit financial statements based on generally accepted accounting
practices (GAAP) and the final, approved plan restated on an
accrual basis of accounting, which shall include allowances for
incurred but not reported claims: Provided, however, That the
financial statements and the accrual-based financial plan
restatement shall not affect the approved financial plan.
(e) The provisions of chapter twenty-nine-a of this code shall
not apply to the preparation, approval and implementation of the
financial plans required by this section.
(f) By the first day of January of each year the finance board
shall submit to the Governor and the Legislature a prospective
financial plan, for a period not to exceed five years, for the
programs provided in this article. Factors that the board shall consider include, but are not limited to, the trends for the
program and the industry; the medical rate of inflation;
utilization patterns; cost of services; and specific information
such as average age of employee population, active to retiree
ratios, the service delivery system and health status of the
population.
(g) The prospective financial plans shall be based on the
estimated revenues submitted in accordance with subdivision (4),
subsection (d) of this section and shall include an average of the
projected cost-sharing percentages of premiums and an average of
the projected deductibles and copays for the various programs.
Beginning in the plan year which commences on the first day of
July, two thousand two, and in each plan year thereafter, until and
including the plan year which commences on the first day of July,
two thousand six, the prospective plans shall include incremental
adjustments toward the ultimate level required in this subsection,
in the aggregate cost-sharing percentages of premium between
employers and employees, including the amounts of any subsidization
of retired employee benefits. Provided, That for the period
beginning the first day of July, two thousand five, through the
thirty-first day of December, two thousand five, the portion of the
policy surcharge collected from certain fire and casualty insurers
and transferred into the fund in the State Treasury of the Public
Employees Insurance Agency pursuant to the provisions of section
thirty-three, article three, chapter thirty-three of this code
shall be used, in lieu of an increase in costs to active state pool employees, to subsidize any incremental adjustment in those
employees' portion of the aggregate cost-sharing percentages of
premium between employers and employees. The foregoing does not
prohibit any premium increase occasioned by an employee's increase
in salary: Provided, however, That for the period beginning the
first day of July, two thousand five, through the thirty-first day
of December, two thousand five, in lieu of an increase in costs to
retired state pool employees, such funds as are necessary to
subsidize any increase in costs to retired state pool employees
shall be transferred from the reserve fund established in section
twenty-five of this article into the fund in the State Treasury of
the Public Employees Insurance Agency. Effective in the plan year
commencing on the first day of July, two thousand six, and in each
plan year thereafter, the aggregate premium cost-sharing
percentages between employers and employees, including the amounts
of any subsidization of retired employee benefits, shall be at a
level of eighty percent for the employer and twenty percent for
employees, except for the employers provided in subsection (d),
section eighteen of this article whose premium cost-sharing
percentages shall be governed by that subsection. After the
submission of the initial prospective plan, the board may not
increase costs to the participating employers or change the average
of the premiums, deductibles and copays for employees, except in
the event of a true emergency as provided in this section:
Provided further, That if the board invokes the emergency
provisions, the cost shall be borne between the employers and employees in proportion to the cost-sharing ratio for that plan
year: And provided further Provided, however, That for purposes of
this section, "emergency" means that the most recent projections
demonstrate that plan expenses will exceed plan revenues by more
than one percent in any plan year: And provided Provided further,
That the aggregate premium cost-sharing percentages between
employers and employees, including the amounts of any subsidization
of retired employee benefits, scheduled to be at a level of twenty
percent for employees by the first day of July two-thousand six may
be offset, in part, by a legislative appropriation for that
purpose. prior to the first day of July two-thousand six
(h) The finance board shall meet on at least a quarterly basis
to review implementation of its current financial plan in light of
the actual experience of the Public Employees Insurance Agency.
The board shall review actual costs incurred, any revised cost
estimates provided by the actuary, expenditures and any other
factors affecting the fiscal stability of the plan and may make any
additional modifications to the plan necessary to ensure that the
total financial requirements of the agency for the current fiscal
year are met. The finance board may not increase the types and
levels of cost to employees during its quarterly review except in
the event of a true emergency.
(i) For any fiscal year in which legislative appropriations
differ from the Governor's estimate of general and special revenues
available to the agency, the finance board shall, within thirty
days after passage of the budget bill, make any modifications to the plan necessary to ensure that the total financial requirements
of the agency for the current fiscal year are met.
§5-16-7. Authorization to establish group hospital and surgical
insurance plan, group major medical insurance plan, group
prescription drug plan and group life and accidental death
insurance plan; rules for administration of plans; mandated
benefits; what plans may provide; optional plans; separate
rating for claims experience purposes.
(a) The agency shall establish a group hospital and surgical
insurance plan or plans, a group prescription drug insurance plan
or plans, a group major medical insurance plan or plans and a group
life and accidental death insurance plan or plans for those
employees herein made eligible, and to establish and promulgate
rules for the administration of these plans, subject to the
limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X-ray and laboratory services
in connection with mammograms when medically appropriate and
consistent with current guidelines from the United States
Preventive Services Task Force; pap smears, either conventional or
liquid-based cytology, whichever is medically appropriate and
consistent with the current guidelines from either the United
States Preventive Services Task Force or the American College of
Obstetricians and Gynecologists; and a test for the human papilloma
virus (HPV) when medically appropriate and consistent with current
guidelines from either the United States Preventive Services Task
Force or the American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a
woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and
over;
(3) Annual screening for kidney disease as determined to be
medically necessary by a physician using any combination of blood
pressure testing, urine albumin or urine protein testing and serum
creatinine testing as recommended by the National Kidney
Foundation;
(4) For plans that include maternity benefits, coverage for
inpatient care in a duly licensed health care facility for a mother
and her newly born infant for the length of time which the
attending physician considers medically necessary for the mother or
her newly born child: Provided, That no a plan may not deny
payment for a mother or her newborn child prior to forty-eight
hours following a vaginal delivery, or prior to ninety-six hours
following a caesarean section delivery, if the attending physician
considers discharge medically inappropriate;
(4) (5) For plans which provide coverages for post-delivery
care to a mother and her newly born child in the home, coverage for
inpatient care following childbirth as provided in subdivision (3)
of this subsection if inpatient care is determined to be medically
necessary by the attending physician. Those plans may also
include, among other things, medicines, medical equipment,
prosthetic appliances and any other inpatient and outpatient
services and expenses considered appropriate and desirable by the agency; and
(5) (6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential
care or schooling. For purposes of this section, "serious mental
illness" means an illness included in the American psychiatric
association's diagnostic and statistical manual of mental
disorders, as periodically revised, under the diagnostic categories
or subclassifications of: (i) Schizophrenia and other psychotic
disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv)
substance-related disorders with the exception of caffeine-related
disorders and nicotine-related disorders; (v) anxiety disorders;
and (vi) anorexia and bulimia. With regard to any covered
individual who has not yet attained the age of nineteen years,
"serious mental illness" also includes attention deficit
hyperactivity disorder, separation anxiety disorder and conduct
disorder.
(B) Notwithstanding any other provision in this section to the
contrary, in the event that the agency can demonstrate actuarially
that its total anticipated costs for the treatment of mental
illness for any plan will exceed or have exceeded two percent of
the total costs for such plan in any experience period, then the
agency may apply whatever cost containment measures may be
necessary, including, but not limited to, limitations on inpatient
and outpatient benefits, to maintain costs below two percent of the
total costs for the plan.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its
plan. With regard to both medical-surgical and mental health
benefits, it may make determinations of medical necessity and
appropriateness, and it may use recognized health care quality and
cost management tools, including, but not limited to, limitations
on inpatient and outpatient benefits, utilization review,
implementation of cost containment measures, preauthorization for
certain treatments, setting coverage levels, setting maximum number
of visits within certain time periods, using capitated benefit
arrangements, using fee-for-service arrangements, using third-party
administrators, using provider networks and using patient cost
sharing in the form of copayments, deductibles and coinsurance.
(b) The agency shall make available to each eligible employee,
at full cost to the employee, the opportunity to purchase optional
group life and accidental death insurance as established under the
rules of the agency. In addition, each employee is entitled to
have his or her spouse and dependents, as defined by the rules of
the agency, included in the optional coverage, at full cost to the
employee, for each eligible dependent; and with full authorization
to the agency to make the optional coverage available and provide
an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for
claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public
institutions of higher education and county boards of education;
(3) All nonteaching employees of the university of West
Virginia board of trustees or the board of directors of the state
college system Higher Education Policy Commission, West Virginia
Council for Community and Technical College Education and county
boards of education; or
(4) Any other categorization which would ensure the stability
of the overall program.
(d) The agency shall maintain the medical and prescription
drug coverage for Medicare-eligible retirees by providing coverage
through one of the existing plans or by enrolling the Medicare-
eligible retired employees into a Medicare-specific plan,
including, but not limited to, the Medicare/Advantage Prescription
Drug Plan. In the event that a Medicare-specific plan would no
longer be available or advantageous for the agency and the
retirees, the retirees shall remain eligible for coverage through
the agency.
§5-16-25. Reserve fund.
Upon the effective date of this section, the finance board
shall establish and maintain a reserve fund for the purposes of
offsetting unanticipated claim losses in any fiscal year.
Beginning with the fiscal year two thousand two plan and for each
succeeding fiscal year plan, the finance board shall transfer ten
percent of the projected total plan costs for that year into the
reserve fund, which is to be certified by the actuary and included
in the final, approved financial plan submitted to the Governor and
Legislature in accordance with the provisions of this article. Any moneys saved in a plan year shall be transferred into the reserve
fund. At the close of any fiscal year in which the balance in the
reserve fund exceeds the recommended reserve amount by fifteen
percent, the executive director shall transfer that amount to the
fund established in section fourteen-a, article two, chapter five-a
of this code for appropriation by the Legislature. At the close of
any fiscal year in which the balance in the reserve fund exceeds
the recommended reserve amount by fifteen percent, the executive
director shall transfer that amount to the West Virginia Retiree
Health Benefit Trust Fund created in section two, article sixteen-d
of this chapter.
ARTICLE 16D. WEST VIRGINIA RETIREMENT HEALTH BENEFIT TRUST FUND.
§5-16D-1. Definitions.
As used in this article, the term:
(a) "Actuarial accrued liability" means that portion, as
determined by a particular actuarial cost method, of the actuarial
present value of fund obligations and administrative expenses which
is not provided by future normal costs.
(b) "Actuarial cost method" means a method for determining the
actuarial present value of the obligations and administrative
expenses of the fund and for developing an actuarially equivalent
allocation of the value to time periods, usually in the form of a
normal cost and an actuarial accrued liability. Acceptable
actuarial methods are the aggregate, attained age, entry age,
frozen attained age, frozen entry age and projected unit credit
methods.
(c) "Actuarially sound" means that calculated contributions to
the fund are sufficient to pay the full actuarial cost of the fund.
The full actuarial cost includes both the normal cost of providing
for fund obligations as they accrue in the future and the cost of
amortizing the unfunded actuarial accrued liability over a period
of no more than thirty years.
(d) "Actuarial present value of total projected benefits"
means the present value, at the valuation date, of the cost to
finance benefits payable in the future, discounted to reflect the
expected effects of the time value of money and the probability of
payment.
(e) "Actuarial assumptions" means assumptions regarding the
occurrence of future events affecting the fund such as mortality,
withdrawal, disability, and retirement; changes in compensation and
offered post-employment benefits; rates of investment earnings and
other asset appreciation or depreciation; procedures used to
determine the actuarial value of assets; and other relevant items.
(f) "Actuarial valuation" means the determination, as of a
valuation date, of the normal cost, actuarial accrued liability,
actuarial value of assets and related actuarial present values for
the fund.
(g) "Administrative expenses" means all expenses incurred in
the operation of the fund, including all investment expenses.
(h) "Annual required contribution" means the amount employers
must contribute in a given year to fully fund the trust, as
determined by the actuarial valuation in accordance with requirements of generally accepted accounting principles. This
amount shall represent a level of funding that if paid on an
ongoing basis is projected to cover the normal cost each year and
amortize any unfunded actuarial liabilities of the plan over a
period not to exceed thirty years.
(i) "Board" means the Public Employees Insurance Agency
Finance Board created in section four, article sixteen of this
chapter.
(j) "Cost-sharing multiple employer plan" means a single plan
with pooling (cost-sharing) arrangements for the participating
employers. All risk, rewards and costs, including benefit costs,
are shared and not attributed individually to the employers. A
single actuarial valuation covers all plan members and the same
contribution rate applies for each employer.
(k) "Covered health care expenses" means all actual health
care expenses paid by the health plan on behalf, of fund
beneficiaries. Actual health care expenses include claims payments
to providers and premiums paid to intermediary entities and health
care providers by the health plan.
(l) "Employer" means any employer as defined by section two,
article sixteen of this chapter, which has or will have retired
employees in any Public Employees Insurance Agency health plan.
(m) "Employer annual required contribution" means the portion
of the annual required contribution which is the responsibility of
that particular employer.
(n) "Fund" means the West Virginia Retiree Health Benefit Trust Fund established under this article.
(o) "Fund beneficiaries" means all persons receiving post-
employment health care benefits through the health plan.
(p) "Health plan" means the health insurance plan or plans
established under article sixteen of this chapter.
(q) "Minimum annual employer premium payment" means the annual
amount paid by employers toward retiree premiums, which, when
combined with the retirees' contributions on their premiums that
year, provide sufficient funds to cover all projected retiree
covered health care expenses and related administrative costs for
that year. The finance board shall develop the minimum annual
employer premium payment as part of its financial plan each year as
addressed in section five, article sixteen of this chapter.
(r) "Normal cost" means that portion of the actuarial present
value of the fund obligations and expenses which is allocated to a
valuation year by the actuarial cost method used for the fund.
(s) "Obligations" means the administrative expenses of the
fund and the cost of covered health care expenses incurred on
behalf of fund beneficiaries.
(t) "Other post-employment benefits" or "retiree post-
employment health care benefits" means those benefits as addressed
by governmental accounting standards board statement no. 43, or any
subsequent governmental standards board statement that may be
applicable to the fund.
(u) "Plan for other post-employment benefits" means the fiscal
funding plan for retiree post-employment health care benefits as it relates to governmental accounting standards board statement no.
43, or any subsequent governmental accounting standards board
statements that may be applicable to the fund.
(v) "Retiree" means retired employee as defined by section
two, article sixteen of this chapter.
(w) "Retirement system" or "system" means the West Virginia
Consolidated Public Retirement Board created and established by
article ten of this chapter and includes any retirement systems or
funds administered or overseen by the Consolidated Public
Retirement Board.
(x) "Unfunded actuarial accrued liability" means for any
actuarial valuation the excess of the actuarial accrued liability
over the actuarial value of the assets of the fund under an
actuarial cost method used by the fund for funding purposes.
§5-16D-6. Mandatory employer contributions.
(a) The board shall annually set the total annual required
contribution sufficient to maintain the fund in an actuarially
sound manner in accordance with generally accepted accounting
principles.
(b) The board shall annually allocate to the respective
employers the employer's portion of the annual required
contribution, which allocated amount is the "employer annual
required contribution".
(c) The board may apportion the annual required contribution
into various components. These components may include the amortized
unfunded actuarial accrued liability, the total normal cost, the employer annual required contribution and the lesser included
minimum annual employer premium payment. In the board's annual
apportionment of the annual required contribution, any amounts of
the minimum annual employer payment apportioned to reduce the
amortized unfunded actuarial accrued liability shall not be treated
as premium by the board in the finance plan but, rather, shall be
treated as contributions to prefund other post-employment benefits.
(d) It shall be the mandatory responsibility of employers to
Employers shall make annual contributions to the fund in, at least,
the amount of the minimum annual employer premium payment rates
established by the board.
(e) It shall be the responsibility of the Public Employees
Insurance Agency to The Public Employees Insurance Agency shall
bill each employer for the employer annual required contribution
and the included minimum annual employer premium payment. It shall
be the responsibility of the Public Employees Insurance Agency to
The Public Employees Insurance Agency shall annually collect the
minimum annual employer premium payment. The Public Employees
Insurance Agency shall, in addition to the minimum annual employer
premium payment, collect any amounts the employer elects to pay
toward the employer annual required contribution. Any employer
annual required contribution amount not satisfied by the respective
employer shall remain the liability of that employer until fully
paid.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 1. GENERAL PROVISIONS.
§18A-1-1. Definitions.
The definitions contained in section one, article one, chapter
eighteen of this code apply to this chapter. In addition, the
following words used in this chapter and in any proceedings
pursuant to this chapter shall, unless the context clearly
indicates a different meaning, be construed as follows:
(a) "School personnel" means all personnel employed by a
county board whether employed on a regular full-time basis, an
hourly basis or otherwise. School personnel shall be comprised of
two categories: Professional personnel and service personnel;
(b) "Professional personnel" means persons who meet the
certification requirements of the state, licensing requirements of
the state or both and includes the professional educator and other
professional employees;
(c) "Professional educator" has the same meaning as "teacher"
as defined in section one, article one, chapter eighteen of this
code. Professional educators shall be classified as:
(1) "Classroom teacher" means a professional educator who has
direct instructional or counseling relationship with pupils,
spending the majority of his or her time in this capacity;
(2) "Principal" means a professional educator who, as agent of
the county board, has responsibility for the supervision,
management and control of a school or schools within the guidelines
established by the county board. The major area of the
responsibility shall be the general supervision of all the schools
and all school activities involving pupils, teachers and other school personnel;
(3) "Supervisor" means a professional educator who, whether by
this or other appropriate title, is responsible for working
primarily in the field with professional and other personnel in
instructional and other school improvement; and
(4) "Central office administrator" means a superintendent,
associate superintendent, assistant superintendent and other
professional educators, whether by these or other appropriate
titles, who are charged with the administering and supervising of
the whole or some assigned part of the total program of the
countywide school system;
(d) "Other professional employee" means that person from
another profession who is properly licensed and is employed to
serve the public schools and includes a registered professional
nurse, licensed by the West Virginia Board of Examiners for
Registered Professional Nurses and employed by a county board, who
has completed either a two-year (sixty-four semester hours) or a
three-year (ninety-six semester hours) nursing program;
(e) "Service personnel" means those who serve the school or
schools as a whole, in a nonprofessional capacity, including such
areas as secretarial, custodial, maintenance, transportation,
school lunch and as aides;
(f) "Principals academy" or "academy" means the academy
created pursuant to section two-b, article three-a of this chapter;
(g) "Center for professional development" means the center
created pursuant to section one, article three-a of this chapter;
(h) "Job-sharing arrangement" means a formal, written
agreement voluntarily entered into by a county board with two or
more of its employees who wish to divide between them the duties
and responsibilities of one authorized full-time position;
(i) "Prospective employable professional personnel" means
certified professional educators who:
(1) Have been recruited on a reserve list of a county board;
(2) Have been recruited at a job fair or as a result of
contact made at a job fair;
(3) Have not obtained regular employee status through the job
posting process provided for in section seven-a, article four of
this chapter; and
(4) Have obtained a baccalaureate degree from an accredited
institution of higher education within the past year;
(j) "Dangerous student" means a pupil who is substantially
likely to cause serious bodily injury to himself, herself or
another individual within that pupil's educational environment,
which may include any alternative education environment, as
evidenced by a pattern or series of violent behavior exhibited by
the pupil, and documented in writing by the school, with the
documentation provided to the student and parent or guardian at the
time of any offense; and
(k) "Alternative education" means an authorized departure from
the regular school program designed to provide educational and
social development for students whose disruptive behavior places
them at risk of not succeeding in the traditional school structures and in adult life without positive interventions; and
(l) "Long-term substitute" means a substitute employee who
fills a vacant position:
(1) That the county superintendent expects to extend for at
least ninety consecutive days and is either:
(A) Listed in the job posting as a long-term substitute
position of over ninety days; or
(B) Listed in a job posting as a regular, full-time position
and:
(i) Is not filled by a regular, full-time employee; and
(ii) Is filled by a substitute employee.
For the purposes of section two, article sixteen, chapter five
of this code, long-term substitute does not include a retired
employee hired to fill the vacant position.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 129--A Bill to amend and
reenact §5-16-2, §5-16-5, §5-16-7 and §5-16-25 of the Code of West
Virginia, 1931, as amended; to amend and reenact §5-16D-1 and §5-
16D-6 of said code; and to amend and reenact §18A-1-1 of said code,
all relating to Public Employees Insurance Agency; expanding
insurance coverage eligibility to include certain substitute
employees; expanding coverage to include certain procedures;
clarifying certain eligibility provision; requiring continued
insurance coverage for Medicare eligible retired employees; modifying treatment of reserve fund balances; modifying treatment
of certain portions of required employer annual payments; modifying
certain employer annual required contribution provisions; making
technical corrections; and deleting obsolete provisions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 129, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 129) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 129) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 192, Authorizing
Commissioner of Division of Corrections to issue warrants for
certain inmates.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 278, Authorizing Department
of Health and Human Resources promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE LEGISLATIVE RULES.
§64-5-1. Health Care Authority.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section eight, article two-d, chapter sixteen of this
code, modified by the Health Care Authority to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the eighteenth day of January, two thousand
seven, relating to the Health Care Authority (certificate of need,
65 CSR 7) is authorized.
(b) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section eight, article two-d, chapter sixteen of this
code, modified by the Health Care Authority to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the eighteenth day of January, two thousand
seven, relating to the Health Care Authority (health services
offered by health professionals, 65 CSR 17) is authorized with the
following amendments:
On page one, subsection 1.2., by striking out "@" and
inserting in lieu thereof "c";
On page one, section two, by striking subdivision 2.1.c. in
its entirety and inserting in lieu thereof the following:
"2.1.c. Any facility owned or operated by one or more health
professionals licensed, authorized, or organized pursuant to
Chapter 30 of the West Virginia Code which offers laboratory or imaging services to patients that are sent by other licensed health
care professionals for the sole purpose of obtaining the laboratory
or imaging services, regardless of the cost associated with the
proposal. A facility shall not be deemed a diagnostic center under
subsection 2.1.c. if the proportion of laboratory procedures
performed on such patients does not exceed 25% of the total
laboratory procedures performed by the facility, and the proportion
of imaging procedures performed on such patients does not exceed
25% of the total imaging procedures performed by the facility;";
On page two, paragraph 2.1.g.1., after the words "first
offered;" by striking out the word "or";
And,
On page two, paragraph 2.1.g.2., by changing the period to a
semicolon and inserting the word "or" and the following:
"2.1.g.3. Such laboratory or imaging services were offered by
the private office practice on the effective date of this rule;
provided however, that the number of laboratory or imaging
procedures performed on patients who are sent to the private office
practice subsequent to the effective date of this rule for the sole
purpose of obtaining laboratory or imaging services must remain at
or below the level performed on such patients in 2006, or the level
established by calculating an annual average based upon calendar
years 2004 through 2006, inclusive."
§64-5-2. Department of Health and Human Resources.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the authority of section four, article one, chapter sixteen of this
code relating to the Department of Health and Human Resources
(public water systems, 64 CSR 3) is authorized.
(b) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article one, chapter sixteen of this
code, modified by the Department of Health and Human Resources to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the twenty-second day of
December, two thousand six, relating to the Department of Health
and Human Resources (public water system operators, 64 CSR 4) is
authorized.
(c) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section six, article five-r, chapter sixteen of this
code, modified by the Department of Health and Human Resources to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the nineteenth day of
December, two thousand six, relating to the Department of Health
and Human Resources (nursing home licensure, 64 CSR 13) is
authorized.
(d) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article one, chapter sixteen of this
code, modified by the Department of Health and Human Resources to
meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of
December, two thousand six, relating to the Department of Health
and Human Resources (recreational water facilities, 64 CSR 16) is
authorized with the following amendments:
On page four, section six, by striking out all of subsection
6.1. and inserting in lieu thereof a new subsection 6.1., to read
as follows:
6.1. A recreational water facility that is designed,
constructed or renovated after the effective date of this rule
shall comply with the National Spa and Pool Institute ANSI/NPSI-1
2003 Standard for Public Swimming Pools, ANSI/NPSI-2 1999 Standard
for Public Spas, ANSI/IAF-9 2005 Standard for Public Water Parks
and ANSI/APSP-7 2006 National Standard for Suction Entrapment
Avoidance in Swimming Pools, Wading Pools, Spa, Hot Tubs, and Catch
Basins. These standards are available through the internet at:
https://www.nspi.org.;
And,
On page nine, section ten, by striking out all of subdivision
10.12.a. and inserting in lieu thereof a new subdivision 10.12.a.,
to read as follows:
10.12.a. Pools with single suction outlets must meet National
Spa and Pool Institute ANSI/NSPI-1 2003 Standard for Public
Swimming Pools, public spa suction outlets must meet ANSI/NSPI-2
1999 Standard for Public Spas, and Public Water Park suction
outlets must meet ANSI/IAF-9 2005 Standard for Public Water Parks
and ANSI/APSP-7 2006 National Standard for Suction Entrapment Avoidance in Swimming Pools, Wading Pools, Spa, Hot Tubs, and Catch
Basins. These standards are available through the internet at:
https://www.nspi.org.
(e) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section three, article five, chapter sixteen of this
code, modified by the Department of Health and Human Resources to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the twenty-second day of
January, two thousand seven, relating to the Department of Health
and Human Resources (vital statistics, 64 CSR 32) is authorized.
(f) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section fourteen, article four-c, chapter sixteen of
this code, modified by the Department of Health and Human Resources
to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the State Register on the twenty-second
day of December, two thousand six, relating to the Department of
Health and Human Resources (emergency medical services, 64 CSR 48)
is authorized with the following amendments:
On page forty-eight, section eighteen, subsection 18.6, line
thirty-nine, following the word "of", by inserting the words
"Examiners for";
On page forty-eight, section eighteen, subsection 18.7, line
forty-three, following the word "or" by inserting the words
"Examiners for"; and
On page forty-eight, section eighteen, subsection 18.7, line
forty-three, following the word "Nurses" by inserting the words "or
his or her designee".
§64-5-3. Division of Human Services.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixth day of December, two
thousand six, relating to the Division of Human Services (child
care center licensing, 78 CSR 1) is authorized with the following
amendments:
On page eleven, subsection 4.6, by striking out "4.6.a." and
by redesignating paragraphs 4.6.a.1. through 4.6.a.3. as
subdivisions 4.6.a. through 4.6.c.;
On page twenty, subdivision 8.4.c., by striking out "8.4.d."
and inserting in lieu thereof "8.4.e.";
On page sixty-eight, subsection 19.11, by striking out
"19.11.a." and by redesignating paragraphs 19.11.a.1. through
19.11.a.4. as subdivisions 19.11.a. through 19.11.d.;
And,
On page seventy-three, section twenty-two, by striking out
"22.1." and by redesignating subdivisions 22.1.a. through 22.1.h.
as subdivisions 22.1. through 22.8.
(b) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twentieth day of November, two
thousand six, relating to the Division of Human Services (child
placing agencies' licensure, 78 CSR 2) is authorized with the
following amendments:
On page six, subsection 4.4., by striking out "4.4.a.";
On page seven, subsection 4.5., by striking out "4.5.a.";
On page seven, subsection 4.7., by striking out "4.7.1.";
On page eighteen, subdivision 8.1.d., by striking out
"8.1.d.1.";
On page twenty-four, subdivision 9.6.1., by striking out
"9.6.a.1.";
On page twenty-eight, subsection 10.6., by striking out
"10.6.a.";
On page thirty-nine, section seventeen, by striking out
"17.1." and by redesignating subdivisions 17.1.a. through 17.1.c as
subdivisions 17.1 through 17.3;
On page forty, section eighteen, by striking out "18.1.";
On pages fifty and fifty-one, section twenty-six, by striking
out "26.1." and by redesignating subdivisions 26.1.a. through
26.1.c. as subdivisions 26.1. through 26.3.;
And,
On page fifty-one, section twenty-seven, by striking out "27.1.".
(c) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-second day of December,
two thousand six, relating to the Division of Human Services
(minimum licensing requirements for group residential facilities in
West Virginia, 78 CSR 3) is authorized with the following
amendments:
On page two, subsection 2.2, by striking out "2.2.a.";
On pages two and three, subsection 2.3., by striking out
"2.3.a." and by redesignating paragraphs 2.3.a.1. through 2.3.6. as
subdivisions 2.3.a. through 2.3.f.;
On page seventeen, subsection 4.11., by striking out
"4.11.a.";
On page seventeen, subsection 4.12., by striking out
"4.12.a.";
On pages twenty-two and twenty-three, subsection 5.8., by
striking out "5.8.a." and by redesignating paragraphs 5.8.a.1.
through 5.8.4. as subdivisions 5.8.a. through 5.8.d.;
On page twenty-three, subsection 5.10., by striking out
"5.10.a.";
On pages twenty-six and twenty-seven, subsection 7.1., by
striking out "7.1.a." and by redesignating paragraphs 7.1.a.1. through 7.1.a.5. as subdivisions 7.1.a. through 7.1.e.;
On pages twenty-nine and thirty, subsection 7.9., by striking
out "7.9.a." and by redesignating paragraphs 7.9.a.1. through
7.9.a.11. as subdivisions 7.9.a. through 7.9.k.;
On page thirty, subsection 8.5., by striking out "8.5.a.";
On page thirty-two, section eight, by striking paragraph
8.7.c.10 in its entirety and inserting in lieu thereof the
following:
"8.7.c.10. Expected outcomes as appropriate.";
On page thirty-two, section eight, by striking paragraphs
8.7.d.4 through 8.7.d.9 in their entirety and inserting in lieu
thereof the following:
"8.7.d.4. Evidence of ability to conduct business in the
State of West Virginia; and
8.7.d.5. Evidence of a criminal background check.";
On page forty-two, section eleven, by striking paragraph
11.2.a.3. in its entirety and inserting in lieu thereof the
following:
"11.2.a.3. Adult Pulmonary Resuscitation (CPR), unless the
organization serves an infant population, in which case both adult
and infant cardiopulmonary resuscitation training is required.
This training must be updated every two years.";
On page forty-three, section eleven, by striking paragraph
11.2.a.14. in its entirety and inserting lieu thereof the
following:
"11.2.a.14. Heimlich's maneuver or abdominal thrust or any other life-saving technique for choking/obstructed airway as
recognized by the American Red Cross or equivalent.";
On page fifty-four, subsection 13.1, by striking out
"13.1.a.";
On page fifty-four, subsection 13.2., by striking out
"13.2.a." and by redesignating paragraph 13.2.a.1. as subdivision
13.a.;
On page sixty, subsection 13.6., by striking out "13.6.a.";
On page sixty, subsection 14.1., by striking out "14.1.a." and
by redesignating paragraphs 14.1.a.1. through 14.1.a.6. as
subdivisions 14.1.a. through 14.1.f.;
On page sixty-one, subsection 14.3., by striking out "14.3.a."
and by redesignating paragraphs 14.3.a.1. through 14.3.a.4. as
subdivisions 14.3.a. through 14.3.d.;
On page sixty-seven, subsection 14.6., by striking out
"14.6.a.";
On page sixty-nine, subsection 14.8., by striking out
"14.8.a.";
On page seventy-two, subsection 14.13., by striking out
"14.13.a.";
On page seventy-three, subsection 14.14., by striking out
"14.14.a." and by redesignating paragraphs 14.14.a.1. through
14.1.a.5. as subdivisions 14.1.a. through 14.1.e.;
On page seventy-seven, subsection 14.19., by striking out
"14.19.a.";
On page eighty-two, subdivision 15.4.h., by redesignating paragraphs 15.4.g.1. through 15.4.g.3 as 15.4.h.1. through
15.4.h.3. and by redesignating the second subdivision 15.4.h. as
15.4.i.;
On page eighty-six, subdivision 16.4., by striking out
"16.4.a.";
On pages ninety-one and ninety-two, subsection 18.2, by
striking out "18.2.a.", by redesignating subdivisions 18.2.a.1.
through 18.2.a.5. as subdivisions 18.2.a. through 18.2.e. and by
redesignating subparagraph 18.2.a.5.A. through 18.2.a.5.B. as
paragraphs 18.2.e.1. though 18.2.e.5.;
On page ninety-two, subsection 18.3., by striking out
"18.3.a.";
On page ninety-four, subsection 18.6., by striking out
"18.6.a.";
On page ninety-five, subsection 18.7., by striking out
"18.7.a." and by redesignating paragraphs 18.7.a.1. through
18.8.a.4. as subdivisions 18.7.a. through 18.7.d.;
On page ninety-five, subsection 19.1., by striking out
"19.1.a." and by redesignating paragraphs 19.1.a.1. through
19.1.a.6. as subdivisions 19.1.a. through 19.1.f.;
On page one hundred six, subsection 20.5., by striking out
"20.5.a. Abrogation of Client Rights" and "20.5.a.1.";
On page one hundred seven, subsection 21.1., by striking out
"21.1.a.";
On page one hundred seven, subsection 22.1., by striking out
"22.1.a";
On page one hundred eight, subsection 22.2, by striking out
"22.1.a";
On page one hundred nine, subsection 22.5, by striking out
"22.5.a" and by redesignating paragraphs 22.5.a.1. through
22.5.a.4. as subdivisions 22.5.a. through 22.5.d.;
On page one hundred eleven, subsection 22.8, by striking out
"22.8.a";
And,
On page one hundred twelve, subsection 22.10, by striking out
"22.10.a".
(d) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-second day of January,
two thousand seven, relating to the Division of Human Services
(family child care facility licensing requirements, 78 CSR 18) is
authorized with the following amendments:
On pages four and five, subsection 4.3., by striking out
"4.3.a." and by redesignating paragraphs 4.3.a.1. through 4.3.a.4.
as subdivisions 4.3.a. through 4.3.d.;
On page twelve, subsection 8.1., by striking out "8.1.a.", by
redesignating paragraphs 8.1.a.1. through 8.1.a.4. as subdivisions
8.1. through 8.4. and by redesignating subparagraphs 8.1.a.4.a.
through 8.1.a.4.d. as paragraphs 8.4.a. through 8.4.d.;
On page nineteen, paragraph 14.1.a.5., by redesignating
subparagraphs 14.1.a.5.a. and 14.1.a.5.b. as subparagraphs
14.1.a.5.A. and 14.1.a.5.B.;
On page twenty-eight, subsection 18.3., by striking out
"18.3.a." and by designating paragraphs 18.3.a.1. through 18.3.a.7.
as subdivisions 18.3.a. through 18.3.g.;
And,
On page thirty-four, section twenty-four, by striking out
"24.1."
(e) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixth day of December, two
thousand six, relating to the Division of Human Services (family
child care home registration requirements, 78 CSR 19) is authorized
with the following amendments:
On page thirteen, subsection 7.3, by striking out "7.3.a." and
by redesignating paragraphs 7.3.a.1. through 7.3.a.5. as
subdivisions 7.3.a. through 7.3.e.;
On page eighteen, section ten, subsection 10.1.d.1, line
eleven, following the numeral "6", by inserting the word "months";
On page twenty-three, subsection 12.2., by striking out
"12.2.a." and by redesignating paragraphs 12.2.a.1. through
12.2.a.10. as subdivisions 12.2.a. through 12.2.j.;
On pages twenty-six and twenty-seven, subsection 16.1., by
striking out "16.1.a." and by redesignating paragraphs 16.1.a.1.
through 16.1.a.6. as subdivisions 16.1.a. through 16.1.f.;
On page twenty-seven, subsection 16.2., by striking out
"16.2.a." and by redesignating paragraphs 16.2.a.1. through
16.2.a.7. as subdivisions 16.2.a. through 16.2.g.;
On page twenty-eight, subsection 17.1., by striking out
"17.1.a." and by redesignating paragraphs 17.1.a.1. through
17.1.a.7. as subdivisions 17.1.a. through 17.1.d.;
On pages twenty-eight and twenty-nine, subsection 17.2., by
striking out "17.2.a." and by redesignating paragraphs 17.2.a.1.
through 17.2.a.6. as subdivisions 17.2.a. through 17.2.f.;
And,
On page thirty, section twenty, by striking out "20.1."
(f) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article two-b, chapter forty-nine of
this code, modified by the Division of Human Services to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-second day of January,
two thousand seven, relating to the Division of Human Services
(informal and relative family child care home registration
requirements, 78 CSR 20) is authorized with the following
amendments:
On pages nine and ten, subsection 7.4., by striking out
"7.4.a." and by redesignating paragraphs 7.4.a.1. and 7.4.a.2. as subdivisions 7.4.a. and 7.4.b.;
On page ten, subsection 7.5., by striking out "7.5.a." and by
redesignating paragraphs 7.5.a.1. and 7.5.a.2 as subdivisions
7.5.a. and 7.5.b.;
On page fourteen, section twelve, by striking out "12.1.
General Transportation.", by redesignating subdivisions 12.1.a. and
12.1.b. as subsections 12.1. and 12.2. and by redesignating
paragraphs 12.1.a.1. through 12.1.a.3. as subdivisions 12.1.a.
through 12.1.c.;
And,
On page seventeen, section seventeen, by striking out "17.1."
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 278, as
amended by the House of Delegates, was then put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
Senate Bill No. 278 pass?"
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Hall, Helmick, Hunter, Kessler, Love, McCabe, Minard,
Oliverio, Plymale, Prezioso, Sprouse, Sypolt, Unger, Wells, White
and Tomblin (Mr. President)--27.
The nays were: Bowman, Guills, Jenkins, McKenzie, Stollings
and Yoder--6.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 278) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Hall, Helmick, Hunter, Kessler, Love, McCabe, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Sypolt, Unger, Wells, White and Tomblin
(Mr. President)--27.
The nays were: Bowman, Guills, Jenkins, McKenzie, Stollings
and Yoder--6.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 278) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Thereafter, at the request of Senator McKenzie, and by
unanimous consent, the remarks by Senator Jenkins regarding the
passage of Engrossed Committee Substitute for Senate Bill No. 278
were ordered printed in the Appendix to the Journal.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 381, Relating to insurance fraud.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4. GENERAL PROVISIONS.
§33-4-8. General penalty.
In addition to the refusal to renew, suspension or revocation
of a license, or penalty in lieu of the foregoing, because of
violation of any provision of this chapter, it is a misdemeanor for
any person to violate any provision of this chapter and any unless
the violation is declared to be a felony by this chapter or other
law of this state. Unless another penalty is provided in this
chapter or by the laws of this state, every person convicted of a
misdemeanor for the violation of any provision of this chapter
shall be punished by a fine of fined not more than one thousand
dollars or by imprisonment for confined in jail not more than six
months, or by both such fine fined and imprisonment confined.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-8. Creation of insurance fraud unit; purpose; duties;
personnel qualifications.
(a) There is established the West Virginia Insurance Fraud
Unit within the office of the Insurance Commissioner of West
Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit who shall be qualified by
training and experience in the areas of detection, investigation or
prosecution of fraud within and against the insurance industry to
perform the duties of their positions. The director of the fraud
unit is a full-time position and shall be appointed by the
commissioner and serve at his or her will and pleasure. The
commissioner shall provide office space, equipment, supplies,
clerical and other staff that is necessary for the unit to carry
out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the
unit has cause to believe violations of any of the following
provisions of this code relating to the business of insurance have
been or are being committed: This chapter; chapter twenty-three of
this code; article three, chapter sixty-one of this code; and
section five, article four of said chapter. Notwithstanding any
provision of this code to the contrary, the fraud unit may, with
the agreement of the Director of the Public Employees Insurance
Agency, conduct investigations related to possible fraud under
article sixteen, chapter five of this code.
(2) Review reports or complaints of alleged fraud related to
the business of insurance activities from federal, state and local
law-enforcement and regulatory agencies, persons engaged in the
business of insurance and the general public to determine whether
the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the business of insurance and undertake
independent studies to determine the extent of fraudulent insurance
acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this
article and to employ legal counsel, investigators, auditors and
clerical support personnel and other personnel as the commissioner
determines necessary from time to time to accomplish the purposes
of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in
criminal matters;
(4) Share records and evidence with federal, state or local
law-enforcement or regulatory agencies, and enter into interagency
agreements. For purposes of carrying out investigations under this
article, the unit shall be deemed a criminal justice agency under
all federal and state laws and regulations and as such shall have
access to any information that is available to other criminal
justice agencies concerning violations of the insurance laws of
West Virginia or related criminal laws;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the
information the insurance fraud unit seeks to obtain is located
outside this state, the person from whom the information is sought
may make the information available to the insurance fraud unit to
examine at the place where the information is located. The insurance fraud unit may designate representatives, including
officials of the state in which the matter is located, to inspect
the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials
of other states;
(7) The insurance fraud unit may initiate investigations and
participate in the development of and, if necessary, the
prosecution of any health care provider, including a provider of
rehabilitation services, suspected of fraudulent activity related
to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall
be permitted to operate vehicles owned or leased for the state
displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the commissioner may
carry firearms in the course of their official duties after meeting
specialized qualifications established by the Governor's Committee
on Crime, Delinquency and Correction, which shall include the
successful completion of handgun training provided to
law-enforcement officers by the West Virginia State Police:
Provided, That nothing in this subsection shall be construed to
include any person designated by the commissioner as a
law-enforcement officer as that term is defined by the provisions
of section one, article twenty-nine, chapter thirty of this code;
and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter six of this code and the
investigations conducted by the insurance fraud unit and the
materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code.
(d) The insurance fraud unit shall perform other duties as may
be assigned to it by the commissioner.
§33-41-8b. Fraud investigators may present complaint directly to
magistrate.
Notwithstanding any other provision of this code to the
contrary, any person authorized under this article to initiate and
conduct investigations may submit complaints directly to a
magistrate after review and approval by the prosecuting attorney,
if the complaint is related to the business of insurance and may be
prosecuted as a criminal violation under this chapter; chapter
twenty-three of this code; article three, chapter sixty-one of this
code; or section five, article four of chapter sixty-one of this
code.
The complaint shall be in the form of a written statement of
the essential facts constituting the offense charged. The
complaint shall be presented to and sworn before a magistrate in
the county where the offense is alleged to have occurred.
If it appears from the complaint, or from an affidavit or
affidavits filed with the complaint, that there is probable cause
to believe that an offense has been committed and that the
defendant committed it, a warrant for the arrest of the defendant shall be issued to any officer authorized by law to arrest persons
charged with offenses against the state.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to
defraud submits a materially false statement in support of a claim
for insurance benefits or payment pursuant to a policy of insurance
or who conspires to do so is guilty of a crime and is subject to
the penalties set forth in the provisions of this section.
(b) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought exceeds is
one thousand dollars or more in value is guilty of a felony and,
upon conviction thereof, shall be confined imprisoned in a
correctional facility for not less than one nor more than ten
years, fined not more than ten thousand dollars, or both or in the
discretion of the circuit court confined in a county or regional
jail for not more than one year and so fined not more than ten
thousand dollars, or both.
(c) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought is less
than one thousand dollars or less in value is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for not more than one year, fined not more
than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is
subject to the restitution provisions of article eleven-a, chapter
sixty-one of this code.
(e) In addition to the foregoing provisions, the offenses
enumerated in sections twenty-four-e through twenty-four-h,
inclusive, article three, chapter sixty-one of this code are
applicable to matters concerning workers' compensation insurance.
(f) The circuit court may award to the unit or other
law-enforcement agency investigating a violation of this section or
other criminal offense related to the business of insurance its
cost of investigation.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 381, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 381) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 386, Exempting public
disclosure of specific public utility plant engineering plans.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. PUBLIC RECORDS.
§29B-1-4. Exemptions.
(a) The following categories of information are specifically
exempt from disclosure under the provisions of this article:
(1) Trade secrets, as used in this section, which may include,
but are not limited to, any formula, plan pattern, process, tool,
mechanism, compound, procedure, production data or compilation of
information which is not patented which is known only to certain
individuals within a commercial concern who are using it to
fabricate, produce or compound an article or trade or a service or
to locate minerals or other substances, having commercial value,
and which gives its users an opportunity to obtain business
advantage over competitors;
(2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof
would constitute an unreasonable invasion of privacy, unless the
public interest by clear and convincing evidence requires
disclosure in the particular instance: Provided, That nothing in
this article shall be construed as precluding an individual from
inspecting or copying his or her own personal, medical or similar
file;
(3) Test questions, scoring keys and other examination data
used to administer a licensing examination, examination for
employment or academic examination;
(4) Records of law-enforcement agencies that deal with the
detection and investigation of crime and the internal records and
notations of such law-enforcement agencies which are maintained for
internal use in matters relating to law enforcement;
(5) Information specifically exempted from disclosure by
statute;
(6) Records, archives, documents or manuscripts describing the
location of undeveloped historic, prehistoric, archaeological,
paleontological and battlefield sites or constituting gifts to any
public body upon which the donor has attached restrictions on usage
or the handling of which could irreparably damage such record,
archive, document or manuscript;
(7) Information contained in or related to examination,
operating or condition reports prepared by, or on behalf of, or for
the use of any agency responsible for the regulation or supervision
of financial institutions, except those reports which are by law required to be published in newspapers;
(8) Internal memoranda or letters received or prepared by any
public body;
(9) Records assembled, prepared or maintained to prevent,
mitigate or respond to terrorist acts or the threat of terrorist
acts, the public disclosure of which threaten the public safety or
the public health;
(10) Those portions of records containing specific or unique
vulnerability assessments or specific or unique response plans,
data, databases and inventories of goods or materials collected or
assembled to respond to terrorist acts; and communication codes or
deployment plans of law-enforcement or emergency response
personnel;
(11) Specific intelligence information and specific
investigative records dealing with terrorist acts or the threat of
a terrorist act shared by and between federal and international
law-enforcement agencies, state and local law enforcement and other
agencies within the Department of Military Affairs and Public
Safety;
(12) National security records classified under federal
executive order and not subject to public disclosure under federal
law that are shared by federal agencies and other records related
to national security briefings to assist state and local government
with domestic preparedness for acts of terrorism;
(13) Computing, telecommunications and network security
records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a
terrorist act;
(14) Security or disaster recovery plans, risk assessments,
tests or the results of those tests;
(15) Architectural or infrastructure designs, maps or other
records that show the location or layout of the facilities where
computing, telecommunications or network infrastructure used to
plan against or respond to terrorism are located or planned to be
located; and
(16) Codes for facility security systems; or codes for secure
applications for such facilities referred to in subdivision (15),
subsection (a) of this section;
(17) Specific engineering plans and descriptions of existing
public utility plants and equipment; and
(18) Customer proprietary network information of other
telecommunications carriers, equipment manufacturers and individual
customers, consistent with 47 U. S. C. §222.
(b) As used in subdivisions (9) through (16), inclusive,
subsection (a) of this section, the term "terrorist act" means an
act that is likely to result in serious bodily injury or damage to
property or the environment and is intended to:
(1) Intimidate or coerce the civilian population;
(2) Influence the policy of a branch or level of government by
intimidation or coercion;
(3) Affect the conduct of a branch or level of government by
intimidation or coercion; or
(4) Retaliate against a branch or level of government for a
policy or conduct of the government.
(c) Nothing in the provisions of subdivisions (9) through
(16), inclusive, subsection (a) of this section should be construed
to make subject to the provisions of this chapter any evidence of
an immediate threat to public health or safety unrelated to a
terrorist act or the threat thereof which comes to the attention of
a public entity in the course of conducting a vulnerability
assessment response or similar activity.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 386--A Bill to amend and
reenact §29B-1-4 of the Code of West Virginia, 1931, as amended,
relating to exempting from public disclosure specific engineering
plans of existing public utility plants and equipment; and
exempting customer proprietary network information from public
disclosure of information, consistent with federal law.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 386, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 386) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 388, Relating to medical support
provisions in child support orders.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section one hundred one, line sixty-five, by
striking out the words "45-mile radius or with a 45-minute drive"
and inserting in lieu thereof the words "reasonable distance".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 388, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 388) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2007, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 393, Creating
Marketing and Communications Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-1a. Marketing and Communications Office.
(a) There is hereby created in the Department of Commerce the
Marketing and Communications Office. The office is created to
provide marketing and communications goods and services to other
state agencies, departments, units of state or local government or
other entity or person.
(b) The office is authorized to charge for goods and services
it provides to other state agencies. The Secretary of the
Department of Commerce shall approve a fee schedule determining the
amounts that may be charged for goods and services provided by the
office to other state agencies.
(c) All moneys collected shall be deposited in a special
account in the State Treasury to be known as the "Department of
Commerce Marketing and Communications Operating Fund".
Expenditures from the fund shall be for the operation of the office
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 two, chapter eleven-b of this code:
Provided, That for the fiscal year ending the thirtieth day of
June, two thousand eight expenditures are authorized from
collections and shall be expended at the discretion of the
Secretary of the Department of Commerce rather than pursuant to
appropriation by the Legislature.
(d) Any balance remaining at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the
fund for expenditures in accordance with the purposes set forth in
this section.
(e) The Department of Commerce shall develop and maintain a
system of annual or more frequent performance measures useful in
gauging the efficiency and effectiveness of the office's marketing
and communications activities. The measures shall also reflect the
office's efficiency and effectiveness with respect to commercially
available marketing and communications services and any private
sector benchmarks which might be identified or created. For the
purposes of this section, "performance measures" means income,
output, quality, self-sufficiency and outcome metrics.
(f) Beginning on the first day of January, two thousand eight,
and annually every year thereafter, the Secretary of the Department
of Commerce shall report to the Joint Committee on Government and
Finance, the Joint Standing Committee on Finance and the Joint
Commission on Economic Development on the performance of the
office. This report is to include a statement of the performance
measurements for the office developed by the Secretary of the
Department of Commerce and an analysis of the office's performance.
(g) Pursuant to the provisions of article ten, chapter four of
this code, the Marketing and Communications Office shall continue
to exist until the first day of July, two thousand ten, unless
sooner terminated, continued or reestablished.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 393--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §5B-1-1a, relating to the
Marketing and Communications Office; creating the Marketing and
Communications Office in the Department of Commerce; authorizing
the office to provide marketing and communications goods and
services to other state agencies, departments, units of state or
local government or other entity or person; authorizing the
assessment of fees; setting fees; creating a special revenue
account; providing for expenditure of funds; requiring certain
reports; and providing sunset provisions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 393, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 393) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 393) takes effect July 1,
2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 396, Exempting site-specific data on
certain rare plant or animal species from disclosure.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-29. Conservation of species and request for public records.
(a) The director may exempt from disclosure under the Freedom
of Information Act, article one, chapter twenty-nine-b of this
code, any record concerning the site-specific location of an animal
species protected under the Endangered Species Act of 1973, 7 U. S.
C. §136, a plant protected under the Plant Variety Protection Act,
7 U. S. C. §2321:2583 and any plant or animal species native to
West Virginia determined by the director to be sensitive and in
need of conservation to maintain viability or existence.
(b) The director may not deny the release of records under
subsection (a) of this section if requested:
(1) By the owner of the land upon which the resource is
located;
(2) By an entity which can take the land through the right of
eminent domain; or
(3) For scientific purposes which include but are not limited
to conservation and education, by a person or entity that
demonstrates to the director's satisfaction that the request for
information is necessary, will not cause harm to the plant or
animal species, and that the person or entity will use the
information only for the limited purpose which is the basis for the request of information. The director retains the right to provide
any such data in a form which in his or her opinion, is of
sufficient resolution to satisfy that request and is not obligated
to provide exact coordinate data.
(c) Persons or entities receiving records under this
subsection may not release the information to the public or release
the information to another entity for commercial purposes.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 396--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §20-2-29, relating to authorizing the Director of the
Division of Natural Resources to exempt site-specific data on
certain rare plant or animal species and their habitats from
disclosure under the Freedom of Information Act; providing
exceptions thereto; and placing limitations on the use of released
information.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 396, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 396) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 465,
Establishing Dam Safety Rehabilitation Revolving Fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 550, Eliminating bond requirement for
person authorized to perform marriages.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 557, Relating to judicial review of
juvenile proceedings.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 559, Authorizing Insurance
Commissioner promulgate legislative rules related to military personnel insurance.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 592, Making supplemental appropriation to
Interoperable Radio Project.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 593, Making supplemental appropriation to
Board of Pharmacy.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 611, Relating to Division of Natural
Resources' long-term contracts with third parties.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 643, Relating to insurance
law violations' investigations.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 709, Authorizing circuit
courts grant custodial and noncustodial improvement periods to
certain juveniles.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 738, Requiring legislative
approval of proposed new or revised existing toll by Parkways
Authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section six-a, line one, by striking out the
words "Prior to" and inserting in lieu thereof the words "At least
sixty days prior to a vote on";
On pages two and three, section six-a, lines eight through
sixteen, by striking out all of subsection (b) and inserting in
lieu thereof a new subsection (b), to read as follows:
(b) Following the adoption of any new toll or a revision to an
existing toll on any parkways project, the parkways authority shall
report to the Joint Committee on Government and Finance a
supplement to the report required in subsection (a) of this section
detailing any changes to the information previously reported and
any information requested by the Joint Committee on Government and
Finance.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 738--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §17-16A-6a, relating to requiring certain
reports from the West Virginia Parkways, Economic Development and
Tourism Authority regarding a proposed toll or a toll revision to
the Joint Committee on Government and Finance.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 738) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 746, Requiring Director of Division of
Personnel report on centralized personnel system.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2007, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 747, Creating Municipal Home Rule Pilot
Program.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. PURPOSE AND SHORT TITLE; DEFINITIONS; GENERAL
PROVISIONS; CONSTRUCTION.
§8-1-5a. Pilot program to increase powers of municipal self
government.
(a) The Legislature finds and declares that:
(1) The future economic progress for the State of West
Virginia is directly related to the success of its municipalities
in that stronger municipalities will make for a stronger West
Virginia;
(2) Municipalities face numerous challenges managing their
budgets and delivering services required by federal or state law or
demanded by their constituents;
(3) Municipalities are sometimes restricted by state statutes,
policies, rules and responsibilities that prevent them from
carrying out their duties and responsibilities in a cost-effective,
efficient and timely manner; and
(4) Authorizing pilot municipalities and metro governments in
West Virginia to exercise broad-based home rule will allow the
Legislature the opportunity to evaluate the viability of allowing
municipalities to have broad-based state home rule to improve urban
and state development.
(b) It is the intent of the Legislature in enacting this
section to establish a framework for municipalities within which new ideas can be explored to see if they can or should be
implemented on a statewide basis.
(c) Effective the first day of July, two thousand seven, there
is hereby created a pilot program to be known as the Municipal Home
Rule Pilot Program authorizing five selected Class I, Class II
and/or Class III municipalities and/or metro governments the
authority to enact any ordinances, acts, resolutions, rules and
regulations not contrary to the constitutions of the United States
or West Virginia, federal law or chapters sixty-a, sixty-one and
sixty-two of this code.
(d) To be eligible to participate in the Municipal Home Rule
Pilot Program the applicant shall:
(1) Be a Class I, Class II and/or Class III municipality
and/or metro government: Provided, That a municipality considering
consolidation or establishing a metro government shall have no more
than two years from the date it is selected for the pilot program
to complete its consolidation or metro government process or its
participation in the pilot program will terminate at the end of the
two-year period; and
(2) Have a written plan stating in detail the following:
(A) The specific laws, policies, rules or regulations which
prevent the municipality from carrying out its duties in the most
cost-efficient, effective and timely manner;
(B) The problems created by the laws, policies, rules or
regulations; and
(C) The proposed solutions to the problems, including all proposed changes to ordinances, acts, resolutions, rules and
regulations.
(e) Effective the first day of July, two thousand seven, there
is hereby created a Municipal Home Rule Board consisting of the
following seven members:
(1) The Governor, or a designee, who shall serve as chair;
(2) The Executive Director of the West Virginia Development
Office, or a designee;
(3) The chair of the Senate Committee on Government
Organization, or a designee;
(4) The chair of the House of Delegates Committee on
Government Organization, or a designee; and
(5) Three members representing the business community as
follows:
(A) One member shall be a representative of a local chamber of
commerce, selected by the West Virginia State Chamber of Commerce,
and shall be from the first congressional district;
(B) One member shall be a representative of the Business and
Industry Council, and shall be from the second congressional
district; and
(C) One member shall be a representative of Vision Shared,
Inc., and shall be from the third congressional district.
(f) The board has the powers necessary to implement the
provisions of this section, including the following:
(1) Reviewing, evaluating and making recommendations to the
proposed plans submitted by eligible municipalities and/or metro governments;
(2) Consulting with state agencies affected by the proposed
plans;
(3) Recommending for approval the selected municipalities
and/or metro governments to participate in the pilot program;
(4) Reviewing and recommending for approval plans of
recommended pilot program participants; and
(5) Authorizing amendments to approved plans.
(g) On or before the first day of January, two thousand eight,
an eligible municipality and/or metro government wanting to
participate in the pilot program shall submit a written plan as
described in subdivision (2), subsection (d) of this section to the
board.
(h) On or before the first day of June, two thousand eight,
the board shall recommend for approval by a majority vote of the
board, at least one, but not more than five municipalities and/or
metro governments to participate in the pilot program.
(i) Upon selection of municipalities and/or metro government,
all affected citizens of the selected area shall have the right to
participate in an election to approve or reject participation in
the home rule pilot program. This election may be held at either
a primary, general or special election. A notice of all conclusive
facts of such pilot program are to be advertised in a newspaper of
general circulation in the selected area. This notice shall run
for no less than ten days.
(j) The pilot municipalities and/or metro governments selected to participate in the pilot program shall have the following
powers:
(1) The authority to pass any ordinances, acts, resolutions,
rules and regulations not contrary to the constitutions of the
United States or West Virginia, federal law or chapters sixty-a,
sixty-one and sixty-two of this code as specified in their written
and approved plans; and
(2) Any other powers necessary to implement the provisions of
this section.
(k) The pilot municipalities and/or metro governments selected
to participate in the pilot program shall have the following
powers:
(1) The authority to pass any ordinances, acts, resolutions,
rules and regulations not contrary to the constitutions of the
United States or West Virginia, federal law or chapters sixty-a,
sixty-one and sixty-two of this code as specified in their written
and approved plans; and
(2) Any other powers necessary to implement the provisions of
this section.
(k) Before the first day of July, two thousand twelve, the
Performance Evaluation and Research Division under the Legislative
Auditor shall conduct a performance review on the pilot program and
the participating municipalities and/or metro governments. The
review shall include the following:
(1) An evaluation of the effectiveness of expanded home rule
on the participating municipalities and/or metro governments;
(2) A recommendation as to whether the expanded home rule
should be continued, reduced, expanded or terminated;
(3) A recommendation as to whether any legislation is
necessary; and
(4) Any other issues considered relevant.
(l) On or before the first day of January, two thousand
thirteen, the Performance Evaluation and Research Division under
the Legislative Auditor shall report to the Joint Committee on
Government Organization the findings of the performance review.
(m) The pilot program terminates on the first day of July, two
thousand thirteen.
(n) No ordinances, acts, resolutions, rules or regulations may
be enacted by a municipality or metro government after the first
day of July, two thousand thirteen, pursuant to the provisions of
this section, unless otherwise authorized by the Legislature.
§8-1-7. Construction of powers and authority granted.
(a) The enumeration of powers and authority granted in this
chapter shall not operate to exclude the exercise of other powers
and authority fairly incidental thereto or reasonably implied and
within the purposes of this chapter and the or in accordance with
the provisions of the Municipal Home Rule Amendment to the
Constitution of this state, the powers and authority granted by
such Constitution, other provisions of this code and any existing
charter. The provisions of this chapter shall be given full effect
without regard to the common law rule of strict construction and
particularly when the powers and authority are exercised by charter provisions framed and adopted or adopted by revision of a charter
as a whole or adopted by charter amendment under the provisions of
this chapter.
(b) Any charter provision framed and adopted or adopted by
revision of a charter as a whole or adopted by charter amendment
under the provisions of former chapter eight-a of this code or
under the provisions of this chapter which is beyond the power and
authority of a city municipality and any ordinance provision which
is beyond the power and authority of a municipality shall be of no
force and effect.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. S. B. No. 747) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 757, Extending time for Smithers town
council to meet as levying body.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Com. Sub. for Senate Concurrent Resolution No. 15, Requesting
Joint Committee on Government and Finance study effects of coal
slurry.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 31, Requesting Department of
Administration name Capitol Complex parking building "Oshel B.
Craigo Parking Building".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 52, Requesting Joint
Committee on Government and Finance study feasibility of
constructing covered promenades and handicapped ramps on Capitol
second floor outdoor walkways.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 55, Requesting Joint
Committee on Government and Finance study authorizing
municipalities means to satisfy liens.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 63, Requesting Joint
Committee on Government and Finance study regulating Professional
Employer Organization industry.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2714, Revising requirements
for parking areas designated for use by persons with mobility
impairments.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2717, Enacting a retirement
system for Emergency Medical Services Personnel.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2775, Exempting new
residents from payment of the privilege tax upon a showing that the
applicant was not a resident of this state at the time the vehicle
was purchased.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2808, Increasing the fee for
issuance of one-trip permits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2931, Providing for payment
of tuition and fees for members of the West Virginia National Guard
enrolled in graduate study.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 3223, West Virginia Health
Care Authority Revolving Loan and Grant Fund.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 178, Allowing counties to
increase hotel occupancy tax.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Campbell, Yost and Carmichael.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Bowman, Chafin and Yoder.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 185, Creating Tobacco
Settlement Finance Authority.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Campbell, Doyle and Anderson.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Helmick, Fanning and Sprouse.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 196, Relating to juvenile
custody.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 511, Repealing code section relating to
Hatfield-McCoy Regional Recreation Authority insurance policies.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 524, Requiring proof of
lawful disposal of solid waste.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2955, Continuing a flat-rate
excise tax on motor fuel at $.205.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Kominar, Barker and Evans.
On motion of Senator Chafin, the Senate recessed until 2 p.m.
Upon expiration of the recess, the Senate reconvened and
resumed business under the third order.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2051, Including lasers as a
method of proving the speed of vehicles.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Hrutkay, Longstreth and Schadler.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2498, Relating to sexual
offenses involving children.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Minard, Wells and McKenzie.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 204, Assessing cost of petit juries in
magistrate court.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. PETIT JURIES.
§52-1-17. Reimbursement of jurors.
(a) A juror shall be paid mileage, at the rate set by the
commissioner of finance and Secretary of the Department of
Administration for state employees, for travel expenses to and from
the juror's residence to the place of holding court and return
courthouse or other place where the court is convened and shall be
reimbursed for other expenses incurred as a result of his or her
required attendance at sessions of the court at a rate of between fifteen and forty dollars not less than fifteen dollars nor more
than forty dollars, set at the discretion of the circuit court or
the chief judge thereof of the circuit court, for each day of
required attendance. Such The reimbursement shall be based on
vouchers submitted to the sheriff. Such mileage and reimbursement
and shall be paid out of the State Treasury.
(b) When a jury in any case is placed in the custody of the
sheriff, he or she shall provide for and furnish the jury necessary
with
meals and lodging while they are in the sheriff's custody at
a reasonable cost to be determined by an order of the court; and
court. The costs of the meals and lodging shall be paid for out of
the State Treasury.
(c) Anytime a panel of prospective jurors has been required to
report to court for the selection of a petit jury in any scheduled
matter, the court shall, by specific provision in a court order,
assess a jury cost. In both magistrate and circuit court cases the
jury cost shall be the actual cost of the jurors' service: and in
magistrate court cases Provided, That the actual cost of a
magistrate jury can only be assessed where the jury request or
demand occurs on or after the first day of July, two thousand
seven. For any magistrate court case in which the jury request or
demand occurred prior to the first day of July, two thousand seven,
the jury cost assessed shall be two hundred dollars. Such The jury
costs shall be assessed against the parties as follows:
(1) In every criminal case, against the defendant upon
conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated
against both parties, at the court's discretion, if the parties
settle the case or trial is to the bench elect for a bench trial;
and
(3) In the discretion of the court, and only when fairness and
justice so require, a circuit court or magistrate court may forego
assessment of the jury fee, but shall set out the reasons therefor
for waiving the fee in a written order: Provided, That a waiver of
the assessment of a jury fee in a case tried before a jury in
magistrate court may only be permitted after the circuit court, or
the chief judge thereof of the circuit court, has reviewed the
reasons set forth in the order by the magistrate and has approved
such the waiver.
(d) (1) The circuit or magistrate court clerk shall by the
tenth day of the month following the month of collection remit to
the State Treasurer for deposit as described in subdivision (2) of
this subsection all jury costs collected and the clerk and the
clerk's surety are liable therefor for the collection on the
clerk's official bond as for other money coming into the clerk's
hands by virtue of the clerk's office. When the amount of the jury
costs collected in a magistrate court case exceeds two hundred
dollars, the magistrate court clerk shall separately delineate the
portion of the collected jury costs which exceeds two hundred
dollars.
(2) The jury costs described in subdivision (1) of this
subsection shall upon receipt by the State Treasurer be deposited as follows:
(A) All jury costs collected in a magistrate court case which
exceed two hundred dollars shall be deposited in the state's
General Revenue Fund; and
(B) The remaining balance of the collected jury costs shall be
deposited as follows:
(i) One-half shall be deposited into the Parent Education and
Mediation Fund created in section six hundred four, article nine,
chapter forty-eight of this code; and
(B) (ii) One-half shall be deposited into the Domestic
Violence Legal Services Fund created in section six hundred three,
article twenty-six, chapter forty-eight of this code.
(e) The sheriff shall pay into the State Treasury all jury
costs received from the court clerks and the sheriff shall be held
to account in the sheriff's annual settlement for all such the
moneys.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 204, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 204) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 361, Establishing work
programs for qualified inmates.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section thirty, line sixteen, after the word
"therein." by inserting the following: A qualified inmate does not
include an inmate convicted of a sexual offense or a violent
felony.;
And,
On page four, section thirty, line forty-three, after the
word: "incarceration" by inserting the words "to be credited to the
agency billed for that incarceration".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 361, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 361) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 400,
Appointing additional circuit court judges.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-1. Judicial circuits; terms of office; legislative findings
and declarations; elections; terms of court.
(a) The state shall be divided into the following judicial
circuits with the following number of judges:
The counties of Brooke, Hancock and Ohio shall constitute the
first circuit and shall have four judges; the counties of Marshall,
Tyler and Wetzel shall constitute the second circuit and shall have
two judges; the counties of Doddridge, Pleasants and Ritchie shall
constitute the third circuit and shall have one judge; the counties
of Wood and Wirt shall constitute the fourth circuit and shall have
three judges; the counties of Calhoun, Jackson, Mason and Roane
shall constitute the fifth circuit and shall have two judges; the
county of Cabell shall constitute the sixth circuit and shall have
four judges; the county of Logan shall constitute the seventh
circuit and shall have two judges; the county of McDowell shall
constitute the eighth circuit and shall have two judges; the county
of Mercer shall constitute the ninth circuit and shall have two
judges: Provided, That effective the first day of January, two
thousand nine, said circuit shall have three judges; the county of
Raleigh shall constitute the tenth circuit and shall have three
judges; the counties of Greenbrier and Pocahontas shall constitute
the eleventh circuit and shall have two judges; the county of
Fayette shall constitute the twelfth circuit and shall have two judges; the county of Kanawha shall constitute the thirteenth
circuit and shall have seven judges: Provided, however, That
effective the first day of January, two thousand nine, said circuit
shall have eight judges; the counties of Braxton, Clay, Gilmer and
Webster shall constitute the fourteenth circuit and shall have two
judges; the county of Harrison shall constitute the fifteenth
circuit and shall have three judges; the county of Marion shall
constitute the sixteenth circuit and shall have two judges; the
county of Monongalia shall constitute the seventeenth circuit and
shall have two judges: Provided further, That effective the first
day of January, two thousand nine, said circuit shall have three
judges; the county of Preston shall constitute the eighteenth
circuit and shall have one judge; the counties of Barbour and
Taylor shall constitute the nineteenth circuit and shall have one
judge; the county of Randolph shall constitute the twentieth
circuit and shall have one judge; the counties of Grant, Mineral
and Tucker shall constitute the twenty-first circuit and shall have
two judges; the counties of Hampshire, Hardy and Pendleton shall
constitute the twenty-second circuit and shall have one judge: And
provided further, That effective the first day of January, two
thousand nine, said circuit shall have two judges; the counties of
Berkeley, Jefferson and Morgan shall constitute the twenty-third
circuit and shall have four five judges; Provided, That effective
the first day of August, two thousand six, said circuit shall have
five judges; the county of Wayne shall constitute the twenty-fourth
circuit and shall have one judge: And provided further, That effective the first day of January, two thousand nine, said circuit
shall have two judges; the counties of Lincoln and Boone shall
constitute the twenty-fifth circuit and shall have two judges; the
counties of Lewis and Upshur shall constitute the twenty-sixth
circuit and shall have one judge; the county of Wyoming shall
constitute the twenty-seventh circuit and shall have one judge; the
county of Nicholas shall constitute the twenty-eighth circuit and
shall have one judge; the county of Putnam shall constitute the
twenty-ninth circuit and shall have two judges; the county of Mingo
shall constitute the thirtieth circuit and shall have one judge:
And provided further, That effective the first day of January, two
thousand nine, said circuit shall have two judges; and the counties
of Monroe and Summers shall constitute the thirty-first circuit and
shall have one judge. Provided, however, That The Kanawha County
circuit court shall be a court of concurrent jurisdiction with each
single judge circuit where the sitting judge in such single judge
circuit is unavailable by reason of sickness, vacation or other
reason.
(b) Any judge in office on the effective date of the
reenactment of this section shall continue as a judge of the
circuit as constituted under prior enactments of this section,
unless sooner removed or retired as provided by law, until the
thirty-first day of December, two thousand two thousand eight. Any
additional judicial positions which have been added to individual
circuits, effective the first day of January, two thousand nine,
shall be placed on ballot for the primary and general elections conducted in the year two thousand eight.
(c) The term of office of all circuit court judges shall be
for eight years. The term of office for all circuit court judges
elected during the general election conducted in the year two
thousand shall commence on the first day of January, two thousand
one, and end on the thirty-first day of December, two thousand
eight. The term of office for all circuit court judges elected
during the general election conducted in the year two thousand
eight shall commence on the first day of January, two thousand
nine, and end on the thirty-first day of December, two thousand
sixteen.
(d) Beginning with the primary and general elections to be
conducted in the year one thousand nine hundred ninety-two, in all
judicial circuits having two or more judges there shall be, for
election purposes, numbered divisions corresponding to the number
of circuit judges in each circuit. Each judge shall be elected at
large from the entire circuit. In each numbered division of a
judicial circuit, the candidates for nomination or election shall
be voted upon and the votes cast for the candidates in each
division shall be tallied separately from the votes cast for
candidates in other numbered divisions within the circuit. The
candidate receiving the highest number of the votes cast within a
numbered division shall be nominated or elected, as the case may
be: Provided, That beginning with the primary and general
elections to be conducted in the year two thousand, judges serving
a judicial circuit comprised of four or more counties with two or more judges shall not be residents of the same county.
(e) The Supreme Court of Appeals shall, by rule, establish the
terms of court of circuit judges.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 400--A Bill
to amend and reenact
§51-2-1 of the Code of West Virginia, 1931, as
amended, relating to providing for six additional circuit court
judges.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 400, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster,
Guills, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells,
White and Tomblin (Mr. President)--27.
The nays were: Facemyer, Green, Hall, McCabe, Unger and
Yoder--6.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 400) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
In accordance with rule number forty-four of the Rules of the
Senate, Senator McCabe will file a written vote explanation as to
his vote on the passage of Engrossed Committee Substitute for
Committee Substitute for Senate Bill No. 400, which vote
explanation will be printed in the Appendix to the Journal.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 428, Establishing consumer
identity theft protections.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page eighteen, section one hundred four, line five, after
the word "days" by inserting the words "following discovery or
actual knowledge";
And,
On page nineteen, section one hundred four, line twenty-seven,
after the word "days" by inserting the words "following discovery
or actual knowledge".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 428, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 428) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 518, Conforming WV Works
Program with federal law requirements.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page fifteen, section eight, by striking out all of lines
thirty-four through thirty-six and inserting in lieu thereof the
following:
(4) Minor parents who are not head of household (spouses of
the head of household); and
(5)Grandparents and other nonparental caretakers.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 518, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 518) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 526, Relating to political activities of
deputy sheriffs and municipal police officers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after
the enacting section and
inserting in lieu thereof the following:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14. CIVIL SERVICE FOR DEPUTY SHERIFFS.
§7-14-15. Political activities of members prohibited; exceptions.
(a) On and after the effective date of this article, no A
deputy sheriff covered by the provisions of this article shall
engage in any political activity of any kind, character or nature
whatsoever, except to cast his vote at any election or shall act as
an election official in any municipal, county or state election.
may not:
(1) Solicit any assessment, subscription or contribution for
any political party, committee or candidate from any person who is
a member or employee of the county sheriff's department by which
they are employed;
(2) Use any official authority or influence, including, but
not limited to, the wearing by a deputy sheriff of his or her
uniform, for the purpose of interfering with or affecting the
nomination, election or defeat of any candidate or the passage or defeat of any ballot issue: Provided, That this subdivision shall
not be construed to prohibit any deputy sheriff from casting his or
her vote at any election while wearing his or her uniform;
(3) Coerce or command anyone to pay, lend or contribute
anything of value to a party, committee, organization, agency or
person for the nomination, election or defeat of a ballot issue; or
(4) Be a candidate for or hold any other public office in the
county in which he or she is employed: Provided, That any deputy
sheriff that is subject to the provisions of 15 U. S. C. §1501, et
seq., may not be a candidate for elective office.
(b) Other types of partisan or nonpartisan political
activities not inconsistent with the provisions of subsection (a)
of this section are permissible political activities for deputy
sheriffs.
(c) No person may be appointed or promoted to or demoted or
dismissed from any position held by a deputy sheriff or in any way
favored or discriminated against because of his or her engagement
in any political activities authorized by the provisions of this
section. Any elected or appointed official who violates the
provisions of this subsection is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by the penalties contained in
section twenty-six, article fifteen, chapter eight of this code.
(d) Any deputy sheriff violating the provisions of this
section shall have his appointment vacated and he shall be removed,
in accordance with the pertinent provisions of this section.
(b) (e) Any three residents of the county may file their written petition with the civil service commission thereof setting
out therein the grounds upon which a deputy sheriff of such county
should be removed for a violation of subsection (a) of this
section. Notice of the filing of such petition shall be given by
the commission to the accused deputy, which notice shall require
him to file a written answer to the charges set out in the petition
within thirty days of the date of such notice. The petition and
answer thereto, if any, shall be entered upon the records of the
civil service commission. If the answer is not filed within the
time stated, or any extension thereof for cause which in the
discretion of the civil service commission may be granted, an order
shall be entered by the commission declaring the appointment of the
deputy vacated. If such answer is filed within the time stated, or
any extension thereof for cause which in the discretion of the
civil service commission may be granted, the accused deputy may
demand within such period a public hearing on the charges, or the
civil service commission may, in its discretion and without demand
therefor, set a date and time for a public hearing on the charges,
which hearing shall be within thirty days of the filing of said
answer, subject, however, to any continuances which may in the
discretion of the civil service commission be granted. A written
record of all testimony taken at such hearing shall be kept and
preserved by the civil service commission, which record shall be
sealed and not be open to public inspection if no appeal be taken
from the action of the commission. The commission at the
conclusion of the hearing, or as soon thereafter as possible, shall enter an order sustaining, in whole or in part, the charges made,
or shall dismiss the charges as unfounded. In the event the
charges are sustained, in whole or in part, the order shall also
declare the appointment of such deputy to be vacated and thereupon
the sheriff shall immediately remove the deputy from his office and
from the payroll of the county. Notice of the action of the
commission shall be given by registered letter to the county court
and the sheriff. If the sheriff fails to immediately comply with
the order of the commission, he shall be punished for contempt,
upon application of the commission to the circuit court of the
county.
(c) (f) An appeal from the ruling of the commission may be had
in the same manner and within the same time as specified in section
seventeen of this article for an appeal from a ruling of a
commission after hearing held in accordance with the provisions of
said section.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS,
AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS
AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE
AND PARKING LOT OR PARKING BUILDING POLICE
OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE
DEPARTMENTS.
§8-14-19. Political activities of members prohibited; exceptions.
(a) No A member of any a paid police department of a Class I
or Class II city shall engage in any political activity of any kind, character or nature whatsoever, except to cast his vote at
any election, or shall act as an election official in any election,
municipal, county or state. may not:
(1) Solicit any assessment, subscription or contribution for
any political party, committee or candidate from any person who is
a member or employee of the municipality by which they are
employed;
(2) Use any official authority or influence, including, but
not limited to, the wearing by a municipal police officer of his or
her uniform, for the purpose of interfering with or affecting the
nomination, election or defeat of any candidate or the passage or
defeat of any ballot issue: Provided, That this subdivision shall
not be construed to prohibit any municipal police officer from
casting his or her vote at any election while wearing his or her
uniform;
(3) Coerce or command anyone to pay, lend or contribute
anything of value to a party, committee, organization, agency or
person for the nomination, election or defeat of a ballot issue; or
(4) Be a candidate for or hold any other public office in the
municipality in which he or she is employed: Provided, That any
municipal police officer that is subject to the provisions of 15 U.
S. C. §1501, et seq., may not be a candidate for elective office.
(b) Other types of partisan or nonpartisan political
activities not inconsistent with the provisions of subsection (a)
of this section are permissible political activities for municipal
police officers.
(c) No person may be appointed or promoted to or demoted or
dismissed from any position held by a municipal police officer or
in any way favored or discriminated against because of his or her
engagement in any political activities authorized by the provisions
of this section. Any elected or appointed official who violates
the provisions of this subsection is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by the penalties
contained in section twenty-six, article fifteen of this chapter.
(d) Any member of any such paid police department violating
the provisions of this section shall have his appointment vacated
and he shall be removed, in accordance with the pertinent
provisions of this section.
(b) (e) Any three residents of any such city may file their
written petition with the policemen's civil service commission
thereof setting out therein the grounds upon which a member of the
paid police department of such city should be removed for a
violation of subsection (a) of this section. Notice of the filing
of such petition shall be given by said commission to the accused
member, which notice shall require the said member to file a
written answer to the charges set out in the petition within thirty
days of the date of said notice. The said petition and answer
thereto, if any, shall be entered upon the records of the
commission. If such answer is not filed within the time stated, or
any extension thereof for cause which in the discretion of the
commission may be granted, an order shall be entered by the
commission declaring the appointment of said member vacated; if such answer is filed within the time stated, or any extension
thereof for cause which in the discretion of the commission may be
granted, the accused member may demand within such period a public
hearing on the charges, or the commission may, in its discretion
and without demand therefor, set a time for a public hearing on
said charges, which hearing shall be within thirty days of the
filing of said answer, subject, however, to any continuances which
may in the discretion of the commission be granted. A written
record of all testimony taken at such hearing shall be kept and
preserved by the commission, which record shall be sealed and not
be open to public inspection, if no appeal be taken from the action
of the commission. The commission at the conclusion of the
hearing, or as soon thereafter as possible, shall enter an order
sustaining, in whole or in part, the charges made, or shall dismiss
the charges as unfounded. In the event the charges are sustained,
in whole or in part, the order shall also declare the appointment
of said member to be vacated and thereupon the proper municipal
authorities shall immediately remove said member from the police
force and from the payroll of said city. Notice of the action of
the commission shall be given by registered letter to the mayor and
chief of police of the city; and for failure to immediately comply
with the order of the commission such officer or officers shall be
punished for contempt, upon application of the commission to the
circuit court of the county in which the city or the major portion
of the territory thereof is located.
(c) (f) An appeal from the ruling of the commission may be had in the same manner and within the same time as specified in section
twenty of this article for an appeal from a ruling of a commission
after hearing held in accordance with the provisions of said
section.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 526, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 526) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 529, Prohibiting requirement that sexual offense victims pay costs of forensic
examination.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 529--A Bill to amend and
reenact §61-8B-16 of the Code of West Virginia, 1931, as amended,
relating to forensic medical examinations; prohibiting any
requirement that an alleged victim of a sexual offense must pay for
the costs of a forensic medical examination, participate in the
criminal justice system or cooperate with law enforcement in order
to receive a forensic medical examination; eliminating certain
reimbursement; and clarifying that licensed medical facilities may
seek payment from the alleged victim or his or her insurer for
services rendered other than the forensic medical examination.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 529, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 529) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 606, Distributing
application for absentee voting by electronic mail.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting section and
inserting in lieu thereof the following:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-5. Voting an absentee ballot by mail; penalties.
(a) Upon oral or written request, the official designated to
supervise and conduct absentee voting shall provide to any voter of
the county, in person, by mail, by electronic mail or by facsimile
if the official has access to facsimile equipment, the appropriate application for voting absentee by mail as provided in this
article. The voter shall complete and sign the application in his
or her own handwriting or, if the voter is unable to complete the
application because of illiteracy or physical disability, the
person assisting the voter and witnessing the mark of the voter
shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by
mail is to be accepted when received by the official designated to
supervise and conduct absentee voting in person, by mail, by
electronic mail or by facsimile if the official has access to
facsimile equipment, within the following times:
(1) For persons eligible to vote an absentee ballot under the
provisions of subdivision (3), subsection (b), section one of this
article, relating to absent uniformed services and overseas voters,
not earlier than the first day of January of an election year, or
eighty-four days preceding the election, whichever is earlier, and
not later than the sixth day preceding the election, which
application is to, upon the voter's request, be accepted as an
application for the ballots for all elections in the calendar year;
and
(2) For all other persons eligible to vote an absentee ballot
by mail, not earlier than eighty-four days preceding the election
and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official
designated to supervise and conduct absentee voting shall determine
whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct
of his or her residence and, in a primary election, is qualified to
vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the
application to vote an absentee ballot by mail;
(4) The address to which the ballot is to be mailed is an
address outside the county if the voter is applying to vote by mail
under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or
(4) of said subsection;
(5) The applicant is not making his or her first vote after
having registered by postcard registration or, if the applicant is
making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an
absentee ballot by mail for the reason of being out of the county
during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct
absentee voting determines that the required conditions have been
met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places
indicated on the back of the official ballot. If the official
designated to supervise and conduct absentee voting determines the
required conditions have not been met, or has evidence that any of the information contained in the application is not true, the
official shall give notice to the voter that the voter's absentee
ballot will be challenged as provided in this article and shall
enter that challenge.
(e) (1) Within one day after the official designated to
supervise and conduct absentee voting has both the completed
application and the ballot, the official shall mail to the voter at
the address given on the application the following items as
required and as prescribed by the Secretary of State:
(1) (A) One of each type of official absentee ballot the voter
is eligible to vote, prepared according to law;
(2) (B) One envelope, unsealed, which may have no marks except
the designation "Absent Voter's Ballot Envelope No. 1" and printed
instructions to the voter;
(3) (C) One postage paid envelope, unsealed, designated
"Absent Voter's Ballot Envelope No. 2";
(4) (D) Instructions for voting absentee by mail;
(5) (E) For electronic systems, one punching tool for
perforating or a device for marking by electronically sensible pen
or ink, as may be appropriate;
(6) If a punching tool is to be utilized, one disposable
styrofoam block to be placed behind the ballot card for voting
purposes and to be discarded after use by the voter; and
(F) Notice that a list of write-in candidates is available
upon request; and
(7) (G) Any other supplies required for voting in the particular voting system.
(2) If the voter is an absent uniformed services voter or
overseas voter, as defined by 42 U. S. C. §1973, et seq., the
official designated to supervise and conduct absentee voting may
voluntarily upon request of the voter transmit the ballot to the
voter via facsimile. If the ballot is transmitted by facsimile
pursuant to this subdivision, the official designated to supervise
and conduct absentee voting shall also transmit via facsimile:
(A) A waiver of privacy form, to be promulgated by the
Secretary of State;
(B) Instructions for voting absentee utilizing the Federal
Voting Assistance Program Electronic Transmission System. For the
purposes of this subsection, the "Federal Voting Assistance Program
Electronic Transmission System" is the system established by the
Department of Defense for the explicit purpose of sending and
receiving absentee ballots by military and overseas United States
citizens;
(C) Notice that a list of write-in candidates is available
upon request.
The official designated to supervise and conduct absentee
voting is not required to mail to the voter the materials listed in
paragraphs (B), (C) and (E), subdivision (1) of this subsection.
(f) The voter shall mark the ballot alone: Provided, That the
voter may have assistance in voting according to the provisions of
section six of this article.
(1) After the voter has voted the ballot or ballots to be returned by mail, the voter shall:
(1) (A) Place the ballot or ballots in envelope no. 1 and seal
that envelope;
(2) (B) Place the sealed envelope no. 1 in envelope no. 2 and
seal that envelope;
(3) (C) Complete and sign the forms on envelope no. 2; and
(4) (D) Return that envelope to the official designated to
supervise and conduct absentee voting.
(2)
If the ballot was transmitted via facsimile as provided in
subdivision (2), subsection (e) of this section, the voter shall
return the ballot via facsimile to the designated facsimile number
of the Federal Voting Assistance Program Electronic Transmission
System, along with a signed privacy waiver form.
(g) Except as provided in subsection (h) of this section,
absentee ballots returned by United States mail or other express
shipping service are to be accepted if:
(1) The ballot is received by the official designated to
supervise and conduct absentee voting no later than the day after
the election; or
(2) The ballot bears a postmark of the United States Postal
Service dated no later than election day and the ballot is received
by the official designated to supervise and conduct absentee voting
no later than the hour at which the board of canvassers convenes to
begin the canvass.
(h) Absentee ballots received through the United States mail
from persons eligible to vote an absentee ballot under the provisions of subdivision (3), subsection (b), section one of this
article, relating to uniform services and overseas voters, are to
be accepted if the ballot is received by the official designated to
supervise and conduct absentee voting no later than the hour at
which the board of canvassers convenes to begin the canvass.
(i) Ballots transmitted via facsimile pursuant to subdivision
(2), subsection (f) of this section are to be accepted if the
ballot is received by the official designated to supervise and
conduct absentee voting no later than the close of polls on
election day: Provided, That the Secretary of State's office shall
enter into an agreement with the Federal Voting Assistance Program
of the United States Department of Defense to transmit the ballots
to the county clerks at a time when two individuals of opposite
political parties are available to process the received ballots.
(i) (j) Ballots received after the proper time which cannot be
accepted are to be placed unopened in an envelope marked for the
purpose and kept secure for twenty-two months following the
election, after which time they are to be destroyed without being
opened.
(j) (k) Absentee ballots which are hand delivered are to be
accepted if they are received by the official designated to
supervise and conduct absentee voting no later than the day
preceding the election: Provided, That no person may hand deliver
more than two absentee ballots in any election, and any person hand
delivering an absentee ballot is required to certify that he or she
has not examined or altered the ballot. Any person who makes a false certification violates the provisions of article nine of this
chapter and is subject to those provisions.
(k) (l) Upon receipt of the sealed envelope, the official
designated to supervise and conduct absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record
of persons applying for and voting an absentee ballot in person;
and
(4) Place the sealed envelope into a ballot box that is
secured by two locks with a key to one lock kept by the president
of the county commission and a key to the other lock kept by the
county clerk.
(m) Upon receipt of a ballot submitted via facsimile pursuant
to subdivision (2), subsection (f) of this section, the official
designated to supervise and conduct absentee voting shall place the
ballot in an envelope marked "Absentee by Facsimile" with the
completed waiver: Provided, That no ballots are to be processed
without the presence of two individuals of opposite political
parties.
(n) All ballots received by facsimile prior to the close of
the polls on election day are to be tabulated in the manner
prescribed for tabulating absentee ballots submitted by mail to the
extent that those procedures are appropriate for the applicable
voting system. The clerk of the county commission shall keep a
record of absentee ballots sent and received by facsimile.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 606--A Bill to amend and
reenact
§3-3-5 of the Code of West Virginia, 1931, as amended,
relating to absentee voting; providing that the application for
absentee voting may be distributed and returned by electronic mail;
providing for distribution and return by facsimile of ballots for
an absent uniformed services voter or overseas voter; and providing
procedures for securely receiving and tabulating facsimile ballots.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for S. B. No. 606, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 606) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 616, Relating to election ballots.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§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 include:
(1) The date of the election and the hours during which
polling places will be open;
(2) Instruction for mail-in registrants and first-time voters;
and
(3) Voters' rights; and
(4) Prohibitions against fraud and misrepresentation. and The
board of ballot commissioners shall also provide cards of
instruction for voters in preparing their ballots and casting a
provisional ballot as prescribed by the Secretary of State. They The board of ballot commissioners 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 two 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 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 may 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. When
paper ballots are used in conjunction with or as part of an
electronic voting system, the total number of regular official
ballots printed shall equal at a minimum eighty percent of the
number of registered voters eligible to vote that ballot. The
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 at a minimum seventy-five percent of the number of registered voters of the precinct. The remaining regular
official ballots shall be packaged and delivered to the 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 clerk of the
county commission of the appropriate county not later than the
forty-second day before the election. All official ballots in
paper ballot systems shall be delivered to the 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.
§3-1-41. Challenged and provisional voter procedures; counting of
provisional voters' ballots; ballots of election
officials.
(a) It shall be is the duty of the members of the receiving
board, jointly or severally, to challenge the right of any person
requesting a ballot to vote in any election:
(1) If the person's registration record is not available at
the time of the election; or
(2) If the signature written by the person in the poll book
does not correspond with the signature purported to be his or hers
on the registration record,;
(3) If the registration record of the person indicates any
other legal disqualification; or
(4) If any other valid challenge exists against the voter
pursuant to section ten, article three of this chapter.
(b) Any person challenged shall nevertheless be permitted to
vote in the election. He or she shall be furnished an official
ballot not endorsed by the poll clerks. In lieu of the
endorsements, the poll clerks shall complete and sign an
appropriate form indicating the challenge, the reason thereof and
the name or names of the challengers. The form shall be securely
attached to the voter's ballot and deposited together with the
ballot in a separate box or envelope marked "provisional ballots".
(c) At the time that an individual casts a provisional ballot,
the poll clerk shall give the individual written information stating that an individual who casts a provisional ballot will be
able to ascertain under the free access system established in this
section whether the vote was counted and, if the vote was not
counted, the reason that the vote was not counted.
(d) Provisional ballot shall
(e) Any person duly appointed as an election commissioner or
clerk under the provisions of section twenty-eight of this article
who serves in that capacity in a precinct other than the precinct
in which the person is legally entitled to vote may cast a
provisional ballot in the precinct in which the person is serving
as a commissioner or clerk. The ballot shall is not be invalid for
the sole reason of having been cast in a precinct other than the
precinct in which the person is legally entitled to vote. The
county commission shall record the provisional ballot on the voter's permanent registration record: Provided, That the county
commission may only count only the votes for the offices that the
voter was legally authorized to vote for in his or her own
precinct.
(f) The Secretary of State shall establish a free access
system, such as which may include a toll-free telephone number or
an internet website, that may be accessed by any individual who
casts a provisional ballot to discover whether the his or her vote
of that individual was counted and, if not, the reason that the
vote was not counted.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-11a.
Ballots tabulated electronically; arrangement, quantity
to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using
ballots upon which votes may be recorded by means of marking with
electronically sensible ink or pencil and which marks are tabulated
electronically shall cause the ballots to be printed or displayed
upon the screens of the electronic voting system for use in
elections.
(b) (1) For the primary election, the heading of the ballot,
the type faces, the names and arrangement of offices, in columns,
the spaces for marking votes, and the printing of offices,
instructions and candidates names and arrangement of candidates
within each office are to conform as nearly as possible to that
prescribed in this chapter for paper ballots, except that the
Secretary of State may prescribe necessary modifications to accommodate the tabulating system the provisions of sections
thirteen and thirteen-a, article five of this chapter.
(2) For the general election, the heading of the ballot, the
straight ticket positions, the instructions to straight ticket
voters, the type faces, the names and arrangement of offices and
the printing of names and the arrangement of candidates within each
office are to conform as nearly as possible to the provisions of
section two, article six of this chapter, except as otherwise
provided in this article.
(3) Nonpartisan elections for board of education and any
question to be voted upon are to be separated from the partisan
ballot and separately headed in display type with a title clearly
identifying the purpose of the election and constituting a separate
ballot wherever a separate ballot is required under the provisions
of this chapter.
(2) (4) Both the face and the reverse side of the ballot may
contain the names of candidates only if means to ensure the secrecy
of the ballot are provided and lines for the signatures of the poll
clerks on the ballot are printed on a portion of the ballot which
is deposited in the ballot box and upon which marks do not
interfere with the proper tabulation of the votes.
(3) (5) The arrangement of candidates within each office is to
be determined in the same manner as for other electronic voting
systems, as prescribed in this chapter. On the general election
ballot for all offices, and on the primary election ballot only for
those offices to be filled by election, except delegate to national convention, lines for entering write-in votes are to be provided
below the names of candidates for each office, and the number of
lines provided for any office shall equal the number of persons to
be elected, or three, whichever is fewer. The words or "WRITE-IN,
IF ANY" are to be printed, where applicable, directly under each
line for write-ins. The lines are to be opposite a position to
mark the vote.
(c) Except for electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary election ballots are to be printed in the
color of ink specified by the Secretary of State for the various
political parties, and the general election ballot is to be printed
in black ink. For electronic voting systems that utilize screens
upon which votes may be recorded by means of a stylus or by means
of touch, the primary ballots and the general election ballot are
to be printed in black ink. All ballots are to be printed, where
applicable, on white paper suitable for automatic tabulation and
are to contain a perforated stub at the top or bottom of the
ballot, which is to be numbered sequentially in the same manner as
provided in section thirteen, this article for ballots upon which
votes are recorded by means of perforating five of this chapter, or
is are to be displayed on the screens of the electronic voting
system upon which votes are recorded by means of a stylus or touch.
The number of ballots printed and the packaging of ballots for the
precincts are to conform to the requirements for paper ballots as
provided in this chapter.
(d) In addition to the official ballots, the ballot
commissioners shall provide all other materials and equipment
necessary to the proper conduct of the election.
§3-4A-15. Instructions and help to voters; vote-recording device
models; facsimile diagrams; sample ballots; legal
ballot advertisements.
(a) For the instruction of the voters on any election day in
counties utilizing an electronic voting system where votes are to
be recorded by means of perforating, there is to be provided for
each polling place one instruction model for each vote recording
device: Provided, That for electronic voting systems that utilize
uses a screen upon which votes may be recorded by means of a stylus
or by means of touch, there is to be provided the ballot
commissioners shall provide for each polling place a sample ballot
with each screen as they shall it will appear on the devices,
together with written instructions regarding the operation of the
devices. Each instruction model is to be constructed so as to
provide a replica of a vote recording device, and is to contain the
arrangement of the ballot labels, party columns or rows, office
columns or rows, and questions. Fictitious names are to be
inserted in the ballot labels of the models. The models are to be
located on the election officers' tables or in some other place in
which the voter must pass to reach the vote recording device. Upon
request, the election officers shall offer instruction to each
voter, before voting, in the operation of the vote-recording
device. by use of the instruction model, and shall give ample opportunity to operate the model himself or herself
(b) The ballot commissioners shall also provide facsimile
ballots, or ballot labels, as may be appropriate at least two of
which, or complete sets of which, are to be posted on the walls of
each polling place. The facsimile diagrams are exact diagrams of
the ballots or ballot labels or paper ballots or screens to the end
so that the voter may become familiar with the location of the
parties, offices, candidates and questions as they appear on the
ballot to be used in his or her precinct.
(c) The ballot commissioners may, with the consent of the
county commission, or the county commission may, prepare and mail
to each qualified voter at the address shown on the registration
books a facsimile sample of the ballot or ballot labels or screens
for his or her precinct.
(d) In counties where an electronic voting system has been
adopted, the legal ballot advertisements required by articles five
and six of this chapter, which specify the publication of a
facsimile sample ballot, are to consist of a facsimile of the
ballot or ballot labels or screens with the names of the candidates
and the offices for which they are running shown in their proper
positions.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
(a) 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) (b) 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 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.
(c) 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) (d) The certificate of announcement shall be in on 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: (A) 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 (B) 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 _____________, 20____" and a space for the signature of the
officer giving the oath.
(e) The Secretary of State or the board of ballot
commissioners, as the case may be, may refuse to certify the
candidacy or may remove the certification of the candidacy upon
receipt of a certified copy of the voter's registration record of
the candidate evidencing showing 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 are 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) (f) 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 accordance
with section three, article nine of this chapter.
(d) (g) 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) (h) 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 committees 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) (i) 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.
(j) 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.
§3-5-10. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official primary ballot for each party and, as the case may
be, for the nonpartisan candidates to be voted for at the primary
election, according to the provisions of this article and articles
four and four-a of this chapter, as appropriate to the voting
system. If any ballot issue is to be voted on in the primary
election, the ballot commissioners shall likewise prepare a sample
official ballot for that issue according to the provisions of law
authorizing the election.
(b) The facsimile sample ballot for each political party and
for nonpartisan candidates or ballot issues shall be published as
follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than twenty-six nor less than
twenty days preceding the primary election, the ballot
commissioners shall publish each sample official primary election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or having only one or more qualified newspapers which publish weekly,
not more than twenty-six nor less than twenty days preceding the
primary election, the ballot commissioners shall publish the sample
official primary election ballot as a Class I legal advertisement
in the qualified newspaper within the county having the largest
circulation in compliance with the provisions of article three,
chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty sixty-five percent
of the actual size of the ballot, at the discretion of the ballot
commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more
than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the Secretary of State, an
official list of offices and candidates for each office which will appear on the primary election ballot for each party and, as the
case may be, for the nonpartisan candidates to be voted for at the
primary election. All information which appears on the ballot,
including instructions as to the number of candidates for whom
votes may be cast for the office, any additional language which
will appear on the ballot below the name of the office, any
identifying information relating to the candidates, such as his or
her residence and magisterial district or presidential preference,
and the ballot numbers of the candidates for punch card systems
shall be included in the list in the same order in which it appears
on the ballot. Following the names of all candidates, the list
shall include the full title, text and voting positions of any
issue to appear on the ballot.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the primary election, the ballot
commissioners shall publish the official list of candidates and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately preceding the primary election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class
I legal advertisement in the qualified newspaper within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of candidates for
each party and for nonpartisan candidates shall be in single or
double columns, as required to accommodate the type size
requirements as follows: (A) The words "official list of
candidates", the name of the county, the words "primary election",
the date of the election, the name of the political party or the
designation of nonpartisan candidates shall be printed in all
capital letters and in bold type no smaller than fourteen point.
The designation of the national, state, district or other tickets
shall be printed in all capital letters in type no smaller than
fourteen point; (B) the title of the office shall be printed in
bold type no smaller than twelve point and any voting instructions
or other language printed below the title shall be printed in bold
type no smaller than ten point; and (C) the names of the candidates
shall be printed in all capital letters in bold type no smaller
than ten point and the residence information shall be printed in
type no smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than fourteen point. The text of the ballot
issue shall appear in no smaller than ten eight point type. The ballot commissioners may require the publication of the ballot
issue under this subsection in the facsimile sample ballot format
in lieu of the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the primary election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample ballot for each political
party and for nonpartisan candidates or ballot issues instead of
the official list of offices and candidates for each office for
purposes of the last publication required before any primary
election.
§3-5-13. Form and contents of ballots.
The face of every primary election ballot shall conform as
nearly as practicable to that used at the general election.
(a) (1) The heading of every ballot is to be printed in
display type. The heading is to contain a ballot title, the name
of the county, the state, the words "Primary Election" and the
month, day and year of the election. The ballot title of the
political party ballots is to contain the words "Official Ballot of
the (Name) Party" and the official symbol of the political party
may be included in the heading. The ballot title of any separate
paper ballot or portion of any electronic or voting machine ballot
for the Board of Education is to contain the words "Nonpartisan
Ballot of Election of Members of the ______________ County Board of
Education". The districts for which less than two candidates may
be elected and the number of available seats are to be specified and the names of the candidates are to be printed without reference
to political party affiliation and without designation as to a
particular term of office. Any other ballot or portion of a ballot
on a question is to have a heading which clearly states the purpose
of the election according to the statutory requirements for that
question.
(b) (1) (2) (A) For paper ballots, the heading of the ballot
is to be separated from the rest of the ballot by heavy lines and
the offices shall be arranged in columns with the following
headings, from left to right across the ballot: "National Ticket",
"State Ticket", "County Ticket" and, in a presidential election
year, "National Convention" or, in a nonpresidential election year,
"District Ticket". The columns are to be separated by heavy lines.
Within the columns, the offices are to be arranged in the order
prescribed in section thirteen-a of this article.
(2) (B) For voting machines, electronic voting devices and any
ballot tabulated by electronic means, the offices are to appear in
the same sequence as prescribed in section thirteen-a of this
article and under the same headings as prescribed in subsection (a)
of this section. The number of pages, columns or rows, where
applicable, may be modified to meet the limitations of ballot size
and composition requirements subject to approval by the Secretary
of State.
(3) (C) The title of each office is to be separated from
preceding offices or candidates by a line and is to be printed in
bold type no smaller than eight point. Below the office is to be printed the number of the district, if any, the number of the
division, if any, and the words "Vote for ________" with the number
to be nominated or elected or "Vote For Not More Than ________" in
multicandidate elections. For offices in which there are
limitations relating to the number of candidates which may be
nominated, elected or appointed to or hold office at one time from
a political subdivision within the district or county in which they
are elected, there is to be a clear explanation of the limitation,
as prescribed by the Secretary of State, printed in bold type
immediately preceding the names of the candidates for those offices
on the ballot in every voting system. For counties in which the
number of county commissioners exceeds three and the total number
of members of the county commission is equal to the number of
magisterial districts within the county, the office of county
commission is to be listed separately for each district to be
filled with the name of the magisterial district and the words
"Vote for One" printed below the name of the office: Provided,
That the office title and applicable instructions may span the
width of the ballot so as it is centered among the respective
columns.
(c) (D) The location for indicating the voter's choices on the
ballot is to be clearly shown. For paper ballots, other than those
tabulated electronically, the official primary ballot is to contain
a square formed in dark lines at the left of each name on the
ballot, arranged in a perpendicular column of squares before each
column of names.
(d) (1) (3) (A) The name of every candidate certified by the
Secretary of State or the board of ballot commissioners is to be
printed in capital letters in no smaller than eight-point type on
the ballot for the appropriate precincts. Subject to the rules
promulgated by the Secretary of State, the name of each candidate
is to appear in the form set out by the candidate on the
certificate of announcement, but in no case may the name
misrepresent the identity of the candidate nor may the name include
any title, position, rank, degree or nickname implying or inferring
any status as a member of a class or group or affiliation with any
system of belief.
(2) (B) The city of residence of every candidate, the state of
residence of every candidate residing outside the state, the county
of residence of every candidate for an office on the ballot in more
than one county and the magisterial district of residence of every
candidate for an office subject to magisterial district limitations
are to be printed in lower case letters beneath the names of the
candidates.
(3) (C) The arrangement of names within each office must be
determined as prescribed in section thirteen-a of this article.
(4) (D) If the number of candidates for an office exceeds the
space available on a column or ballot label page and requires that
candidates for a single office be separated, to the extent
possible, the number of candidates for the office on separate
columns or pages are to be nearly equal and clear instructions
given the voter that the candidates for the office are continued on the following column or page.
(e) (4) When an insufficient number of candidates has filed
for a party to make the number of nominations allowed for the
office or for the voters to elect sufficient members to the Board
of Education or to executive committees, the vacant positions on
the ballot shall be filled with the words "No Candidate Filed":
Provided, That in paper ballot systems which allow for write-ins to
be made directly on the ballot, a blank line shall be placed in any
vacant position in the office of board of education or for election
to any party executive committee. A line shall separate each
candidate from every other candidate for the same office.
Notwithstanding any other provision of this code, if there are
multiple vacant positions on a ballot for one office, the multiple
vacant positions which would otherwise be filled with the words "No
Candidate Filed" may be replaced with a brief detailed description,
approved by the Secretary of State, indicating that there are no
candidates listed for the vacant positions.
(f) (5) In presidential election years, the words "For
election in accordance with the plan adopted by the party and filed
with the Secretary of State" is to be printed following the names
of all candidates for delegate to national convention.
(g) (6) All paper ballots are to be printed in black ink on
paper sufficiently thick so that the printing or marking cannot be
discernible from the back. Ballot cards and paper for printing
ballots using electronically sensible ink are to meet minimum
requirements of the tabulating systems and are to conform in size and weight to ensure ease in tabulation.
(h) (7) Ballots and ballot cards are to contain perforated
tabs at the top of the ballots and are to be printed with unique
sequential numbers from one to the highest number representing the
total number of ballots or ballot cards printed. On paper ballots,
the ballot is to be bordered by a solid line at least one sixteenth
of an inch wide and the ballot is to be trimmed to within one-half
inch of that border.
(i) (8) On the back of every official ballot or ballot card
the words "Official Ballot" with the name of the county and the
date of the election are to be printed. Beneath the date of the
election there are to be two blank lines followed by the words
"Poll Clerks".
(j) (9) The face of sample paper ballots and sample ballot
labels are to be like other official ballots or ballot labels
except that the word "sample" is to be prominently printed across
the front of the ballot in a manner that ensures the names of
candidates are not obscured and the word "sample" may be printed in
red ink. No printing may be placed on the back of the sample.
§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 eighty-four 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 eighty-four 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 eighty-four
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 county commission no earlier than the first Monday in August
and no later than seventy-seven days before the general election.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-2. Preparation and form of general election ballots.
(a) All ballots prepared under the provisions of this section
are to contain:
(1) The name and ticket of each party which is a political
party under the provisions of section eight, article one of this
chapter;
(2) The name chosen as the party name by each group of
citizens which has secured nomination for two or more candidates by
petition under the provisions of section twenty-three of this
article;
(3) The names of every candidate for any office to be voted for at the election whose nomination in the primary election,
nomination by petition or nomination by appointment to fill a
vacancy on the ballot has been certified and filed according to law
and no others.
(b) The provisions of subdivision (3) paragraphs (C) and (D),
subsection (b) subdivision (2), section thirteen, article five of
this chapter; subsection (c) subdivision (3) of said section;
subdivisions (1) and (2) subsection (d) paragraphs (A) and (B),
subdivision (4) of said section; and subsections (g), (h), (i), (j)
and (k) subdivisions (6), (7), (8) and (9) of said section
pertaining to the preparation and form of primary election ballots
shall likewise apply to general election ballots.
(c) (1) For all ballot systems, the ballot heading is to be in
display type and contain the words "Official Ballot, General
Election" and the name of the county and the month, day and year of
the election.
(2) After the heading, each ballot is to contain, laid out in
parallel columns, rows or pages as required by the particular
voting system, the party emblem, the position for straight party
voting for each party and the name of each party as prescribed in
subsection (a) of this section. On paper ballots, the position for
straight party voting is to be a heavy circle, three-fourths inch
in diameter, surrounded by the words "For a straight ticket mark
within this circle" printed in bold six-point type. On all other
ballots or ballot labels, the positions for straight party voting
is to be marked "Straight Party Ticket". For ballots tabulated electronically, the Secretary of State shall prescribe a uniform
number for the straight ticket position for each party.
(3) The party whose candidate for president received the
highest number of votes at the last preceding presidential election
is to be placed in the left, or first column, row or page, as is
appropriate to the voting system. The party which received the
second highest vote is to be next and so on. Any groups or third
parties which did not have a candidate for president on the ballot
in the previous presidential election are to be placed in the
sequence in which the final certificates of nomination by petition
were filed.
(4) (A) Except for lever machine ballot labels, The following
general instructions for straight party voters are to be printed in
no smaller than eight-point bold type: "IF YOU MARKED A STRAIGHT
TICKET: When you mark any individual candidate in a different
party, that vote will override your straight party vote for that
office. When you mark any individual candidate in a different
party for an office where more than one will be elected, YOU MUST
MARK EACH OF YOUR CHOICES FOR THAT OFFICE because your straight
ticket vote will not be counted for that office." The last
sentence of the instructions may not be included on any ballot
which does not contain any office or division where more than one
candidate will be elected.
On paper ballots, the general instructions are to be placed
below the party name and across the top of all columns, followed by
a heavy line separating them from the rest of the ballot: Provided, That the instructions may be centered among the columns
running the full width of the ballot. On ballots marked with
electronically sensible ink, and on ballot labels for voting
devices in punch card systems the general instructions are to be
placed after the position for straight voting and before any
office.
(B) Except for lever machine ballot labels, the The following
specific instructions are to be printed on the ballot for any
partisan election for an office or division to which more than one
candidate is to be elected: "If you marked a straight ticket and
you mark any candidate in a different party for this office, you
must mark all your choices for this office because your straight
ticket vote will not be counted for this office."
On paper ballots, the specific instructions are to be placed
below the office name of any partisan office where more than one is
to be elected and across the top of all columns for that office or
centered among the columns before the names of any candidates. On
all other ballots and ballot labels, the specific instructions are
to be placed above or to the side of the names of the candidates as
the voting system requires.
(5) For all ballots, any columns, rows or sections in which
the ticket of one party appears are to be clearly separated from
the other columns, rows or sections by a heavy line or other clear
division. For each party, the offices are to be arranged in the
order prescribed in section thirteen-a, article five of this
chapter under the appropriate tickets, which are to be headed "National Ticket", "State Ticket" and "County Ticket". The number
of pages, columns or rows, where applicable, may be modified to
meet the limitations of ballot size and composition requirements,
subject to approval by the Secretary of State.
(d) The arrangement of names within each office for all ballot
systems is to be as follows:
(1) In elections for presidential electors, the names of the
candidates for president and vice president of each party are to be
placed beside a brace with a single voting position, so that a vote
for any presidential candidate is a vote for the electors of the
party for which the candidates were named.
(2) The order of names of candidates for any office or
division for which more than one is to be elected is determined as
prescribed in section thirteen-a, article five of this chapter:
Provided, That the drawing by lot is to be conducted on the
seventieth day next preceding the date of the general election,
beginning at 9:00 a.m.
(3) Except in voting machine systems, in In any office where
more than one person is to be elected, the names of the candidates
for the office are to be staggered so that no two candidates for
that office appear directly opposite any other candidate, as shown
in the example below: Provided, That if the voting system cannot
accurately tabulate any ballot due to this requirement, the ballot
may be adjusted so that it is accurately tabulated. However, each
candidate shall be separated by a thin line to distinguish between
each candidate.
_________________________________________________________________
_________________________________________________________________
For House of DelegatesFor House of Delegates
First Delegate DistrictFirst Delegate District
(Vote For Not More Than Two)(Vote For Not More Than Two)
__________________________________________________________
SUSAN B. ANTHONY
City (County)
___________________________________________________________
JOHN ADAMS
City (County)
__________________________________________________________
ABRAHAM LINCOLN
City (County)
__________________________________________________________
JAMES MONROE
City (County)
__________________________________________________________
(4) Each voting system is to provide a means for voters to
vote for any person whose name does not appear on the ticket by
writing it with pen or pencil or by using stamps, stickers, tapes,
labels or other means of writing in the name of a candidate which
does not interfere with the tabulation of the ballot.
(A) In paper ballot systems which allow for write-ins to be
made directly on the ballot, a blank square and a blank line equal
to the space which would be occupied by the name of the candidate
is to be placed under the proper office for each vacancy in
nomination and for an office for which more than one is to be
elected, any vacancy is to appear after any other candidates for
the office. If no write-in lines are included on the ballot,
specific instructions are to be added to the top of the ballot
notifying the voter that a write-in vote may be cast by writing the name and office on any location on the front of the ballot.
(B) In machine and electronically tabulated ballot systems in
which write-in votes must be made in a place other than on the
ballot, label if there is a vacancy in nomination leaving fewer
candidates in any party than can be elected to that office, the
words "No Candidate Nominated" is to be printed in the space that
would be occupied by the name of the candidate and for an office
for which more than one is to be elected, any such vacancy is to
appear after any other candidates for the office. Notwithstanding
any other provision of this code, if there are multiple vacant
positions on a ballot for one office, the multiple vacant positions
which would otherwise be filled with the words "No Candidate Filed"
may be replaced with a brief detailed description, approved by the
Secretary of State, indicating that there are no candidates listed
for the vacant positions.
(5) In a general election in any county in which unexpired
terms of the board of education are to be filled by election, a
separate section or page of the ballot is to be set off by means
clearly separating the nonpartisan ballot from the ballot for the
political party candidates and is to be headed "Nonpartisan Board
of Education".
(e) Any constitutional amendment is to be placed following all
offices, followed by any other issue upon which the voters are to
cast a vote. The heading for each amendment or issue is to be
printed in large, bold type according to the requirements of the
resolution authorizing the election.
(f) The board of ballot commissioners may not place any issue
on the ballot for election which is not specifically authorized
under the West Virginia Constitution or statutes or which has not
been properly ordered by the appropriate governmental body charged
with calling the election.
§3-6-3. Publication of sample ballots and lists of candidates.
(a) The ballot commissioners of each county shall prepare a
sample official general election ballot for all political party or
independent nominees, nonpartisan candidates for election, if any,
and all ballot issues to be voted for at the general election,
according to the provisions of this article and articles four and
four-a of this chapter, as appropriate to the voting system, and
for any ballot issue, according to the provisions of law
authorizing the election.
(b) The facsimile sample general election ballot shall be
published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, not more than twenty-six nor less than
twenty days preceding the general election, the ballot
commissioners shall publish the sample official general election
ballot as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily newspaper, or
having only one or more qualified newspapers which publish weekly, not more than twenty-six nor less than twenty days preceding the
primary election, the ballot commissioners shall publish the sample
official general election ballot as a Class I legal advertisement
in the qualified newspaper within the county having the largest
circulation in compliance with the provisions of article three,
chapter fifty-nine of this code; and
(3) Each facsimile sample ballot shall be a photographic
reproduction of the official sample ballot or ballot pages and
shall be printed in a size no less than eighty sixty-five percent
of the actual size of the ballot, at the discretion of the ballot
commissioners: Provided, That when the ballots for the precincts
within the county contain different senatorial, delegate,
magisterial or executive committee districts or when the ballots
for precincts within a city contain different municipal wards, the
facsimile shall be altered to include each of the various districts
in the appropriate order. If, in order to accommodate the size of
each ballot, the ballot or ballot pages must be divided onto more
than one page, the arrangement and order shall be made to conform
as nearly as possible to the arrangement of the ballot. The
publisher of the newspaper shall submit a proof of the ballot and
the arrangement to the ballot commissioners for approval prior to
publication.
(c) The ballot commissioners of each county shall prepare, in
the form and manner prescribed by the Secretary of State, an
official list of offices and nominees for each office which will
appear on the general election ballot for each political party or as independent nominees and, as the case may be, for the
nonpartisan candidates to be voted for at the general election:
(1) All information which appears on the ballot, including the
names of parties for which a straight ticket may be cast,
instructions relating to straight ticket voting, instructions as to
the number of candidates for whom votes may be cast for the office,
any additional language which will appear on the ballot below the
name of the office, any identifying information relating to the
candidates, such as his or her residence and magisterial district
or presidential preference. and the ballot numbers of the
candidates for punch card systems shall be included in the list in
the order specified in subdivision (2) of this subsection
Following the names of all candidates, the list shall include the
full title, text and voting positions of any issue to appear on the
ballot.
(2) The order of the straight ticket positions, offices and
candidates for each office and the manner of designating the
parties shall be as follows:
(A) The straight ticket positions shall be designated
"straight (party name) ticket", with the parties listed in the
order in which they appear on the ballot, from left to right or
from top to bottom, as the case may be;
(B) The offices shall be listed in the same order in which
they appear on the ballot;
(C) The candidates within each office for which one is to be
elected shall be listed in the order they appear on the ballot, from left to right or from top to bottom, as the case may be, and
the candidate's political party affiliation or independent status
shall be indicated by the one or two letter initial specifying the
affiliation, placed in parenthesis to the right of the candidate's
name; and
(D) The candidates within each office for which more than one
is to be elected shall be arranged by political party groups in the
order they appear on the ballot and the candidate's affiliation
shall be indicated as provided in paragraph (C) of this
subdivision.
(d) The official list of candidates and issues as provided in
subsection (c) of this section shall be published as follows:
(1) For counties in which two or more qualified newspapers
publish a daily newspaper, on the last day on which a newspaper is
published immediately preceding the general election, the ballot
commissioners shall publish the official list of nominees and
issues as a Class I-0 legal advertisement in the two qualified
daily newspapers of different political parties within the county
having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(2) For counties having no more than one daily paper, or
having only one or more qualified newspapers which publish weekly,
on the last day on which a newspaper is published immediately
preceding the general election, the ballot commissioners shall
publish the sample official list of nominees and issues as a Class
I legal advertisement in the qualified newspaper within the county having the largest circulation in compliance with the provisions of
article three, chapter fifty-nine of this code;
(3) The publication of the official list of nominees for each
party and for nonpartisan candidates shall be in single or double
columns, as required to accommodate the type size requirements as
follows:
(A) The words "official list of nominees and issues", the name
of the county, the words "General Election" and the date of the
election shall be printed in all capital letters and in bold type
no smaller than fourteen point;
(B) The designation of the straight ticket party positions
shall be printed in all capital letters in bold type no smaller
than twelve point and the title of the office shall be printed in
bold type no smaller than twelve point and any voting instructions
or other language printed below the title shall be printed in bold
type no smaller than ten point; and
(C) The names of the candidates and the initial within
parenthesis designating the candidate's affiliation shall be
printed in all capital letters in bold type no smaller than ten
point and the residence information shall be printed in type no
smaller than ten point; and
(4) When any ballot issue is to appear on the ballot, the
title of that ballot shall be printed in all capital letters in
bold type no smaller than twelve point. The text of the ballot
issue shall appear in no smaller than ten-point eight-point type.
The ballot commissioners may require the publication of the ballot issue under this subsection in the facsimile sample ballot format
in lieu of the alternate format.
(e) Notwithstanding the provisions of subsections (c) and (d)
of this section, beginning with the general election to be held in
the year two thousand, the ballot commissioners of any county may
choose to publish a facsimile sample general election ballot,
instead of the official list of candidates and issues, for purposes
of the last publication required before any general election.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 616, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 616) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Rev. Com. Sub. for Senate Bill No. 712, Relating to wine
regulations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By
striking out everything after the enacting clause by
inserting in lieu thereof the following:
That §11-10-5s of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17-22-7 of said code be amended and
reenacted; that §60-1-5a of said code be amended and reenacted;
that §60-3A-18 of said code be amended and reenacted; that §60-4-2,
§60-4-3, §60-4-3a, §60-4-15 and §60-4-22 of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §60-4-3b; that §60-6-1 and §60-6-2 of said code
be amended and reenacted; that §60-8-1, §60-8-2, §60-8-3, §60-8-4,
§60-8-5, §60-8-6, §60-8-7, §60-8-16, §60-8-18, §60-8-19, §60-8-20,
§60-8-23, §60-8-24, §60-8-25, §60-8-26, §60-8-28, §60-8-29, §60-8-
30, §60-8-31, §60-8-32 and §60-8-34 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §60-8-6a, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-5s. Disclosure of certain taxpayer information.
(a) Purpose. -- The Legislature hereby recognizes the
importance of confidentiality of taxpayer information as a
protection of taxpayers' privacy rights and to enhance voluntary
compliance with the tax law. The Legislature also recognizes the
citizens' right to accountable and efficient state government. To
accomplish these ends, the Legislature hereby creates certain
exceptions to the general principle of confidentiality of taxpayer
information.
(b) Exceptions to confidentiality. --
(1) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register
the name and address of every taxpayer, and the amount, by
category, of any credit asserted on a tax return under articles
thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g,
thirteen-q, thirteen-r and thirteen-s of this chapter and article
one, chapter five-e of this code. The categories by dollar amount
of credit received shall be as follows:
(A) More than one dollar, but not more than fifty thousand
dollars;
(B) More than fifty thousand dollars, but not more than one
hundred thousand dollars;
(C) More than one hundred thousand dollars, but not more than
two hundred fifty thousand dollars;
(D) More than two hundred fifty thousand, but not more than
five hundred thousand dollars;
(E) More than five hundred thousand dollars, but not more than
one million dollars; and
(F) More than one million dollars.
(2) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner shall publish in the State Register
the following information regarding any compromise of a pending
civil tax case that occurs on or after the effective date of this
section in which the Tax Commissioner is required to seek the
written recommendation of the Attorney General and the Attorney
General has not recommended acceptance of the compromise or when
the Tax Commissioner compromises any civil tax case for an amount
that is more than two hundred fifty thousand dollars less than the
assessment of tax owed made by the Tax Commissioner:
(A) The names and addresses of taxpayers that are parties to
the compromise;
(B) A summary of the compromise;
(C) Any written advice or recommendation rendered by the
Attorney General regarding the compromise; and
(D) Any written advice or recommendation rendered by the Tax
Commissioner's staff.
Under no circumstances may the tax return of the taxpayer or
any other information which would otherwise be confidential under
any other provisions of law be disclosed pursuant to the provisions
of this subsection.
(3) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may disclose any relevant return information to the prosecuting attorney for the county in which
venue lies for a criminal tax offense when there is reasonable
cause, based upon and substantiated by the return information, to
believe that a criminal tax law has been or is being violated.
(4) Notwithstanding any provision in this code to the
contrary, the Tax Commissioner may enter into written exchange of
information agreements with the commissioners of Labor, Employment
Security, Alcohol Beverage Control and Workers' Compensation to
disclose and receive timely return information: Provided, That the
Tax Commissioner may promulgate rules pursuant to chapter
twenty-nine-a of this code regarding further agencies with which
written exchange of information agreements may be sought:
Provided, however, That the Tax Commissioner may not promulgate
emergency rules regarding further agencies with which written
exchange of information agreements may be sought. The agreements
shall be published in the State Register and shall only be for the
purpose of facilitating premium collection, tax collection and
facilitating licensure requirements directly enforced, administered
or collected by the respective agencies. The provisions of this
subsection shall not be construed to preclude or limit disclosure
of tax information authorized by other provisions of this code.
Any confidential return information so disclosed shall remain
confidential in the hands of the other division to the extent
provided by section five-d of this article and by other applicable
federal or state laws.
(5) Notwithstanding any provision of this code to the contrary, the Tax Commissioner may enter into a written agreement
with the State Treasurer to disclose to the State Treasurer the
following business registration information:
(A) The names, addresses and federal employer identification
numbers of businesses which have registered to do business in West
Virginia; and
(B) The type of business activity and organization of those
businesses. Disclosure of this information shall begin as soon as
practicable after the effective date of this subsection and may be
used only for the purpose of recovery and disposition of unclaimed
property in accordance with the provisions of article eight,
chapter thirty-six of this code. The provisions of this subsection
shall not be construed to preclude or limit disclosure of tax
information authorized by other provisions of this code. Any
confidential return information disclosed hereunder or thereunder
shall otherwise remain confidential to the extent provided by
section five-d of this article and by other applicable federal or
state laws.
(c) Tax expenditure reports. -- Beginning on the fifteenth day
of January, one thousand nine hundred ninety-two, and every
fifteenth day of January thereafter, the Governor shall submit to
the President of the Senate and the Speaker of the House of
Delegates a tax expenditure report. This report shall expressly
identify all tax expenditures. Within three-year cycles, the
reports shall be considered together to analyze all tax
expenditures by describing the annual revenue loss and benefits of the tax expenditure based upon information available to the Tax
Commissioner. For purposes of this section, the term "tax
expenditure" shall mean a provision in the tax laws administered
under this article, including, but not limited to, exclusions,
deductions, tax preferences, credits and deferrals designed to
encourage certain kinds of activities or to aid taxpayers in
special circumstances: Provided, That the Tax Commissioner shall
promulgate rules setting forth the procedure by which he or she
will compile the reports and setting forth a priority for the order
in which the reports will be compiled according to type of tax
expenditure.
(d) Federal and state return information confidential. --
Notwithstanding any other provisions of this section or of this
code, no return information made available to the Tax Commissioner
by the Internal Revenue Service or department or agency of any
other state may be disclosed to another person in any manner
inconsistent with the provisions of Section 6103 of the Internal
Revenue Code of 1986, as amended, or of the other states'
confidentiality laws.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 22. OUTDOOR ADVERTISING.
§17-22-7. Exceptions to prohibited signs; standards for excepted
signs.
The provisions of section three of this article shall not
apply to the following: (a) Directional and other official signs
and notices required or authorized by law, including, but not limited to, signs and notices pertaining to natural wonders, farm
wineries, mini-distilleries, scenic and historical attractions,
which such signs and notices shall conform to standards respecting
lighting, size, number, spacing and such other appropriate
requirements as may be designated and specified by the Secretary of
Transportation of the United States: Provided, That the
Commissioner of the Division of Highways shall not establish any
standards respecting lighting, size, number, spacing and other
appropriate requirements which are stricter than such standards
designated and specified by the Secretary of Transportation of the
United States; (b) signs, displays and devices advertising the sale
or lease of property upon which they are located; and (c) signs,
displays and devices advertising activities conducted on the
property on which they are located, including markers of
underground utility facilities.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 1. GENERAL PROVISIONS.
§60-1-5a. Farm wineries defined.
(a) For the purpose of this chapter: "Farm winery" means an
establishment where in any year fifty thousand gallons or less of
wine is and nonfortified dessert wine are manufactured exclusively
by natural fermentation from grapes, other fruits or honey or other
agricultural products containing sugar and where port, sherry and
Madeira wine may also be manufactured, with twenty-five percent of
such raw products being produced by the owner of such farm winery
on the premises of that establishment and no more than twenty-five percent of such produce originating from any source outside this
state. Any port, sherry or Madeira wine manufactured by a winery
or a farm winery must not exceed an alcoholic content of twenty-two
percent alcohol by volume and shall be matured in wooden barrels or
casks.
(b) Notwithstanding the provisions of subsection (a) of this
section, a farm winery may include one off-farm location. The owner
of a farm winery may provide to the commissioner evidence,
accompanied by written findings by the West Virginia Agriculture
Commissioner in support thereof, that the owner has planted on the
premises of the farm winery young nonbearing fruit plants. The
commissioner may grant permission for one off-farm location in an
amount equal to that reasonably expected to be produced when the
nonbearing fruit plants planted on the farm winery come into full
production. The length of time of the permission to use an off-
farm location shall be determined by the commissioner after
consultation with the Agriculture Commissioner.
(c) For purposes of this definition and when used in this
chapter to refer to the product of a farm winery or the product of
the holder of a farm winery license, "wine" includes dessert wines
manufactured exclusively by natural fermentation and port, sherry
and Madeira wines having an alcoholic content of not more than
twenty-two percent alcohol by volume and which have been matured in
wooden barrels or casks.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSES.
§60-3A-18. Days and hours retail licensees may sell liquor.
Retail licensees may not sell liquor on Sundays, Christmas or
election day, or between the hours of ten o'clock p.m. twelve
midnight and eight o'clock a.m., except that wine and fortified
wines may be sold on such days and at such times as authorized in
section thirty-four, article eight of this chapter.
ARTICLE 4. LICENSES.
§60-4-2. Licenses for manufacture.
The commission may grant licenses for the manufacture of
alcoholic liquors. Separate licenses shall be issued to the
following classes of manufacturing establishments:
(1) Distilleries, in which only alcoholic liquors other than
wine or beer is manufactured;
(2) Wineries, in which only wines are manufactured;
(3) Breweries, in which beer is manufactured;
(4) Bottling plants, in which beer only is bottled;
(5) Industrial plants, in which alcohol is distilled,
manufactured or otherwise produced for scientific, chemical,
mechanical or industrial purposes;
(6) Farm wineries in which only wines are manufactured; and
from which the wine so manufactured may be served or sold or both
served and sold in accordance with the provisions of this chapter;
and
(7) Mini-distilleries in which only alcoholic liquors other
than wine, beer or nonintoxicating beer are manufactured.
§60-4-3. To whom licensed manufacturer may sell.
A person who is licensed to manufacture alcoholic liquors in this state may sell liquors in this state only to the West Virginia
Alcohol Beverage Control Commissioner and to wholesalers and
retailers licensed as provided in this chapter: Provided, That a
holder of a winery or a farm winery license may sell wines, and a
holder of a distillery or a mini-distillery license may sell
alcoholic liquors manufactured by it in this state in accordance
with the provisions of section two, article six of this chapter.
Hours of retail sale by a winery or a farm winery or distillery or
a mini-distillery is subject to regulation by the commissioner.
The commissioner may not promulgate any rule which prohibits the
holder of a farm winery license from the advertising of a
particular brand or brands of wine produced by it, and the price of
the wine: Provided, however, That price may not be advertised in
medium of electronic communication subject to the jurisdiction of
the Federal Communications Commission. A manufacturer winery,
distillery, farm winery or mini-distillery may sell and ship
alcoholic liquors outside of the state subject to provisions of
this chapter.
§60-4-3a. Distillery and mini-distillery license to manufacture
and sell.
(a) Sales of liquor. -- An operator of a distillery or a
mini-distillery may offer liquor for retail sale to customers from
the distillery or the mini-distillery for consumption off premises
only. Except for free complimentary samples offered pursuant to
section one, article six of this chapter, customers are prohibited
from consuming any liquor on the premises of the distillery or the mini-distillery.
(b) Retail sales. -- Every licensed distillery or
mini-distillery shall comply with the provisions of sections nine,
eleven, thirteen, sixteen, seventeen, eighteen, nineteen,
twenty-two, twenty-three, twenty-four, twenty-five and twenty-six,
article three-a of this chapter and the provisions of articles
three and four of this chapter applicable to liquor retailers and
distillers.
(c) Payment of taxes and fees. -- The distillery or
mini-distillery shall pay all taxes and fees required of licensed
retailers and meet applicable licensing provisions as required by
this chapter and by rule of the commissioner.
(d) Payments to market zone retailers. -- Each distillery or
mini-distillery shall submit to the commissioner ten percent of the
gross sales price or each retail liquor sale for the value of all
sales at the distillery or the mini-distillery each month. This
collection shall be distributed by the commissioner, at least
quarterly, to each market zone retailer located in the distillery
or mini-distillery's market zone, proportionate to each market zone
retailer's annual gross prior years pretax value sales.
(e) Limitations on licensees. -- No distillery or
mini-distillery may sell more than three thousand gallons of
product at the distillery or mini-distillery location the initial
two years of licensure. The distillery or mini-distillery may
increase sales at the distillery or mini-distillery location by two
thousand gallons following the initial 24-month period of licensure, and may increase sales at the distillery or
mini-distillery location each subsequent 24-month period by two
thousand gallons, not to exceed ten thousand gallons a year of
total sales at the distillery or 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 distillery or mini-distillery license may be issued to a
single person or entity, and no person may hold both a distillery
and a mini-distillery license.
§60-4-3b. Winery and farm winery license to manufacture and sell.
(a) Sales of wine. -- An operator of a winery or farm winery
may offer wine produced by the winery or farm winery for retail
sale to customers from the winery or farm winery for consumption
off the premises only. Except for free complimentary samples
offered pursuant to section one, article six of this chapter,
customers are prohibited from consuming any wine on the premises of
the winery or farm winery, unless such winery or farm winery has
obtained a multi-capacity winery or farm winery license.
(b) Retail sales. -- Every licensed winery or farm winery
shall comply with the provisions of articles three, four and eight
of this chapter as applicable to wine retailers, wineries and
suppliers when properly licensed in such capacities.
(c) Payment of taxes and fees. -- The winery or farm winery
shall pay all taxes and fees required of licensed wine retailers
and meet applicable licensing provisions as required by this
chapter and by rule of the commissioner. Each winery or farm winery acting as its own supplier shall submit to the Tax
Commissioner the liter tax for all sales at the winery or farm
winery each month, as provided in article eight of this chapter.
(d) Advertising. -- A winery or farm winery may advertise a
particular brand or brands of wine produced by it, and the price of
the wine subject to federal requirements or restrictions.
(e) Limitations on licensees. -- A winery or farm winery must
maintain separate winery or farm winery supplier, retailer and
direct shipper licenses when acting in one or more of those
capacities, and must pay all associated license fees, unless such
winery or farm winery holds a license issued pursuant to the
provisions of subdivision (12), subsection (b), section three,
article eight of this chapter. A winery or farm winery, if holding
the appropriate licenses or a multi-capacity winery or farm winery
license, may act as its own supplier; retailer for off-premises
consumption of its wine as specified in section two, article six of
this chapter; private wine restaurant; and direct shipper for wine
produced by the winery or farm winery. All wineries must use a
distributor to distribute and sell their wine in the state, except
for farm wineries. No more than one winery or farm winery license
may be issued to a single person or entity, and no person may hold
both a winery and a farm winery license.
§60-4-15. Amount of license fees.
A person to whom a license is issued under the provisions of
this chapter shall pay annually to the commissioner a license fee
as follows, for:
(1) Distilleries, one thousand five hundred dollars;
(2) Wineries, one thousand five hundred dollars;
(3) Breweries, two hundred fifty one thousand five hundred
dollars;
(4) Bottling plants, one hundred dollars;
(5) Wholesale druggists, fifty dollars;
(6) Institutions, ten dollars;
(7) Industrial use, fifty dollars;
(8) Industrial plants producing alcohol, two hundred fifty
dollars;
(9) Retail druggists, ten dollars;
(10) Farm wineries, fifty dollars;
(11) Mini-distilleries, fifty dollars.
§60-4-22. Wholesale representatives' licenses.
No A person, firm or corporation shall may not be or act or
serve as an agent, broker or salesman selling or offering to sell
or soliciting or negotiating the sale of alcoholic liquor to the
commission or to any distributor licensed pursuant to article eight
of this chapter without first obtaining a license so to do in
accordance with the provisions of this section. Only salaried
employees of distilleries, manufacturers, producers or processors
of alcoholic liquor may be licensed hereunder, and no person may be
licensed hereunder who sells or offers to sell alcoholic liquor to
the commission or any distributor on a fee or commission basis.
The commission shall be the licensing authority and may grant to
persons of good moral character the license herein provided, and may refuse to grant such license to any person heretofore convicted
of a felony within ten years prior to his or her application for
such license; refuse to grant, suspend or revoke licenses.
Licenses shall be on an annual basis for the period from the first
day of July until the thirtieth day of June next following. New
and renewal licenses shall be granted only upon verified
application to the commission presented on forms provided by the
commission. Any person representing more than one producer,
manufacturer or distributor of alcoholic liquors shall file a
separate application and shall obtain a separate license for each
such representation. The annual license fee shall be one hundred
dollars. The fee for any license granted for the remainder of any
license year between the first day of January and the thirtieth day
of June of the same calendar year shall be fifty dollars.
No person who is the father, mother, son, daughter, brother,
sister, uncle, aunt, nephew or niece of a member of the commission
or of any elected or appointed state official, county official or
municipal official, or who is the spouse of any such person so
related to a member of the commission or to any elected or
appointive state official, county official or municipal official,
may be granted a license. hereunder No member of the Legislature
or the spouse of any such member may be granted a license.
hereunder Nor shall may any member or officer of any political
party executive committee of this state or the spouse of any such
member or officer be granted a license. hereunder
In addition to all other information which the commission may require to be supplied on the license application forms, each
applicant shall be required to state his or her name and his or her
residence address and the name and business address of the
producer, manufacturer or distributor he represents; the name and
address of each additional producer, manufacturer or distributor of
alcoholic liquors he or she represents; the monetary total of all
alcoholic liquor sales, if any, made by him or her to the
commission or to any distributor licensed pursuant to article eight
of this chapter during the fiscal year preceding the license year
for which he or she is seeking a license; the monetary total of the
gross income received by him or her on such sales, if any, during
such fiscal year; whether he or she has, during such fiscal year,
made or given, voluntarily or on request, any gift, contribution of
money or property to any member or employee of the commission or of
any distributor licensed pursuant to article eight of this chapter
or to or for the benefit of any political party committee or
campaign fund; and his or her relationship, if any, by blood or
marriage, to any member of the commission or to any elected or
appointive state official, county official or municipal official.
All such applications shall be verified by oath of the applicant
and shall be prepared and filed in duplicate. All such
applications and a current list of all licensees hereunder shall be
matters of public record and shall be available to public
inspection at the commission's offices at the State Capitol. Every
licensee who ceases to be an agent, broker or salesman, as herein
contemplated, shall so advise the commission in writing and such person's name shall be immediately removed from the license list
and his or her license shall be canceled and terminated.
Except as to owners, principal officers or employees of farm
wineries, all All persons licensed hereunder under this section
shall be full-time salaried employees authorized representatives of
the wineries, farm wineries, distilleries, mini-distilleries,
manufacturers, producers or processors of alcoholic liquor they
represent. and shall devote their full time to the duties of such
employment and shall have and engage in no other remunerative
occupation or calling at the same time No such A licensed person
shall may not share, divide or split his or her salary with any
person other than his wife or some legal dependent, nor shall may
he or she make any contribution to any political party campaign
fund in this state.
All licensees hereunder shall be subject to all other
provisions of this chapter and to the lawful rules and regulations
promulgated by the commission. Licenses may be refused, suspended
or revoked by the commission for cause, including any of the
applicable grounds of revocation specified in section nineteen of
this article. Provisions of this article relating to notice,
hearing and appeals shall, to the extent applicable, govern
procedures on suspension and revocation of licenses hereunder.
Any person, firm or corporation violating any provision of
this section, including knowingly making of any false statement in
a verified application for a license shall be guilty of a
misdemeanor offense and shall, upon conviction thereof, be fined not exceeding one thousand dollars or imprisoned in jail not
exceeding twelve months or be subject to both such fine and
imprisonment in the discretion of the court.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-1. When lawful to possess, use or serve alcoholic liquors.
The provisions of this chapter may not prevent:
(1) A person from keeping and possessing alcoholic liquors in
his or her residence for the personal use of himself or herself,
his or her family, his or her employee or his or her guests if the
alcoholic liquors have been lawfully acquired by him or her;
(2) A person, his or her family, or employee from giving or
serving such alcoholic liquors to guests in the residence, when the
gift or service is not for the purpose of evading the provisions of
this chapter;
(3) The holder of a winery or a farm winery license from
serving complimentary samples of its wine in moderate quantities
for tasting at on the winery or the farm winery premises; and
(4) The holder of a distillery or a mini-distillery license
from serving complimentary samples of its alcoholic liquor in
moderate quantities for tasting at on the distillery or the
mini-distillery premises.
§60-6-2. When lawful to manufacture and sell wine and cider.
The provisions of this chapter may not prevent:
(1) A person from manufacturing wine at his or her residence
for consumption at his or her residence as permitted by section one
of this article;
(2) A person from manufacturing and selling unfermented cider;
(3) A person from manufacturing and selling cider made from
apples produced by him or her within this state to persons holding
distillery licenses, if the manufacture and sale is under the
supervision and regulation of the commissioner;
(4) A person from manufacturing and selling wine made from
fruit produced by him or her within this state to persons holding
winery licenses, if the manufacture and sale is under the
supervision and regulation of the commissioner;
(5) The holder of a winery or a farm winery license from
selling wine produced by it directly to consumers for off-premises
consumption sold at retail at the winery and at one off-farmsite
winery location or the farm winery, as provided in section four,
article three-b of this chapter, or to for any other person who is
licensed under this chapter to sell wine either at wholesale or at
retail: Provided, That the winery may ship wines from the farm
winery without the bonding requirements of a transporter: Provided,
however, That notwithstanding any other provisions of law to the
contrary, an individual or licensee in a state which affords the
wineries of this state equal reciprocal shipping privileges may
ship for personal use and not for resale not more than two cases of
wine per month to any adult resident in this state. For purposes of
this subdivision, "wine" includes dessert wines manufactured
exclusively by natural fermentation and port, sherry and Madeira
wines having an alcoholic content of not more than twenty-two
percent alcohol by volume and which have been matured in wooden barrels or casks; as a wine supplier or distributor; and
(6) The holder of a distillery or a mini-distillery license
from selling alcoholic liquor for off-premises consumption sold at
retail at the distillery or the mini-distillery, as provided in
section four, article three-a of this chapter.
ARTICLE 8. SALE OF WINES.
Part I. Construction and Application of Article.
§60-8-1. Construction and application of article.
(a) Every supplier must use a distributor to distribute wine
for retail sale in this state, except for such sales that occur by
wineries, farm wineries or suppliers holding a direct shipper's
license or farm wineries holding a multicapacity farm winery
license. The provisions of Part II of this article shall have
general application to the distribution and retail sale of wine in
this state. The provisions of Part III of this article shall
relate solely to the distribution and the regulation of suppliers
and distributors of such wines as may be permitted to be sold at
retail pursuant to the provisions of this article. The provisions
of Part IV of this article shall relate solely to the retail sale
of wine in grocery stores as the term "grocery store" is defined in
this article and the retail sale of wine in wine specialty shops as
defined in this article. In the event of any inconsistency of any
provisions of Part II and the provisions of either Part III or Part
IV of this article, the provisions of either Part III or Part IV
shall prevail to the extent of such inconsistency.
(b) In the event of any inconsistency between any of the provisions of this article and provisions of any other article of
this chapter or of this code, the provisions of this article shall
prevail to the extent of any such inconsistency.
(c) To the extent the provisions of this chapter exclusive of
this article may be given application without creating an
inconsistency with the provisions of this article, the provisions
of this chapter, exclusive of this article, shall apply to the same
extent as if this article did not exist.
Part II. Sale of Wine Generally.
§60-8-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
"Commissioner" or "commission" means the West Virginia Alcohol
Beverage Control Commissioner.
"Distributor" means any person whose principal place of
business is within the State of West Virginia and who is engaged in
selling makes purchases from a supplier to sell or distributing
distribute wine to retailers, or grocery stores, private wine bed
and breakfasts, private wine restaurants, private wine spas,
private clubs or wine specialty shops and selling that sells or
distributing distributes nonfortified dessert wine, port, sherry
and Madeira wines to wine specialty shops, private wine
restaurants, private clubs or retailers under authority of this
article and actually maintains a warehouse in this state for the
distribution of wine.
"Fortified wine" shall mean any wine to which brandy or other alcohol has been added and shall include dessert wines which are
not fortified having an alcohol content by volume of at least
fourteen and one-tenths percent and not exceeding sixteen percent.
Provided, That a dessert wine manufactured exclusively by natural
fermentation and having an alcoholic content of not more than
twenty-two percent alcohol by volume and which has been matured in
wooden barrels or casks and manufactured, served or sold by a farm
winery is not a fortified wine.
"Grocery store" means any retail establishment, commonly known
as a grocery store, supermarket, delicatessen, caterer or party
supply store, where food, food products and supplies for the table
are sold for consumption off the premises with average monthly
sales (exclusive of sales of wine) of not less than five hundred
dollars and an average monthly inventory (exclusive of inventory of
wine) of not less than three thousand dollars. The term "grocery
store" shall also include and mean a separate and segregated
portion of any other retail store which is dedicated solely to the
sale of food, food products and supplies for the table for
consumption off the premises with average monthly sales with
respect to such separate or segregated portion (exclusive of sales
of wine) of not less than three thousand dollars and an average
monthly inventory (exclusive of inventory of wine) of not less than
three thousand dollars.
"Licensee" means the holder of a license granted under the
provisions of this article.
"Private wine bed and breakfast" means any business with the sole purpose of providing, in a residential or country setting, a
hotel, motel, inn or other such establishment properly zoned as to
its municipality or local ordinances, lodging and meals to its
customers in the course of their stay at the establishment, which
business also: (1) Is a partnership, limited partnership,
corporation, unincorporated association or other business entity
which as part of its general business purpose provides meals on its
premises to its members and their guests; (2) is licensed under the
provisions of this article as to all of its premises or as to a
separate segregated portion of its premises to serve wine to its
members and their guests when such sale accompanies the serving of
food or meals; and (3) admits only duly elected and approved dues
paying members and their guests while in the company of a member
and does not admit the general public.
"Private wine restaurant" means a restaurant which: (1) Is a
partnership, limited partnership, corporation, unincorporated
association or other business entity which has as its principal
purpose the business of serving meals on its premises to its
members and their guests; (2) is licensed under the provisions of
this article as to all of its premises or as to a separate
segregated portion of its premises to serve wine to its members and
their guests when such sale accompanies the serving of food or
meals; and (3) admits only duly elected and approved dues paying
members and their guests while in the company of a member and does
not admit the general public. Such private clubs that meet the
private wine restaurant requirements numbered (1), (2) and (3) in this definition shall be considered private wine restaurants.
"Private wine spa" means any business with the sole purpose of
providing commercial facilities devoted especially to health,
fitness, weight loss, beauty, therapeutic services and relaxation,
and may be also a licensed massage parlor or a salon with licensed
beauticians or stylists, which business also: (1) Is a
partnership, limited partnership, corporation, unincorporated
association or other business entity which as part of its general
business purpose provides meals on its premises to its members and
their guests; (2) is licensed under the provisions of this article
as to all of its premises or as to a separate segregated portion of
its premises to serve up to two glasses of wine to its members and
their guests when such sale accompanies the serving of food or
meals; and (3) admits only duly elected and approved dues paying
members and their guests while in the company of a member, and does
not admit the general public.
"Retailer" means any person licensed to sell wine at retail to
the public at his or her established place of business for
off-premises consumption and who is licensed to do so under
authority of this article.
"Supplier" means any manufacturer, producer, processor,
winery, farm winery, national distributor or other supplier of wine
who sells or offers to sell or solicits or negotiates the sale of
wine to any licensed West Virginia distributor.
"Tax" includes within its meaning interest, additions to tax
and penalties.
"Taxpayer" means any person liable for any tax, interest,
additions to tax or penalty under the provisions of this article
and any person claiming a refund of tax.
"Varietal wine" means any wine labeled according to the grape
variety from which such wine is made.
"Vintage wine" or "vintage-dated wine" means wines from which
the grapes used to produce such wine are harvested during a
particular year or wines produced from the grapes of a particular
harvest in a particular region of production.
"Wine" means any alcoholic beverage obtained by the natural
fermentation of the natural content of grapes, other fruits or
honey or other agricultural products containing sugar and to which
no alcohol has been added and shall include table wine, and shall
exclude fortified wine and shall also exclude any product defined
as or embraced within the definition of nonintoxicating beer under
the provisions of article sixteen, chapter eleven of this code.
Provided, That "wine" shall include dessert wines manufactured
exclusively by natural fermentation, and port, sherry and Madeira
wines having an alcoholic content of not more than twenty-two
percent alcohol by volume and which have been matured in wooden
barrels or casks if produced by a farm winery as defined in section
five-a, article one of this chapter.
"Wine specialty shop" means a retailer who shall deal
principally in the sale of table wine, certain fortified wines,
nonfortified dessert wines, wine accessories and food or foodstuffs
normally associated with wine and: (1) Who shall maintain a representative number of such wines for sale in his or her
inventory which are designated by label as varietal wine, vintage,
generic and/or according to region of production and the inventory
shall contain not less than fifteen percent vintage or
vintage-dated wine by actual bottle count; and (2) who, any other
provisions of this code to the contrary notwithstanding, may
maintain an inventory of port, sherry and Madeira wines having an
alcoholic content of not more than twenty-two percent alcohol by
volume and which have been matured in wooden barrels or casks.
§60-8-3. Licenses; fees; general restrictions.
(a) Except as to farm wineries as defined by section five-a,
article one of this chapter, no No person may engage in business in
the capacity of a winery, farm winery, supplier, distributor,
retailer, or private wine bed and breakfast, private wine
restaurant, private wine spa or wine specialty shop without first
obtaining a license from the commissioner, nor shall a person
continue to engage in any such activity after his or her license
has expired, been suspended or revoked. No person may be licensed
simultaneously as a distributor and a retailer. No person, except
for a winery or farm winery, may be licensed simultaneously as a
supplier and a retailer. No person may be licensed simultaneously
as a supplier and a private wine bed and breakfast, private wine
restaurant or a private wine spa. No person may be licensed
simultaneously as a distributor and a private wine bed and
breakfast, a private wine restaurant or a private wine spa. No
person may be licensed simultaneously as a retailer and a private wine bed and breakfast, a private wine restaurant or a private wine
spa.
(b) The commissioner shall collect an annual fee for licenses
issued under this article as follows:
(1) One hundred fifty dollars per year for a supplier's
license;
(1) (2) Two thousand five hundred dollars per year for a
distributor's license and each separate warehouse or other facility
from which a distributor sells, transfers or delivers wine shall be
separately licensed and there shall be collected with respect to
each such location the annual license fee of two thousand five
hundred dollars as herein provided;
(2) (3) One hundred fifty dollars per year for a retailer's
license;
(4) Two hundred fifty dollars per year for a wine specialty
shop license, in addition to any other licensing fees paid by a
winery or retailer holding such a license, except for the amount of
the license fee and the restriction to sales of winery or farm
winery wines, a winery or farm winery acting as a wine specialty
shop retailer is subject to all other provisions of this article
which are applicable to a wine specialty shop retailer as defined
in section two of this article;
(3) Fifty (5) One hundred fifty dollars per year for a wine
tasting license;
(4) Fifty dollars for each sales representative of or employed
by a licensed distributor
(6) One hundred fifty dollars per year for a private wine bed
and breakfast license, and each separate bed and breakfast from
which a licensee sells wine shall be separately licensed and there
shall be collected with respect to each such location the annual
license fee of one hundred fifty dollars as herein provided;
(5) (7) Two hundred fifty dollars per year for a private wine
restaurant license, and each separate restaurant from which a
licensee sells wine shall be separately licensed and there shall be
collected with respect to each such location the annual license fee
of two hundred fifty dollars as herein provided;
(6) Twenty-five dollars per year for a West Virginia wine
retailer's license, and each separate retail outlet from which a
West Virginia wine retailer sells West Virginia wine shall be
separately licensed and there shall be collected with respect to
each such location the annual license fee of twenty-five dollars as
herein provided. The holder of such a license may sell no wines
except those produced by West Virginia farm wineries as defined by
section five-a, article one of this chapter. Except for the amount
of the license fee and the restriction to sales of West Virginia
wines, a West Virginia wine retailer is subject to all other
provisions of this article which are applicable to a retailer as
defined in section two of this article;
(8) One hundred fifty dollars per year for a private wine spa
license and each separate private wine spa from which a licensee
sells wine shall be separately licensed and there shall be
collected with respect to each such location the annual license fee of one hundred fifty dollars as herein provided;
(7) (9) One hundred fifty dollars per year for a wine sampling
license issued for a retailer wine specialty shop under subsection
(n) of this section; and
(8) (10) 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;
(11) One hundred fifty dollars per year for a direct shipper's
license for a licensee who sells and ships only wine and two
hundred fifty dollars per for a direct shipper's license who ships
and sells wine, nonfortified dessert wine, port, sherry or Madeira
wines; and
(12) Three hundred dollars per year for a multi-capacity
winery or farm winery license which shall enable the holder to
operate as a retailer, wine specialty shop, supplier and direct
shipper without obtaining an individual license for each capacity.
(c) The license period shall begin on the first day of July of
each year and end on the thirtieth day of June of the following
year and if granted for a less period, the same shall be computed
semiannually in proportion to the remainder of the fiscal year.
(d) No retailer may be licensed as a private club as provided
by article seven of this chapter, except as provided by subsection
(k) of this section.
(e) No retailer may be licensed as a Class A retail dealer in
nonintoxicating beer as provided by article sixteen, chapter eleven
of this code: Provided, That a delicatessen, a caterer or party supply store which is a grocery store as defined in section two of
this article and which is licensed as a Class A retail dealer in
nonintoxicating beer may be a retailer under this article:
Provided, however, That any delicatessen, caterer or party supply
store licensed in both such capacities must maintain average
monthly sales exclusive of sales of wine and nonintoxicating beer
which exceed the average monthly sales of nonintoxicating beer.
(f) A retailer wine specialty shop under this article may also
hold a wine tasting license authorizing such retailer to serve
complimentary samples of wine in moderate quantities for tasting.
Such retailer wine specialty shop shall organize a wine taster's
club, which has at least fifty duly elected or approved dues paying
members in good standing. Such club shall meet on the retailer's
wine specialty shop's premises not more than one time per week and
shall either meet at a time when the premises are closed to the
general public, or shall meet in a separate segregated facility on
the premises to which the general public is not admitted.
Attendance at tastings shall be limited to duly elected or approved
dues paying members and their guests.
(g) A retailer who has more than one place of retail business
shall obtain a license for each separate retail establishment. A
retailer's license may be issued only to the proprietor or owner of
a bona fide grocery store or wine specialty shop.
(h) The commissioner may issue a special license for the
retail sale of wine at any festival or fair which is endorsed or
sponsored by the governing body of a municipality or a county commission. Such special license shall be issued for a term of no
longer than ten consecutive days and the fee therefor shall be two
hundred fifty dollars regardless of the term of the license unless
the applicant is the manufacturer of said wine on a winery or a
farm winery as defined in section five-a, article one of this
chapter, in which event the fee shall be twenty-five fifty dollars
if the event is held on the premises of the winery or farm winery.
The application for such license shall contain such information as
the commissioner may reasonably require and shall be submitted to
the commissioner at least thirty days prior to the first day when
wine is to be sold at such festival or fair. A winery or a farm
winery licensed under this subsection may exhibit, conduct
tastings, not to exceed a reasonable serving, and may sell wine
only for consumption off the premises of such festival or fair. A
special license issued other than to a winery or a farm winery may
be issued to a "wine club" as defined herein below. The festival
or fair committee or the governing body shall designate a person to
organize a club under a name which includes the name of the
festival or fair and the words "wine club". The license shall be
issued in the name of the wine club. A licensee may not commence
the sale of wine as provided in this subsection until the wine club
has at least fifty dues paying members who have been enrolled and
to whom membership cards have been issued. Thereafter, new members
may be enrolled and issued membership cards at any time during the
period for which the license is issued. A wine club licensed under
the provisions of this subsection may sell wine only to its members, and in portions not to exceed eight ounces per serving.
Such sales shall take place on premises or in an area cordoned or
segregated so as to be closed to the general public, and the
general public shall not be admitted to such premises or area. A
wine club licensee under the provisions of this subsection shall be
authorized to serve complimentary samples of wine in moderate
quantities for tasting.
A license issued under the provisions of this subsection and
the licensee holding such license shall be subject to all other
provisions of this article and the rules and orders of the
commissioner relating to such special license: Provided, That the
commissioner may by rule, regulation or order provide for certain
waivers or exceptions with respect to such provisions, rules,
regulations or orders as the circumstances of each such festival or
fair may require, including, without limitation, the right to
revoke or suspend any license issued pursuant to this section prior
to any notice or hearing notwithstanding the provisions of section
twelve of this article: Provided, however, That under no
circumstances shall the provisions of subsection (c) or (d),
section twenty of this article be waived nor shall any exception be
granted with respect thereto.
A license issued under the provisions of this subsection and
the licensee holding such license shall not be subject to the
provisions of subsection (g) of this section.
(i) A license to sell wine granted to a private wine bed and
breakfast, private wine restaurant, private wine spa or a private club under the provisions of this article entitles the operator to
sell and serve wine, for consumption on the premises of the
licensee, when such sale accompanies the serving of food or a meal
to its members and their guests in accordance with the provisions
of this article: Provided, That a licensed private wine bed and
breakfast, private wine restaurant, private wine spa or a private
club may permit a person over twenty-one years of age to purchase
wine, consume wine and recork or reseal, using a tamper resistant
cork or seal, up to two separate bottles of unconsumed wine in
conjunction with serving of food or a meal to its members and their
guests in accordance with the provisions of this article and in
accordance with regulations promulgated by the commissioner for the
purpose of consumption of said wine off premises: Provided,
however, That for this article, food or a meal provided by the
private licensee means that the total food purchase, excluding
beverage purchases, taxes, gratuity or other fees is at least
fifteen dollars: Provided further, That a licensed private wine
restaurant or a private club may offer for sale for consumption off
the premises, sealed bottles of wine produced by a West Virginia
farm winery to its customers provided that no more than one bottle
is sold per each person over twenty-one years of age, as verified
by the private wine restaurant or private club, for consumption off
the premises. Such licensees are authorized to keep and maintain
on their premises a supply of wine in such quantities as may be
appropriate for the conduct of operations thereof. Any sale of
wine so made shall be subject to all restrictions set forth in section twenty of this article. A private wine restaurant may also
be licensed as a Class A retail dealer in nonintoxicating beer as
provided by article sixteen, chapter eleven of this code.
(j) With respect to subsections (h), (i), (n) and (o) of this
section, the commissioner shall promulgate legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code with regard to the form of the applications, the suitability
of both the applicant and location of the licensed premises and
such other legislative rules deemed necessary to carry the
provisions of such subsections into effect.
(k) The commissioner shall promulgate legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code to allow restaurants to serve West Virginia wine with meals,
but not and to sell the wine by the bottle for off-premises
consumption as provided in subsection (i) of this section. Each
restaurant so licensed shall be charged a an additional one
hundred-dollar per year fee. less than that charged for a wine
license to a retail outlet, such fees to be set forth in the
aforementioned rules promulgated pursuant to this subsection.
(l) The commissioner shall establish guidelines to permit West
Virginia wines to be sold in State all stores licensed for retail
sales.
(m) Farm Wineries and farm wineries as defined in section one-
a of this article may advertise off premises as provided in section
seven, article twenty-two, chapter seventeen of this code. and in
any other media, including, but not limited to, newspaper, radio, television, magazines and direct mail solicitation.
(n) A retailer wine specialty shop under this article may also
hold a wine sampling license authorizing the retailer wine
specialty shop to conduct special wine sampling events at a
licensed retail wine specialty shop location during regular hours
of business. The retailer wine specialty shop may serve up to
three complimentary samples of wine, consisting of no more than one
ounce each, to any one consumer in one day. Persons serving the
complimentary samples must be twenty-one years of age and duly
employed by an authorized representative of the licensed retailer
wine specialty shop, winery, farm winery or a representative of a
distributor or registered supplier. Distributor and supplier
representatives attending wine sampling events must be duly
licensed by registered with the commissioner. No licensee,
employee or representative may furnish, give or serve complimentary
samples of wine to any person less than twenty-one years of age or
to a person who is physically incapacitated due to the consumption
of alcoholic liquor or the use of drugs. The retailer wine
specialty shop shall notify and secure permission from the
commissioner for all wine sampling events one month prior to the
event. Wine sampling events may not exceed six hours per calendar
day. Licensees must purchase all wines used during these events
from a West Virginia licensed farm winery or a licensed West
Virginia distributor.
(o) The commissioner may issue special one-day licenses to
duly organized, nonprofit corporations and associations allowing the sale and serving of wine when raising money for athletic,
charitable, educational or religious purposes. The license
application shall contain information as the commissioner may
reasonably require 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 licensed retailer, a
distributor or West Virginia a 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.
(p) The commissioner may issue special licenses to heritage
fairs and festivals allowing the sale, serving and sampling of wine
from a West Virginia licensed
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 licensed
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.
§60-8-4. Liter tax.
There is hereby levied and imposed on all wine sold after the
thirtieth day of April, one thousand nine hundred eighty-three
first day of July, two thousand seven, by suppliers to distributors, and including all wine sold and sent to West Virginia
adult residents from direct shippers, except wine sold to the
commissioner, a tax of twenty-six and four hundred six-thousandths
cents per liter.
Before the sixteenth day of each month thereafter, every
supplier, distributor and direct shipper shall make a written
report under oath to the Tax Commissioner and the commissioner
showing the identity of the purchaser, the quantity, label and
alcoholic content of wine sold by the supplier to West Virginia
distributors or the direct shipper to West Virginia adult residents
during the preceding month and at the same time shall pay the tax
imposed by this article on the wine sold to the distributor or the
West Virginia adult residents during the preceding month to the Tax
Commissioner.
The reports shall contain other information and be in the form
the Tax Commissioner may require. For purposes of this article,
the reports required by this section shall be considered tax
returns covered by the provisions of article ten, chapter eleven of
this code. Failure to timely file the tax returns within five
calendar days of the sixteenth day of each month will also subject
a supplier, distributor and direct shipper to penalties under
section eighteen of this article.
No wine imported, sold or distributed in this state or sold
and shipped to this state by a direct shipper shall be subject to
more than one liter tax.
§60-8-5. Refund or credit of taxes.
The Tax Commissioner shall refund, or credit on a subsequent
return, any tax which has been erroneously or illegally collected.
In the event that a licensee, while the owner of wine on which the
tax imposed by this article has been paid, loses such wine through
fire or casualty, other than breakage occurring on the premises of
the licensee because such wine has been declared by the alcohol
beverage control commissioner to be unfit for sale and the amount
of tax paid exceeds fifty dollars, the Tax Commissioner shall
refund the tax paid. The alcohol beverage control commissioner
shall promulgate regulations establishing the procedure and nature
of proof required in case of any claim for refund or credit.
§60-8-6. License or registration required for sale or shipment of
wine; shipment of limited quantities of wine to adult
residents permitted.
(a) Except as to the commissioner and except as provided in
subsection (b) of this section, no person may offer for sale or
sell wine in this state, or offer wine for shipment into this
state, except to a distributor who is duly licensed under this
article. Every person, whether resident or nonresident in this
state, who is engaged in or desires to engage in the sale or
shipment of wine to a distributor for resale under this article
shall, prior to engaging in such activities, register with the
commissioner. If any such person violates the provisions of this
article, he shall not be permitted to sell, ship or deliver any
wine to a distributor or to the commissioner, or otherwise engage
in the wine business in this state for a period of one year from the date a notice is mailed to such person by the commissioner of
the fact that such person has violated the provisions of this
article. During such one-year period, it shall be unlawful for any
distributor within this state to buy or receive wine from such
person or to have any dealings with such person with respect
thereto. Hearings and appeals on such notices may be had in the
same manner as in the case of revocations of licenses under this
article.
(b) Notwithstanding the provisions of this chapter or any
other law to the contrary, an adult resident or a duly licensed
retailer or distributor of alcoholic beverages in a state or nation
which affords adults and duly licensed retailers and distributors
of this state an equal reciprocal shipping privilege may ship, for
personal use and not for resale, not more than two cases of wine
per month, not to exceed eighteen liters of wine in any month to
any adult resident in this state. Delivery of a shipment pursuant
to this section shall not be deemed to constitute a sale in this
state. any person or winery that is currently licensed and in good
standing in its domicile state as a winery, farm winery, supplier
or retailer of wine and who obtains a direct shipper's license from
the commissioner, as provided in this chapter, may ship up to a
maximum of two cases of wine per month directly to adult West
Virginia residents who are twenty-one years of age or over, for
such adult resident's personal use and consumption and not for
resale. Licensed direct shippers must maintain accurate records of
all shipments sent to West Virginia residents. All shipments of wine into West Virginia by licensed direct shippers shall be made
by a licensed and bonded shipping carrier. Direct shippers and
their carriers shall not ship wine to areas of West Virginia where
wine may not be lawfully sold by county, local or municipal law.
Any holder of a direct shipper's license must collect all taxes,
sales taxes, municipal taxes and the liter tax due to West
Virginia, remit all sales, municipal taxes and the liter tax to the
Tax Commissioner at the close of each month and file a monthly
return reflecting the taxes paid for all sales and shipments to
residents in West Virginia. The commissioner shall prescribe the
forms to be used to file the monthly returns. The shipping
container of any wine sent into or out of this state under this
subsection shall be clearly and conspicuously labeled to indicate
that the package cannot be delivered to: (1) Any person under the
age of twenty-one; or (2) to an intoxicated person; No adult
resident or duly licensed retailer or distributor may advertise the
availability of wines by shipment to residents of this state.
or
(3) to a person physically incapacitated due to the consumption of
nonintoxicating beer, wine or alcoholic liquors or the use of
drugs; and (4) the carriers are required to obtain a written or
electronic signature upon delivery of an adult resident who the
carrier verifies is at least twenty-one years of age or older and
if the carrier is not able to obtain a signature of a verified
adult resident at least twenty-one years of age or older, then the
carrier may not complete the delivery of the wine shipment.
Failure of any holder of a direct shipper's license or such licensee's carrier to abide by the provisions of this chapter and
the commissioner's rules may subject the direct shipper to the
penalties available to the commissioner under section eighteen of
this article.
§60-8-6a. Direct shipper's license.
(a) Before sending any shipment of wine to a resident of West
Virginia, the direct shipper must first:
(1) File a license application with the commissioner with the
appropriate background check information, using forms required by
the commissioner. Criminal background checks will not be required
of applicants licensed in their state of domicile who can provide
a certificate of good standing from their state of domicile;
(2) Pay to the commissioner either the one hundred fifty-
dollar license fee to ship and sell only wine, the two hundred
fifty-dollar license fee to ship and sell wine and nonfortified
dessert wine, port, sherry or Madeira wines, or the three hundred
dollar multi-capacity winery or farm winery license fee;
(3) Obtain a business registration number from the Tax
Commissioner;
(4) Register with the office of the Secretary of State, if a
corporation;
(5) Provide the commissioner a true copy of its current
alcoholic beverage license issued in the state of domicile, proving
that the direct shipper is licensed in its state of domicile as a
winery, farm winery, supplier or retailer of wine;
(6) Obtain from the commissioner a direct shipper's license;
(7) Submit to the commissioner a list of all brands of wine to
be shipped to West Virginia residents; and
(8) Meet all other licensing requirements of this chapter and
provide any other information that the commissioner may reasonably
require.
(b) All direct shipper licensees shall:
(1) Not ship more than two cases of wine per month to any
person. A case is defined as any combination of packages containing
not more than nine liters of wine;
(2) Not ship to any address in an area identified by the
commissioner as a "dry" or local option area where it is unlawful
to sell wine or alcoholic liquors;
(3) Not ship to any licensed suppliers, distributors,
retailers, private wine bed and breakfasts, private wine
restaurants, private wine spas or wine specialty shops;
(4) Not ship wine from overseas or internationally unless it
is first shipped to a licensed supplier or distributor;
(5) Ensure that all containers of wine shipped directly to a
resident in this state are clearly and conspicuously labeled with
the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER
REQUIRED FOR DELIVERY";
(6) File monthly returns to the commissioner and the Tax
Commissioner showing the total of wines, by type, sold and shipped
into West Virginia for the preceding month;
(7) Pay to the Tax Commissioner all sales taxes, municipal
taxes and the liter tax due on sales and shipments to residents of West Virginia in the preceding month, the amount of such taxes to
be calculated as the sales were made in West Virginia at the
location where delivery is made;
(8) Permit the Tax Commissioner or commissioner or their
designees to perform an audit of the direct shipper's records upon
request;
(9) Be deemed to have consented to the jurisdiction of the
commissioner or any other state agency, the Kanawha County circuit
court located in Charleston, West Virginia, concerning enforcement
of this article and any other related laws, rules; and
(10) Provide proof or records to the commissioner, upon
request, that all direct shipments of wine were purchased and
delivered to an adult resident of West Virginia over the age of
twenty-one years of age.
(c) The direct shipper may annually renew its license with the
commissioner by application, paying the direct shipper license fee
and providing the commissioner with a true copy of a current
alcoholic beverage license from the direct shipper's domicile
state.
(d) The commissioner may promulgate rules to effectuate the
purposes of this law.
(e) The commissioner may enforce the requirements of this
section by administrative proceedings to suspend or revoke a direct
shipper's license, and the commissioner may accept payment of a
penalty or an offer in compromise in lieu of suspension, at the
commissioner's discretion.
(f) Shipments of wine direct to consumers in West Virginia
from persons who do not possess a current direct shipper's license
or other permit or license from the commissioner are prohibited.
Any person who knowingly makes, participates in, transports,
imports or receives such an unlicensed and unauthorized direct
shipment is guilty of a felony and shall, upon conviction thereof,
be fined in an amount not to exceed ten thousand dollars per
violation or shall be imprisoned in jail for a period not to exceed
seventy-two hours. Without limitation on any punishment or remedy,
criminal or civil, any person who knowingly makes, participates in,
transports, imports or receives such a direct shipment constitutes
an act that is an unfair trade practice.
§60-8-7. Records; inspection.
Every person who sells or ships wine as a direct shipper to
West Virginia adult residents or who sells or ships wine to a
distributor, and every distributor shall maintain records of all
sales, shipments and deliveries, including invoices, records,
receipts, bills of lading and other pertinent papers required by
the commissioner. All such records shall be preserved for at least
two years. The Tax Commissioner or the commissioner, or both, may
inspect the books, accounts and records of any licensee and
examine, under oath, any officer, agent or employee of any licensee
or any person engaged in the business of selling, shipping or
delivering wine to a distributor. The Tax Commissioner or the
commissioner, or both, may require the production, within this
state at the time and place the Tax Commissioner or the commissioner, or both may designate, of any books, accounts, papers
or records kept within or without the state, or verified copies in
lieu thereof, in order that an examination thereof may be made by
the Tax Commissioner, the commissioner or the tax commissioner's
their duly designated agents.
§60-8-16. Application for license.
Any person desiring a license under this article shall file a
written application for a license with the commissioner and in the
application shall state under oath:
(1) The name of the applicant, including his or her trade name
if any, his or her address and the length of his or her residence
within this state;
(2) The address of the place of business for which the license
is desired, or other description that definitely locates it; and
that the place of business conforms to all health and fire laws and
regulations applicable thereto;
(3) The name of the owner of the premises upon which the
business is to be conducted and, if the owner is not the applicant,
that such applicant is the bona fide lessee of the business;
(4) If the application is for a retailer's license, that the
applicant is the proprietor or owner of a bona fide grocery store,
private wine bed and breakfast, private wine restaurant, private
wine spa or wine specialty shop;
(5) That the applicant intends to carry on the business
authorized by the license for himself or herself or under his or
her immediate supervision or direction;
(6) That the applicant is a citizen of the United States and;
(7) That the applicant is an actual bona fide resident of the
State of West Virginia, and except for those applicants applying
for a supplier's license or a direct shipper's license;
(8) That the applicant is not less than eighteen years of age;
(7) (9) That the applicant has not been convicted of a felony
or other crime involving moral turpitude within the three years
next preceding the filing of the application; and that he or she
has not, within the two years next preceding the filing of the
application, been convicted of violating the liquor laws of any
state or of the United States;
(8) (10) That the applicant has not during the five years next
preceding the date of said application had any license revoked
under this chapter or under the liquor laws of any other state;
(9) (11) If the applicant is a firm, association or
partnership, the application shall state the matters required in
subdivisions (6), (7), and (8), (9) and (10) of this section, with
respect to each of the members thereof, and each of said members
must meet all the requirements in said subdivisions;
(10) (12) If the applicant is a corporation, organized or
authorized to do business in this state, the application shall
state the matters required in subdivisions (6), (7), and (8), (9)
and (10) of this section, with respect to each of the officers and
directors thereof, and any stockholder owning twenty percent or
more of the stock of such corporation and the persons who conduct
and manage the licensed premises for the corporation. Each of said individuals must meet all the requirements provided in those
subdivisions except that the requirements as to citizenship and
residence shall not apply to the officers, directors and
stockholders of a corporation applying for a retailer's license;
and
(11) (13) Any other information that the commissioner may
reasonably require.
The foregoing statements required in an application shall
constitute mandatory prerequisites for the issuance of a license.
The application must be verified by the owner, or each member
of the firm, each partner, if a partnership, each member of the
governing board, if an association, or each officer and director,
if a corporation: Provided, That the application of a corporation
applying for a retailer's license need be verified only by its
president or vice president.
§60-8-18. Revocation, suspension and other sanctions which may be
imposed by the commissioner upon the licensee;
procedure upon refusal, revocation, suspension or
other sanction.
(a) The commissioner may on his or her own motion, or shall on
the sworn complaint of any person, conduct an investigation to
determine if any provisions of this article or any rule promulgated
or any order issued by the commissioner has been violated by any
licensee. After investigation, the commissioner may impose
penalties and sanctions as set forth below.
(1) If the commissioner finds that the licensee has violated any provision of this article or any rule promulgated or order
issued by the commissioner, or if the commissioner finds the
existence of any ground on which a license could have been refused,
if the licensee were then applying for a license, the commissioner
may:
(A) Revoke the licensee's license;
(B) Suspend the licensee's license for a period determined by
the commissioner not to exceed twelve months; or
(C) Place the licensee on probation for a period not to exceed
twelve months; and
(D) Impose a monetary penalty not to exceed one thousand
dollars for each violation where revocation is not imposed.
(2) If the commissioner finds that a licensee has willfully
violated any provision of this article or any rule promulgated or
any order issued by the commissioner, the commissioner shall revoke
the licensee's license.
(b) If a supplier or distributor fails or refuses to keep in
effect the bond required by section twenty-nine of this article,
the commissioner shall automatically suspend the supplier or
distributor's license until the bond required by section twenty of
this article is furnished to the commissioner, at which time the
commissioner shall vacate the suspension.
(c) Whenever the commissioner refuses to issue a license, or
suspends or revokes a license, places a licensee on probation or
imposes a monetary penalty, he or she shall enter an order to that
effect and cause a copy of the order to be served in person or by certified mail, return receipt requested, on the licensee or
applicant.
(d) Any applicant or licensee, as the case may be, adversely
affected by the order has a right to a hearing before the
commissioner, if a written demand for hearing is served upon the
commissioner within ten days following the receipt of the
commissioner's order by the applicant or licensee. Timely service
of a demand for a hearing upon the commissioner operates to suspend
the execution of the order with respect to which a hearing has been
demanded, except an order suspending a license under the provisions
of subsection (b) of this section. The person demanding a hearing
shall give security for the cost of the hearing in a form and
amount as the commissioner may reasonably require. If the person
demanding the hearing does not substantially prevail in such
hearing or upon judicial review thereof as provided in subsections
(g) and (h) of this section, then the costs of the hearing shall be
assessed against him or her by the commissioner and may be
collected by an action at law or other proper remedy.
(e) Upon receipt of a timely served written demand for a
hearing, the commissioner shall immediately set a date for the
hearing and notify the person demanding the hearing of the date,
time and place of the hearing, which shall be held within thirty
days after receipt of the demand. At the hearing the commissioner
shall hear evidence and thereafter enter an order supporting by
findings of facts, affirming, modifying or vacating the order. Any
such order is final unless vacated or modified upon judicial review thereof.
(f) The hearing and the administrative procedure prior to,
during and following the hearing shall be governed by and in
accordance with the provisions of article five, chapter
twenty-nine-a of this code.
(g) Any applicant or licensee adversely affected by an order
entered following a hearing has the right of judicial review of the
order in accordance with the provisions of section four, article
five, chapter twenty-nine-a of this code in the circuit court of
Kanawha County, West Virginia.
(h) The judgment of a the Kanawha County circuit court
reviewing the order of the commissioner is final unless reversed,
vacated or modified on appeal to the Supreme Court of Appeals in
accordance with the provisions of section one, article six, chapter
twenty-nine-a of this code.
(i) Legal counsel and services for the commissioner in all
proceedings in any circuit court and the Supreme Court of Appeals
shall be provided by the Attorney General or his or her assistants
and in any proceedings in any circuit court by the prosecuting
attorney of that county as well, all without additional
compensation.
§60-8-19. To whom licensed manufacturer may sell.
A person who is licensed to manufacture in this state
manufacturer who is licensed as a supplier of wine, as defined in
this article, may sell such wines in this state only to the West
Virginia alcohol beverage control commissioner and to distributors as defined in this article. Such manufacturers may sell such wine
outside of this state for use or resale outside this state. The
provisions of this section shall not apply to farm wineries as
defined by section five-a, article one of this chapter.
§60-8-20. Unlawful acts generally.
It shall be unlawful:
(a) For a supplier or distributor to sell or deliver wine
purchased or acquired from any source other than a person
registered under the provisions of section six of this article or
for a retailer to sell or deliver wine purchased or acquired from
any source other than a licensed distributor or a farm winery as
defined in section five-a, article one of this chapter;
(b) Unless otherwise specifically provided by the provisions
of this article, for a licensee under this article to acquire,
transport, possess for sale or sell wine other than in the original
package;
(c) For a licensee, his or her servants, agents or employees
to sell, furnish or give wine to any person less than twenty-one
years of age, or to a mental incompetent or person who is
physically incapacitated due to the consumption of alcoholic liquor
or the use of drugs: Provided, That the provisions of section
twenty-five-a, article three-a of this chapter shall apply to sales
of wine;
(d) For a licensee to permit a person who is less than
eighteen years of age to sell, furnish or give wine to any person;
(e) For a supplier or a distributor to sell or deliver any brand of wine purchased or acquired from any source other than the
primary source of supply of the wine which granted the distributor
the right to sell the brand at wholesale. For the purposes of this
article, "primary source of supply" means the vintner of the wine,
the importer of a foreign wine who imports the wine into the United
States, the owner of a wine at the time it becomes a marketable
product, the bottler of a wine or an agent specifically authorized
by any of the above-enumerated persons to make a sale of the wine
to a West Virginia distributor: Provided, That no retailer shall
sell or deliver wine purchased or acquired from any source other
than a distributor or farm winery licensed in this state:
Provided, however, That nothing herein is considered to prohibit
sales of convenience between distributors licensed in this state
wherein one distributor sells, transfers or delivers to another
distributor a particular brand or brands for sale at wholesale, of
which brand or brands the other distributor may be temporarily out
of stock.
(f) For a person to violate any reasonable rule or regulation
promulgated by the commissioner under this article;
(g) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be considered to prohibit any
licensee from employing any person who is at least eighteen years
of age to serve in any licensee's lawful employment, including the
sale or delivery of wine under the provisions of this article. With the prior approval of the commissioner, 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, may employ persons who are less than
eighteen years of age but at least sixteen years of age: Provided,
That the person's duties may not include the sale or delivery of
nonintoxicating beer or alcoholic liquors: Provided, however, That
the authorization to employ persons under the age of eighteen years
shall be clearly indicated on the licensee's license.
§60-8-23. Duties and powers of commissioner; rules.
(a) The commissioner is hereby authorized:
(1) To enforce the provisions of this article.
(2) To enter the premises of any licensee at reasonable times
for the purpose of inspecting the premises and determining the
compliance of the licensee with the provisions of this article and
any rules and regulations promulgated by the commissioner.
(3) In addition to rules and regulations relating to the tax
imposed by section four of this article or otherwise authorized by
this article, to promulgate reasonable rules and regulations as he
deems necessary for the execution and enforcement of the provisions
of this article, which may include, but shall not be limited to:
(A) The transport, use, handling, service and sale of wine;
(B) Establishing standards of identity, quality and purity to
protect the public against wine containing deleterious, harmful or impure substances or elements and against spurious or imitation
wines and wines unfit for human consumption; and
(C) Restricting the content of wine advertising so as to
prohibit false or misleading claims, or depictions or descriptions
of wine being consumed irresponsibly or immoderately, or
advertising presentations designed to appeal to persons below the
legal drinking age: Provided, That the commissioner shall not
promulgate any rule or regulation which prohibits the advertising
of a particular brand or brands of wine and the price thereof:
Provided, however, That price shall not be advertised in a medium
of electronic communication subject to the jurisdiction of the
Federal Communications Commission.
(4) To issue subpoenas and subpoenas duces tecum for the
purpose of conducting hearings under the provisions of section
twelve of this article, which subpoenas and subpoenas duces tecum
shall be issued in the time, for the fees, and shall be enforced in
the manner specified in section one, article five, chapter
twenty-nine-a of this code with like effect as if said section was
set forth in extenso in this subdivision.
(b) The authority granted in subdivisions (a), (b) and (d) of
this section may also be exercised by the duly authorized or
designated agents of the commissioner.
(c) Except as may be in this article to the contrary, the
commissioner shall not have authority by rule or regulation or
otherwise to regulate markups, prices, discounts, allowances or
other terms of sale at which wine may be purchased or sold by wine distributors or licensees authorized to sell wine at retail or to
change, nullify or vary the terms of any agreement between a wine
manufacturer or supplier and a wine distributor, but nothing herein
shall be deemed to authorize or permit any discriminatory practice
prohibited by subsection (a), section thirty-one of this article or
any other discriminatory practice.
(d) All rules and regulations promulgated by the commissioner
pursuant to this article shall be so promulgated in accordance with
the provisions of chapter twenty-nine-a of this code. The rules
and regulations promulgated pursuant to the prior enactment of this
article and not disapproved by the Legislature shall remain in full
force and effect to the extent that such rules and regulations are
not abrogated and made null and void by the reenactment of this
sections of this article during the regular session of the
Legislature for the year one thousand nine hundred eighty-six. Any
rule or regulation which is inconsistent or contrary in any way to
any provision of this article now or hereafter enacted are null and
void.
§60-8-24. Disposition of revenue.
(a) The first two hundred thousand dollars of fees collected
under the provisions of this article during each fiscal year shall
be deposited into a special revolving fund designated the Tax
Commissioner's Wine Tax Administration Fund, which fund is hereby
created in the State Treasury. The Tax Commissioner's Wine Tax
Administration Fund shall be used by the Tax Commissioner to
administer and support direct and indirect costs of the Tax Division for administration, collection, including compliance
enforcement, auditing and distribution of taxes on wine imposed by
this code and for which the Tax Commissioner has administration,
collection, compliance enforcement, auditing or distribution
functions or responsibilities.
(b) After collection and deposit of the first two hundred
thousand dollars, as specified in subsection (a) of this section,
all fees collected by the Alcohol Beverage Control Commissioner,
under the provisions of this article shall next be deposited in the
State Treasury and credited to a special fund to be known as the
Wine License Special Fund. All moneys in such the Wine License
Special Fund may be expended only by the Alcohol Beverage Control
Commissioner for the administration of the provisions of this
article or, to the extent of any excess, for the administration of
this chapter or as may be appropriate by law.
(c) The liter tax imposed and collected by the Tax
Commissioner under the provisions of this article shall be paid
into the State Treasury and deposited in the General Revenue Fund
of the state.
(d) All moneys collected by the Alcohol Beverage Control
Commissioner and the Tax Commissioner under the provisions of this
article shall be remitted to the State Treasury monthly within
fifteen days after the end of each month.
§60-8-25. Criminal penalties; public nuisances.
(a) Any person who violates any provision of this article or
who makes any false statement concerning any material fact in submitting application for license or for a renewal of a license or
in any hearing concerning the suspension or revocation thereof, or
who commits any of the acts herein declared to be unlawful, is
guilty of a misdemeanor and, upon conviction thereof, shall for
each offense be fined not less than twenty-five one hundred dollars
nor more than five hundred one thousand dollars, or imprisoned in
the county jail not less than thirty days nor more than six months,
or both fined and imprisoned. Magistrate courts shall have
concurrent jurisdiction with the circuit court for the trial of all
misdemeanors arising under this article.
(b) The provisions of sections sixteen and seventeen, article
six of this chapter shall apply to persons violating the provisions
of this article to the same extent as if such provisions were set
forth in extenso herein.
§60-8-26. Forfeiture of bond.
On conviction of a violation of any provision of this article,
upon the revocation of a license in accordance with section
eighteen of this article or upon finding of failure of a taxpayer
to pay all taxes prescribed by section four of this article, which
conviction, revocation or finding has become final, the licensee,
former licensee or company registered and licensed as a supplier or
distributor, as the case may be, shall forfeit any bond required by
section twenty-nine of this article. The penal sum of any bond
forfeited shall forthwith be paid to the State Treasurer and
credited to the General Revenue Fund of this state. Such sum may
be collected by an action at law or other appropriate remedy.
Part III. Wine Distribution.
§60-8-28. Wine brand licensing and registration and review of
wine labels.
Every distributor and farm winery supplier offering wine for
sale under this article shall register with the tax commissioner
each label
three one hundred dollars for the registration of such
label wine brand for three years, such fee shall be returned to the
supplier if the wine is not registered for sale. No wine brand may
be sold under this article unless its label has all of such wine
brand's labels intended for sale in the state have been registered
and reviewed by the commissioner. Every supplier offering various
wine labels of a registered and reviewed wine brand for sale in the
state shall submit all of the wine brand's labels intended for sale
in the state for registration prior to the sale of such wine labels
in the state for no additional fees. After the expiration of three
years, the supplier may renew the registered wine brand by paying
a one hundred-dollar renewal fee for three more years and every
three years thereafter. Prior to registration of any wine labels,
the commissioner shall review the wine labels. This review shall
include, but not be limited to, a review of the alcohol content,
corporate or product information, marketing and advertising so that
the wine label is not intended to be marketed to persons less than
twenty-one years of age. The commissioner shall remove all
nonrenewed wine labels and any licensee who sells wine with
nonrenewed wine labels shall be subject to the penalties under section eighteen of this article. Failure to register, obtain
certification and pay the annual fee for a wine brand and failure
to register the wine brand's labels will subject the supplier to
penalties under section eighteen of this article.
§60-8-29. Bond required of distributors and suppliers.
Each applicant for a distributor's license or each company
registered as a supplier supplier's license shall furnish at the
time of application a bond with a corporate surety authorized to
transact business in this state, payable to the state, and
conditioned on the payment of all taxes and fees herein prescribed
and on the faithful performance of and compliance with the
provisions of this article.
The penal sum of the bond for distributors shall be ten
thousand dollars and the penal sum of the bond for suppliers shall
be twenty-five ten thousand dollars. Each distributor shall be
required to furnish separate bond for each location or separate
place of business from which wine is distributed, sold or
delivered. Revocation or forfeiture of the bond furnished for any
such location may, in the discretion of the tax commissioner, cause
the revocation or forfeiture of all such bonds furnished by the
distributor suffering such revocation or forfeiture.
§60-8-30. Exclusive franchise agreements prohibited.
It shall be illegal for any manufacturer, winery, farm winery
or supplier to enter into any exclusive franchise agreement with
any distributor whereby any such distributor is given the exclusive
right within this state or in any given territory within this state to distribute the product or products of such manufacturer which
are to be sold or distributed pursuant to the provisions of this
article. Further, all agreements between a manufacturer, winery,
farm winery or supplier and a distributor must be in writing and on
file with the commissioner and all such agreements must provide for
termination of either party provided that notice of termination is
provided in writing and by certified mail to the commissioner and
all parties to the agreement ninety days prior to the termination
date. Once the notice has been received by either party, the
distributor shall: (1) Use the ninety-day period to deplete such
distributor's affected wine inventory; or (2) reach some agreement
with the manufacturer, winery, farm winery or supplier to return
unused salable wine inventory or receive payment for unused salable
wine inventory. No new distributor shall be appointed until the
conclusion of the ninety days or as the parties have otherwise
agreed to complete the termination. For the purposes of this
article, "salable" shall mean inventory fit for human consumption
or as otherwise determined by the commissioner.
§60-8-31. Other unlawful acts.
It is unlawful:
(a) For a distributor to discriminate in price, sales
agreements, terms or services offered to retailers, licensees or to
any licensee under article seven of this chapter and further it is
unlawful for a supplier to discriminate against a distributor in
price, sales agreements, terms or services. "Discriminate", as
used in this section, means the granting of more favorable prices, agreements, terms or services to one person than to another.
(b) For a distributor, his or her agents, servants or
employees to transport or deliver wine to any retail licensee or to
any licensee under article seven of this chapter on Sunday or any
general election day.
(c) For a distributor to sell wines authorized by this article
to licensees under article seven of this chapter at a price which
is greater than the price at which such wines are sold and
distributed to retailers under this article.
Part IV. Wine Retailers.
§60-8-32. Where wine may be sold at retail.
Except as to sales permitted to be made by wineries or farm
wineries as defined by section five-a, article one of this chapter,
that obtain a retailer's license, private wine bed and breakfasts,
private wine restaurants and private wine spas, wine sold pursuant
to this article may be sold at retail only by the commissioner and
in and by grocery stores retailers and wine specialty shops as
defined by section two of this article.
§60-8-34. When retail sales prohibited.
It shall be unlawful for a retailer, or a farm winery, wine
specialty shop retailer, private wine bed and breakfast, private
wine restaurant or private wine spa licensee, his or her servants,
agents or employees to sell or deliver wine between the hours of
two o'clock a.m. and one o'clock p.m. on Sundays, or between the
hours of two o'clock a.m. and seven o'clock a.m. on weekdays and
Saturdays.;
And,
Eng. Rev. Com. Sub. for Senate Bill No. 712--A Bill to amend
and reenact §11-10-5s of the Code of West Virginia, 1931, as
amended; to amend and reenact §17-22-7 of said code; to amend and
reenact §60-1-5a of said code; to amend and reenact §60-3A-18 of
said code; to amend and reenact §60-4-2, §60-4-3, §60-4-3a, §60-4-
15 and §60-4-22 of said code; to amend said code by adding thereto
a new section, designated §60-4-3b; to amend and reenact §60-6-1
and §60-6-2 of said code; to amend and reenact §60-8-1, §60-8-2,
§60-8-3, §60-8-4, §60-8-5, §60-8-6, §60-8-7, §60-8-16, §60-8-18,
§60-8-19, §60-8-20, §60-8-23, §60-8-24, §60-8-25, §60-8-26, §60-8-
28, §60-8-29, §60-8-30, §60-8-31, §60-8-32 and §60-8-34 of said
code; and to amend said code by adding thereto a new section,
designated §60-8-6a, all relating to alcohol beverage regulation
generally; the regulation of wine; requiring farm wineries to pay
taxes and license fees, equalizing wineries with distilleries and
farm wineries with mini-distilleries as to signage, licensing,
license fees, sales and the use of suppliers and distributors;
providing licensing procedure for wineries, farm wineries,
suppliers or retailers to sell and direct ship wine for personal
consumption by an adult over twenty-one years of age; providing
licensing requirements and registration procedures for wine
suppliers, subject to a review of all wine labels; amending the
definition of "wine"; adding a private wine bed and breakfast
license and a private wine spa license; permitting adult patrons at
private wine bed and breakfasts, private wine restaurants, private wine spas and private clubs to recork or reseal, with a tamper
resistant cork or seal, for off-premises consumption up to two
bottles of unconsumed wine when the sale of wine is accompanied by
food or a meal; extending hours retail licensees may sell liquor;
permitting a private wine restaurant or a private club to sell from
its inventory, for off-premises consumption, one bottle of wine per
adult; equalizing certain license fees; adding protections for
wineries, farm wineries, suppliers and distributors by requiring
written agreements between the parties, a notice of termination and
ninety days for a party to either deplete wine inventories or reach
some other agreement; and permitting sharing of tax, licensing and
enforcement information between the Tax Commissioner and the
Alcohol Beverage Control Commissioner.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Revised Committee Substitute for Senate Bill No.
712, as amended by the House of Delegates, was then put upon its
passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie,
Minard, Oliverio, Plymale, Prezioso, Stollings, Wells, Yoder and
Tomblin (Mr. President)--26.
The nays were: Boley, Facemyer, Love, Sprouse, Sypolt, Unger
and White--7.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Rev. Com. Sub. for S. B. No. 712) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2498, Relating to sexual
offenses involving children.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Miley, Burdiss and Azinger.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2007--A Bill making
appropriations of public money out of the Treasury in accordance
with section fifty-one, article VI of the Constitution.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 2007) was then read a
second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
B
y striking out everything after the enacting clause and
inserting in lieu thereof the provisions of Engrossed Committee
Substitute for Senate Bill No. 65.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2007) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2007) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2007) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 175, Creating
Clandestine Drug Laboratory Remediation Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 203, Creating Purchasing Improvement Fund.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 447, Regulating opioid
treatment centers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after
the enacting section and
inserting in lieu thereof the following:
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules, in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
that are necessary and proper to effectuate the purposes of this
chapter. The secretary may appoint or designate advisory councils
of professionals in the areas of hospitals, nursing homes, barbers
and beauticians, postmortem examinations, mental health and mental
retardation centers and any other areas necessary to advise the
secretary on rules.
The rules may include, but are not limited to, the regulation
of:
(a) Land usage endangering the public health: Provided, That
no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the individual
tracts, lots or parcels exceed two acres each in total surface area
and which individual tracts, lots or parcels have an average
frontage of not less than one hundred fifty feet even though the
total surface area of the tract, lot or parcel equals or exceeds
two acres in total surface area, and which tracts are sold, leased
or utilized only as single family dwelling units. Notwithstanding
the provisions of this subsection, nothing in this section may be
construed to abate the authority of the department to: (1)
Restrict the subdivision or development of a tract for any more
intense or higher density occupancy than a single family dwelling
unit; (2) propose or enforce rules applicable to single family
dwelling units for single family dwelling unit sanitary sewerage
disposal systems; or (3) restrict any subdivision or development
which might endanger the public health, the sanitary condition of
streams or sources of water supply;
(b) The sanitary condition of all institutions and schools,
whether public or private, public conveyances, dairies,
slaughterhouses, workshops, factories, labor camps, all other
places open to the general public and inviting public patronage or
public assembly, or tendering to the public any item for human
consumption, and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary
conditions of streams, sources of water supply, sewerage facilities
and plumbing systems and the qualifications of personnel connected
with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design
of all water systems, plumbing systems, sewerage systems, sewage
treatment plants, excreta disposal methods and swimming pools in
this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water
systems must conform in order to prevent adverse effects on the
health of individuals, and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will
not adversely affect the health of the consumer. The rule shall
contain provisions to protect and prevent contamination of
wellheads and well fields used by public water supplies so that
contaminants do not reach a level that would adversely affect the
health of the consumer;
(2) The minimum requirements for: Sampling and testing;
system operation; public notification by a public water system on
being granted a variance or exemption or upon failure to comply
with specific requirements of this section and rules promulgated
under this section; recordkeeping; laboratory certification; as
well as procedures and conditions for granting variances and
exemptions to public water systems from state public water systems
rules; and
(3) The requirements covering the production and distribution
of bottled drinking water and may establish requirements governing
the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness,
proscription of additives, proscription of sale and other
requirements in accordance with article seven of this chapter as
are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency
medical service attendants and emergency medical care
technician-paramedics; the designation of the health care
facilities, health care services and the industries and occupations
in the state that must have emergency medical service attendants
and emergency medical care technician-paramedics employed and the
availability, communications and equipment requirements with
respect to emergency medical service attendants and to emergency
medical care technician-paramedics: Provided, That any regulation
of emergency medical service attendants and emergency medical care
technician-paramedics shall not exceed the provisions of article
four-c of this chapter;
(g) The health and sanitary conditions of establishments
commonly referred to as bed and breakfast inns. For purposes of
this article, "bed and breakfast inn" means an establishment
providing sleeping accommodations and, at a minimum, a breakfast
for a fee: Provided, That the secretary may not require an owner
of a bed and breakfast providing sleeping accommodations of six or
fewer rooms to install a restaurant style or commercial food
service facility: Provided, however, That the secretary may not
require an owner of a bed and breakfast providing sleeping
accommodations of more than six rooms to install a restaurant-type or commercial food service facility if the entire bed and breakfast
inn or those rooms numbering above six are used on an aggregate of
two weeks or less per year;
(h) Fees for services provided by the Bureau for Public Health
including, but not limited to, laboratory service fees,
environmental health service fees, health facility fees and permit
fees;
(i) The collection of data on health status, the health system
and the costs of health care;
(j) Opioid treatment programs duly licensed and operating
under the requirements of chapter twenty-seven of this code. The
Health Care Authority shall develop new certificate of need
standards, pursuant to the provisions of article two-d of this
chapter
, that are specific for opioid treatment program facilities.
No applications for a certificate of need for opioid treatment
programs shall be approved by the Health Care Authority as of the
effective date of the two thousand seven amendments to this
subsection.
The secretary shall promulgate revised emergency rules
to govern such licensed programs: Provided, That there shall be a
moratorium on the licensure of new opioid treatment programs that
do not have a certificate of need as of the effective date of the
two thousand seven amendments to this subsection, which shall
continue until the Legislature determines that there is a necessity
for additional opioid treatment facilities in West Virginia. The
secretary files shall file revised emergency rules with the
secretary of state to regulate such opioid programs in compliance with subsections (1) through (9), inclusive, of this section:
Provided, That any opioid treatment program facility that has
received a certificate of need pursuant to article two-d of this
chapter by the Health Care Authority shall be permitted to proceed
to license and operate the facility. All existing opioid treatment
programs shall be in compliance within one hundred eighty days of
the effective date of this rule; and the revised emergency rules as
required herein. The revised emergency rules shall provide at a
minimum:
(1) That the initial assessment prior to admission for entry
into the opioid treatment program shall include an initial drug
test to determine whether an individual is either opioid addicted
or presently receiving methadone for an opioid addiction from
another opioid treatment program. The patient may be admitted to
the program if there is a positive test for either opioids or
methadone or there are objective symptoms of withdrawal, or both,
and all other criteria set forth in the rule for admission into an
opioid treatment program are met: Provided, That admission to the
program may be allowed to the following groups with a high risk of
relapse without the necessity of a positive test or the presence of
objective symptoms: Pregnant women with a history of opioid abuse,
prisoners or parolees recently released from correctional
facilities, former clinic patients who have successfully completed
treatment but who believe themselves to be at risk of imminent
relapse and HIV patients with a history of intravenous drug use.
(2) That, within seven days of the admission of a patient, the opioid treatment program shall complete an initial assessment and
an initial plan of care. Subsequently, the opioid treatment
program shall develop a treatment plan of care by the thirtieth day
after admission and attach to the patient's chart no later than
five days after such plan is developed. The treatment plan is to
reflect that detoxification is an option for treatment and
supported by the program.
(3) That each opioid treatment program shall report and
provide statistics to the Department of Health and Human Resources
at least semiannually which includes the total number of patients;
the number of patients who have been continually receiving
methadone treatment in excess of two years, including the total
number of months of treatment for each such patient; the state
residency of each patient; the number of patients discharged from
the program, including the total months in the treatment program
prior to discharge and whether the discharge was for:
(A) Termination or disqualification;
(B) Completion of a program of detoxification;
(C) Voluntary withdrawal prior to completion of all
requirements of detoxification as determined by the opioid
treatment program; or
(D) An unexplained reason.
(4) That random drug testing of patients be conducted during
the course of treatment. For purposes of these rules, random drug
testing shall mean that each patient of an opioid treatment program
facility has a statistically equal chance of being selected for testing at random and at unscheduled times. Any refusal to
participate in a random drug test shall be considered a positive
test: Provided, That nothing contained in this section or the
legislative rules promulgated in conformity herewith will preclude
any opioid treatment program from administering such additional
drug tests as determined necessary by the opioid treatment program.
(5) That all random drug tests conducted by an opioid
treatment program shall, at a minimum, test for the following:
(A) Opiates, including oxycodone at common levels of dosing;
(B) Methadone and any other medication used by the program as
an intervention;
(C) Bezodiazepines, including diazepam, lorazepan, clonazepam
and alprazolam;
(D) Cocaine;
(E) Methamphetamine or amphetamine; and
(F) Other drugs determined by community standards, regional
variation or clinical indication.
A positive test shall be a test that results in the presence
of any drug or substance listed in this schedule and any other drug
or substance prohibited by the opioid treatment program;
(6) That a positive drug test result after the first six
months in an opioid treatment program shall result in the
following:
(A) Upon the first positive drug test result, the opioid
treatment program shall:
(1) Provide mandatory and documented weekly counseling to the patient, which shall include weekly meetings with a counselor who
is licensed, certified or enrolled in the process of obtaining
licensure or certification in compliance with the rules and on
staff at the opioid treatment program;
(2) Immediately revoke the take home methadone privilege for
a minimum of thirty days; and
(B) Upon a second positive drug test result within six months
of a previous positive drug test result, the opioid treatment
program shall:
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or
certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take home methadone privilege for
a minimum of sixty days; and
(3) Provide mandatory documented treatment team meetings with
the patient.
(C) Upon a third positive drug test result within a period of
six months the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or
certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take home methadone privilege for a minimum of one hundred twenty days; and
(3) Provide mandatory and documented treatment team meetings
with the patient which will include, at a minimum: The need for
continuing treatment; a discussion of other treatment alternatives;
and the execution of a contract with the patient advising the
patient of discharge for continued positive drug tests.
(D) Upon a fourth positive drug test within a six-month
period, the patient shall be immediately discharged from the opioid
treatment program or, at the option of the patient, shall
immediately be provided the opportunity to participate in a 21-day
detoxification plan, followed by immediate discharge from the
opioid treatment program.
(7) That the opioid treatment program must report and provide
statistics to the Department of Health and Human Resources
demonstrating compliance with the random drug test rules including
confirmation that:
(A) The random drug tests were truly random in regard to both
the patients tested and to the times random drug tests were
administered by lottery or some other objective standard so as not
to prejudice or protect any particular patient;
(B) The total number and the number of positive results; and
(C) The number of expulsions from the program.
(8) That all opioid treatment facilities be open for business
seven days per week: Provided, That the opioid treatment center
may be closed for eight holidays and two training days per year.
(9) That the Office of Health Facility Licensure and Certification
develop policies and procedures in conjunction with
the Board of Pharmacy that will allow access to the Prescription
Drug Registry maintained by the Board of Pharmacy before
administration of methadone or other treatment in an opioid
treatment program, after any positive drug test and at each ninety-
day treatment review to ensure the patient is not seeking
prescription medication from multiple sources.
(k) Other health-related matters which the department is
authorized to supervise and for which the rule-making authority has
not been otherwise assigned.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 447, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 447) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2007, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 582, Creating Real Estate
Division in Department of Administration.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages five and six, section two, lines seven through
thirty-two, by striking out all of subsection (b) and inserting in
lieu thereof the following:
(b) The provisions of the article, except as to office space,
do not apply to the Division of Highways of the Department of
Transportation.
(c) The provisions of this article do not apply to:
(1)
Public lands, rivers and streams acquired, managed or
which title is vested in or transferred to the Division of Natural
Resources of the Department of Commerce, pursuant to section seven,
article one, chapter twenty of this code and section two, article
five of said chapter;
(2) The Higher Education Policy Commission;
(3) The West Virginia Council for Community and Technical
College Education;
(4) The institutional boards of governors in accordance with
the provisions of subsection (v), section four, article five,
chapter eighteen-b of this code;
(5) The real property held by the Department of Agriculture,
including all institutional farms, easements, mineral rights,
appurtenances, farm equipment, agricultural products, inventories,
farm facilities and operating revenue funds for those operations;
or
(6) The real property held by the West Virginia State
Conservation Committee, including all easements, mineral rights,
appurtenances and operating revenue funds for those operations.;
And,
On pages forty through fifty-one, by striking out all of
section one and inserting in lieu thereof a new section one, to
read as follows:
§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 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 West Virginia Public Employees
Grievance Board provided for in article twenty-nine, chapter
eighteen of this code and article six-a, chapter twenty-nine three,
chapter six-c 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; and
(12) Real Estate Division provided in article ten, chapter
five-a 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 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;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs Workforce West Virginia
provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code.
(c) The Economic Development Authority provided 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) Workers' Compensation Commission provided in article one,
chapter twenty-three of this code is continued as an independent
agency within the executive branch.
(f) (e) 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.
(g) (f) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are 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.
(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 incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two,
chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight 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 incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided in chapter twenty-five of
this code;
(8) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided in article twelve,
chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a 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 incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine 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 incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(l) (k) 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 position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(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, 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. All boards that are appellate bodies or are independent
decisionmakers shall not have their appellate or independent decision-making status affected by the enactment of this chapter.
(n) (m) Any department previously transferred to and
incorporated in a department by prior enactment of this section
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.
(o) (n) 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.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 582, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 582) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 582) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 613, Relating to crossbow restrictions.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 753, Filling vacancies in nominations for
general elections.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 758, Supplementing and amending
appropriations from federal funds to Division of Human Services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 759, Making supplemental appropriation to
Division of Health and Board of Examiners for Registered
Professional Nurses.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
submitting the annual probation and parole report, which was
received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 9, 2007
Senate Executive Message No. 5
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
As empowered by Section 11, Article VII of the Constitution of
the State of West Virginia and section sixteen, article one,
chapter five of the Code of West Virginia, I extended relief to the
persons named on the attached report. I submit this report in
accordance with the above-cited provisions for the period March 11,
2006, through March 9, 2007.
Very truly yours,
Joe Manchin III,
Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR JOE MANCHIN III
FOR THE PERIOD MARCH 11, 2006, THROUGH MARCH 9, 2007
Mlotok, Bianca Nathali
Decided August 8, 2006
In 1994, Ms. Mlotok pleaded guilty to four misdemeanor counts
of aiding and abetting the fraudulent use of a credit card. On
October 22, 1994, she was sentenced by the Magistrate Court of
Monongalia County to four twelve-hour jail terms to be served
concurrently and was assessed fines and costs. Ms. Mlotok
successfully fulfilled the terms imposed on her by the court.
Since that time, Ms. Mlotok has maintained herself as a
responsible, law-abiding citizen, leading a productive and
contributing lifestyle. The West Virginia Parole Board unanimously recommended that Ms. Mlotok be granted a full, unconditional and
complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Bianca Nathali Mlotok for the
offense of aiding and abetting the fraudulent use of a credit card.
Terango, Michael Anthony
Decided August 8, 2006
In 1995, Mr. Terango was found guilty of one misdemeanor count
of shoplifting first offense. On February 21, 1995, he was
assessed fines and costs by the Municipal Court, City of
Morgantown. Mr. Terango fulfilled the requirements of the court.
Since that time, Mr. Terango has maintained himself as a
responsible, law-abiding citizen, leading a productive and
contributing lifestyle. The West Virginia Parole Board unanimously
recommended that Mr. Terango be granted a full, unconditional and
complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Michael Anthony Terango for
the offense of shoplifting first offense.
NO MEDICAL RESPITES WERE GRANTED
DURING THIS PERIOD
__________
On motion of Senator Chafin, the Senate recessed until 5 p.m.
today.
Upon expiration of the recess, the Senate reconvened.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports
had been filed at 5:22 p.m. today:
Eng. Senate Bill No. 438, Relating to Investment Management
Board.
Eng. Senate Bill No. 454, Renaming and restructuring Bureau of
Employment Programs.
And,
Eng. Senate Bill No. 589, Expanding powers and duties of
Director of Personnel.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 336, Relating to higher education
generally.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Doyle, Iaquinta and Anderson.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Plymale, Edgell and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 738, Requiring legislative
approval of proposed new or revised existing toll by Parkways
Authority.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Moore, Long and Porter.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Chafin, Stollings and Caruth.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Foster, Jenkins and Sypolt.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Com. Sub. for Senate Concurrent Resolution No. 54, Requesting
Joint Committee on Government and Finance study sequestration of
carbon dioxide.
Senate Concurrent Resolution No. 65, Requesting Joint
Committee on Government and Finance study developing tourism
attractions in less-developed counties.
Senate Concurrent Resolution No. 68, Requesting Joint
Committee on Government and Finance study economic impact of state
and federal prevailing wage laws.
Senate Concurrent Resolution No. 80, Requesting Joint
Committee on Government and Finance study cost and benefits of
daily physical education classes for students.
Senate Concurrent Resolution No. 82, Requesting Joint
Committee on Government and Finance appoint select interim
committee to study health care reform options.
House Concurrent Resolution No. 22, Designating the River City
Youth Ballet Ensemble as the Official West Virginia State Youth
Ballet.
And,
House Concurrent Resolution No. 34, Urging the West Virginia
Congressional Delegation to support legislation calling for federal
approval of extension of the Lewis and Clark National Historic
Trail.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Committee Substitute for Senate Concurrent Resolution No.
54 contained in the preceding report from the Committee on Rules
was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 65 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 68 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 80 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 82 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 22 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 34 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Edgell, from the Committee on Agriculture, submitted
the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 83 (originating in the
Committee on Agriculture)--Requesting the Joint Committee on
Government and Finance study financial incentives for permitting
public recreational use of certified managed timberland.
Whereas, The State of West Virginia's rural character, natural
wonders, scenic beauty and recreational opportunities combine to create an exceptional quality of life for its citizens; and
Whereas, West Virginia landscapes serve to support vital
timber and agricultural industries and draw tourists from around
the world; and
Whereas, West Virginia's public and private forest lands
provide West Virginians hunting, fishing, hiking, sight-seeing,
photography, cross-country skiing and other recreational
opportunities important to their health and well-being; and
Whereas, The Division of Natural Resources seeks to provide
additional lands for West Virginians to engage in such recreational
opportunities; and
Whereas, The West Virginia Legislature has found and declared
in section eleven, article one-c, chapter eleven of the West
Virginia Code that the public welfare is enhanced by encouraging
and sustaining the abundance of high quality forest land within the
state; and
Whereas, Economic pressures may force industrial, residential
or other land development inconsistent with sustaining the forests;
and
Whereas, Tax policy should provide an incentive for private
owners of forest land to preserve the character and use of land as
forest land and to make management decisions which enhance the
quality of the future forest; and
Whereas, In exercising the authority granted to it by the
provisions of section fifty-three, article VI of the Constitution
of West Virginia, the Legislature declared and provided that managed timberland shall be valued as managed timberland when it is
managed under a cooperative contract with the division of forestry;
and
Whereas, Eighty-three percent of West Virginia's forests are
owned by nonindustrial private landowners; and
Whereas, The Division of Natural Resources seeks to engage in
the leasing of managed timberlands to provide all West Virginians
with new opportunities for recreational activities important to
their health and well-being; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study financial incentives for permitting public
recreational use of certified managed timberland; and, be it
Further Resolved, That the Joint Committee on Government and
Finance study the tax rate and assessment incentive methods for
managed timberland areas to promote the opening of managed
timberlands for these recreational opportunities; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, on
its finding, 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Larry J. Edgell,
Chair.
At the request of Senator Edgell, unanimous consent being
granted, the resolution (S. C. R. No. 83) contained in the
preceding report from the Committee on Agriculture was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 84 (originating in the
Committee on Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance study the need for
legislation that would permit a tractor-semitrailer combination
with six axles and two additional brakes, and carrying a maximum
gross weight of 97,000 pounds, to be operated on the system of
interstate and defense highways in this state.
Whereas, The nation's cost of shipping freight has a profound
effect on the country's economy; and
Whereas, The share of the nation's freight costs borne by
trucking is slightly above 80 percent; and
Whereas, A study by the National Research Council foresees
that tractor-trailer productivity could be improved substantially
by permitting the operation of combinations with six or more axles
and an increased payload without having an adverse impact on roads
and bridges; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the need for legislation that would permit a
tractor-semitrailer combination with six axles and two additional
brakes, and carrying a maximum gross weight of 97,000 pounds, to be
operated on the system of interstate and defense highways in this
state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature 2008, 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.
And,
Senate Concurrent Resolution No. 85 (originating in the
Committee on Transportation and Infrastructure)--Requesting the Joint Committee on Government and Finance study the need for
legislation facilitating the acquisition of a failed water or sewer
utility by a capable water or sewer public utility that is
financially, managerially and technically capable of acquiring and
operating the failed water or sewer utility in compliance with
applicable statutory and regulatory standards.
Whereas, There is an increasing number of water or sewer
utilities of this state that are in violation of statutory or
regulatory standards which affect the safety, adequacy, efficiency
or reasonableness of the service provided by those water or sewer
utilities; and
Whereas, There is often a failure to comply, within a
reasonable period of time, with any order of the Department of
Environmental Protection or Bureau for Public Health or the Public
Service Commission concerning the safety, adequacy, efficiency or
reasonableness of service, including, but not limited to, the
availability of water, the potability of water, the palatability of
water or the provision of water at adequate volume and pressure;
and
Whereas, Many of these failed water or sewer utilities cannot
reasonably be expected to furnish and maintain adequate, efficient,
safe and reasonable service and facilities in the future;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the need for legislation facilitating the acquisition of a failed water or sewer utility by a capable water
or sewer public utility that is financially, managerially and
technically capable of acquiring and operating a failed water or
sewer utility in compliance with applicable statutory and
regulatory standards; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature 2008, 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.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 84 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put.
The result of the voice vote being inconclusive, Senator Facemyer demanded a division of the vote.
A standing vote being taken, there were twenty-four "yeas" and
seven "nays".
Whereupon, Senator Tomblin (Mr. President) declared the
resolution (S. C. R. No. 84) adopted.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 85 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the sixth order of business.
At the request of Senator Facemyer, and by unanimous consent,
Senators Facemyer and Hall offered the following resolution from
the floor:
Senate Resolution No. 50--Recognizing the accomplishments of
the Hurricane High School Red Hot Show Choir.
Whereas, The Hurricane High School Red Hot Show Choir, under
Director Kimberly Edwards and Choreographer Deana Boggs-McNeil, is
an accomplished group of 56 young musicians who enjoy entertaining
audiences across the nation with their remarkable choral sound and
impressive choreography; and
Whereas, The Hurricane High School Red Hot Show Choir has
acquired myriad awards, including 20 grand championships. The
choir has also won best choral sound, best choreography, best
instrumental ensemble, best male and female soloists, best show
concept, best costumes, outstanding individual performer and most
entertaining show; and
Whereas, Throughout the years, the Hurricane High School Red
Hot Show Choir has won many prestigious awards, including the West
Virginia State Championship in 1999, 2004, 2005 and 2006. The choir
also has participated in competitions in Ohio, Missouri, Tennessee
and Virginia. In 2006, the choir traveled to New York City, where
it placed third runner up in the National Show Stoppers
Competition; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the accomplishments of
Hurricane High School Red Hot Show Choir; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Kimberly Edwards, Director of the
Hurricane High School Red Hot Show Choir.
At the request of Senator Facemyer, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
At the request of Senator Stollings, and by unanimous consent,
Senator Stollings offered the following resolution from the floor:
Senate Concurrent Resolution No. 86--Requesting that the
Legislative Oversight Committee on Health and Human Resources Accountability study the availability of medical rehabilitation
centers for state residents.
Whereas, West Virginia Medicaid currently does not pay for
inpatient medical rehabilitation for persons older than 21 years of
age; and
Whereas, Until recently, the West Virginia Rehabilitation
Center, located in Institute, had an inpatient unit that was able
to provide care for patients who lacked other funding; and
Whereas, The West Virginia Rehabilitation Center is no longer
providing inpatient medical rehabilitation services; and
Whereas, West Virginians on Medicaid receive inpatient medical
rehabilitation only if the hospital or free-standing rehabilitation
center provides charity care; and
Whereas, Inpatient medical rehabilitation is a medically
necessary treatment for many conditions, including stroke,
traumatic brain injury, spinal cord injury and other conditions
resulting from disease and trauma; and
Whereas, For these patients, equivalent outcomes cannot always
be achieved in acute care hospital settings, nursing homes, home
health or outpatient facilities; and
Whereas, Inpatient medical rehabilitation has been shown to
improve function, decrease subsequent medical morbidity and, in
some cases, allow patients to become economically self-sufficient;
and
Whereas, That to provide Medicaid funding for adult
rehabilitation services, it is essential that the West Virginia Medicaid program receive adequate funding to allow all West
Virginians to maximize their recovery from severe disabling
conditions; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislative Oversight Committee on Health and Human
Resources Accountability is hereby requested to study the
availability of medical rehabilitation centers for state residents;
and, be it
Further Resolved, That the Legislative Oversight Committee on
Health and Human Resources Accountability study the feasibility of
Medicaid reimbursement for adults receiving treatment from such
facilities and the funding necessary to provide such services; and,
be it
Further Resolved, That the Legislative Oversight Committee on
Health and Human Resources Accountability report to the regular
session of the Legislature, 2008, 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 Legislative Oversight
Committee on Health and Human Resources Accountability.
At the request of Senator Stollings, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Stollings, the resolution (S. C. R. No.
86) was referred to the Committee on Rules.
At the request of Senator Fanning, and by unanimous consent,
Senators Fanning and Helmick offered the following resolution from
the floor:
Senate Concurrent Resolution No. 87--Requesting the Joint
Committee on Government and Finance study the procurement and
placement on insurance coverage on public buildings and other
public properties in the State of West Virginia under the control
of the state's 55 county commissions.
Whereas, On August 8, 2006, a fire destroyed the Morgan County
Courthouse Complex in Berkeley Springs; and
Whereas, The proceeds from the insurance coverage in effect at
the time of the fire are not sufficient to cover the costs of
construction of the new courthouse complex; and
Whereas, Morgan County will require financial assistance in
the approximate amount of $8 million from the state to construct
the new courthouse complex; and
Whereas, This situation has given rise to significant public
policy questions regarding the procurement and placement of
insurance coverage on public buildings and other public properties
under the control of county commissions; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the procurement and placement on insurance
coverage on public buildings and other public properties in the
State of West Virginia under the control of the state's 55 county
commissions; and, be it
Further Resolved, That representatives of the Board of Risk
and Insurance Management, West Virginia Association of County
Commissioners, West Virginia Association of Counties, West Virginia
Assessors Association and Professional Independent Insurance Agents
of West Virginia, Inc., be invited to serve on the interim study
commission; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, 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.
At the request of Senator Fanning, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Fanning, the resolution (S. C. R. No. 87)
was referred to the Committee on Rules.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:43 p.m. today:
Eng. Com. Sub. for House Bill No. 2670, Authorizing the
Department of Commerce to promulgate legislative rules.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2253, Providing certain
correctional officers be transferred into the civil service system
as covered employees.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 5, 2007;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred; and as last amended by the Committee on
Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2253) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-27. Employees of Regional Jail Authority; priority of
hiring; civil service coverage.
(a) Notwithstanding any provision of this code to the
contrary, the authority, when employing correctional officers
hiring employees to complete the approved staffing plan of a
regional jail completed after the effective date of this section,
shall employ any correctional officer applying for a position as a
correctional officer at a regional jail who was employed in good
standing at a county jail facility in the region at the time of its
closing or at a prison facility operated by the division of
corrections: Provided, That the regional jail is located within
the same region as the prison facility that was closed due to
relocation of the prison facility to a site outside the region.
Only those correctional officers, who are employees in good
standing at the time the prison facility is closed, are eligible
for transfer under the provisions of this subsection. Correctional
officers, employed under the provisions of this subsection, shall
be employed shall do so at a salary and with benefits consistent
with the approved plan of compensation of the Division of
Personnel, created under section five, article six, chapter
twenty-nine of this code. All correctional officers persons
employed under this subsection shall also be covered by the
policies and procedures of the education and state employees grievance board, created under section five, article six-a, chapter
twenty-nine of this code and the classified-exempt service
protection policies of the division of personnel be placed in the
civil service system as covered employees. On and after the first
day of January, two thousand eight, the Executive Director of the
Regional Jail and Correctional Facility Authority, all employees
within the office of the executive director and all regional jail
administrators are exempt from coverage under the classified
service.
(b) The authority shall, when employing correctional officers
to fill positions within the approved staffing plan of any regional
jail, employ any correctional officer applying for a position as a
correctional officer at a regional jail who was previously employed
as a correctional officer in good standing at any local jail
facility: Provided, That the local jail facility is located within
the same region as the regional jail at the time of the local jail
facility's closing or reduction in size and was reduced in size or
closed prior to or due to the completion of the regional jail
within the region. Correctional officers Persons employed under
the provisions of this subsection shall be employed at a salary and
with benefits consistent with the approved plan of compensation of
the Division of Personnel, created under section five, article six,
chapter twenty-nine of this code. Only those county correctional
officers who are employees in good standing at the time the local
jail facility is closed are eligible for transfer under the
provisions of this subsection. All correctional officers All persons employed under this subsection shall also be covered by the
policies and procedures of the Education and State Employees
Grievance Board created under section five, article six-a, chapter
twenty-nine of this code. and the classified-exempt service
protection of the division of personnel
(c) Notwithstanding the provisions of section ten, article
six, chapter twenty-nine of this code, and any rule promulgated
thereunder, on and after the first day of July, two thousand seven,
any person applying for employment with the Regional Jail and
Correctional Facility Authority shall be hired based on passage of
the correctional officer examination without regard to his or her
position on the correctional officer register and shall be placed
in the civil service system as covered employees: Provided, That no
such person shall be hired before an otherwise qualified person on
a preference register.
The following amendments to the Judiciary committee amendment
to the bill (Eng. Com. Sub. for H. B. No. 2253), from the Committee
on Finance, were reported by the Clerk, considered simultaneously,
and adopted:
On page three, section twenty-seven, subsection (b), by
striking out the words "Education and State Employees Grievance
Board" and inserting in lieu thereof the words "West Virginia
Public Employees Grievance Board";
And,
On page three, section twenty-seven, subsection (b), by
striking out the words "five, article six-a, chapter twenty-nine" and inserting in lieu thereof the words "one, article three,
chapter six-c".
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2253), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2253) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2253) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2253--A Bill to amend and
reenact §31-20-27 of the Code of West Virginia, 1931, as amended,
relating to requiring classified service designation for certain
Regional Jail and Correctional Facility Authority employees;
providing that certain employees retain their current exempt
status; and authorizing employment of new employees who have
successfully completed certain required examinations.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Transportation and Infrastructure.
At the request of Senator Unger, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2709) was taken up
for immediate consideration, read a first time and ordered to
second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 2709) was then read a
second time.
The following amendment to the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and
adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §7-1-3a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §8-19-21 of said code be amended
and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3a. Construction of waterworks; sewers and sewage disposal
plants; improvements of streets, alleys and sidewalks;
assessment of cost of sanitary sewers, improved streets and
maintenance of roads not in the state road system.
In addition to all other powers and duties now conferred by
law upon county commissions, such commissions are hereby authorized
and empowered to install, construct, repair, maintain and operate
waterworks, water mains, sewer lines and sewage disposal plants in
connection therewith within their respective counties: Provided,
That the county commission of Webster County is authorized to
expend county funds in the opening of, and upkeep of, a sulphur
well now situate on county property: Provided, however, That such
authority and power herein conferred upon county commissions shall
not extend into the territory within any municipal corporation:
Provided further, That any county commission is hereby authorized
to enter into contracts or agreements with any municipality within
the county, or with a municipality in an adjoining county, with reference to the exercise of the powers vested in such commissions
by this section.
Considering the importance of public fire protection, any
county commission, public service district, public or private
utility which installs, constructs, maintains or upgrades water
mains shall ensure that all new mains specifically intended to
provide fire protection are supplied by mains which are not less
than six inches in diameter. A permit or other written approval
shall be obtained from the Department of Health and Human Resources
for each hydrant or group of hydrants installed in compliance with
section nine, article one, chapter sixteen of this code as amended:
Provided, That all newly constructed water distribution systems
transferred to a public or private utility shall have mains at
least six inches in diameter where fire flows are desired or
required by the public or private utility: Provided, however, That
the utility providing service has sufficient hydraulic capacity as
determined by the department of health and human resources.
Effective the first day of January, two thousand eight, when any
state or local government, public service district, public or
private utility installs, constructs or upgrades water mains, the
existing hydrants shall be replaced with new or refurbished
hydrants that have an internal hydrant valve device installed which
will prevent intentional or accidental backflow contamination of
the domestic water supply. Such device may in no way delay access
to the water supply for fire protection.
In addition to the foregoing, the county commission shall have the power to improve streets, sidewalks and alleys and lay sewers
and enter into contracts for maintenance of county roads and
subdivision roads used by the public but not in the state road
system as follows: Upon petition in writing duly verified, of the
persons, firms or corporations owning not less than sixty percent
of the frontage of the lots abutting on both sides of any street or
alley, between any two cross-streets, or between a cross-street and
an alley in any unincorporated community, requesting the county
commission so to do according to plans and specifications submitted
with such petition and offering to have their property so abutting
assessed not only with their portion of the cost of such
improvement abutting upon their respective properties, but also
offering to have their said properties proportionately assessed
with the total cost of paving, grading and curbing the
intersections of such streets and alleys, or the total cost of
maintenance of county roads or subdivision roads used by the public
but not in the state road system, the county commission may cause
any such street or alley to be improved or paved or repaved
substantially with the materials and according to such plans and
specifications as hereinafter provided: Provided, That the county
commission is further authorized, if the said county commission so
determines by a unanimous vote of its constituted membership, that
two or more intersecting streets, sidewalks, alleys and sewers,
should be improved as one project, in order to satisfy peculiar
problems resulting from access as well as drainage problems, then,
in that event, the said county commission may order such improvements as one single unit and project, upon petition in
writing duly verified of the persons, firms or corporations owning
not less than sixty percent of the frontage of the lots abutting on
both sides of all streets or alleys, or portions thereof included
by said county commission in said unit and project.
The total cost including labor and materials, engineering and
legal service of grading and paving, curbing, improving any such
road, street or alley (including the cost of the intersections) and
assessing the cost thereof shall be borne by the owners of the land
abutting upon such road, street or alley when the work is completed
and accepted according to the following plan, that is to say,
payment is to be made by all landowners on either side of such
road, street or alley so paved or improved in such proportion of
the total cost as the frontage in feet of each owner's land so
abutting bears to the total frontage of all the land so abutting on
such road, street or alley, so paved or improved as aforesaid,
which computation shall be made by the county engineer or surveyor
and certified by him to the clerk of said commission.
Upon petition in writing duly verified of the persons, firms
or corporations owning not less than sixty percent of the frontage
of the lots abutting on one side of any county or subdivision road
or roads between any two cross-roads, all used by the public but
not in the state road system or street between any two
cross-streets or between a cross-street and an alley in any
unincorporated community requesting the county commission so to do
according to plans and specifications submitted with such petition and offering to have their property so abutting assessed with the
total cost thereof, the county commission may cause any sidewalk to
be improved, or paved, or repaved, substantially with such
materials according to such plans and specifications and the total
cost including labor and materials, engineering and legal service
of improving, grading, paving or repaving such sidewalk and
assessing the cost thereof shall, when the work is completed and
accepted, be assessed against the owners of the lots or fractional
part of lots abutting on such sidewalk, in such portion of the
total cost as the frontage in feet of each owner's land so abutting
bears to the total frontage of all lots so abutting on such
sidewalk so paved or improved, as aforesaid, which computation
shall be made by the county engineer or surveyor and certified by
him to the clerk of said commission.
Upon petition in writing duly verified, of the persons, firms
or corporations owning not less than sixty percent of the frontage
of the lots abutting on both sides of any street or alley, in any
unincorporated community requesting the county commission so to do
according to plans and specifications submitted with such petition
and offering to have their property so abutting assessed with the
cost, as hereinafter provided, the county commission may lay and
construct sanitary sewers in any street or alley with such
materials and substantially according to such plans and
specifications and when such sewer is completed and accepted, the
county engineer or surveyor shall report to the county commission,
in writing, the total cost of such sewer and a description of the lots and lands, as to the location, frontage, depth and ownership
liable for such sewer assessment, so far as the same may be
ascertained, together with the amount chargeable against each lot
and owner, calculated in the following manner: The total cost of
constructing and laying the sewer including labor, materials, legal
and engineering services shall be borne by the owners of the land
abutting upon the streets and alleys, in which the sewer is laid
according to the following plan: Payment is to be made by each
landowner on either side of such portion of a street or alley in
which such sewer is laid, in such proportions as the frontage of
his land upon said street or alley bears to the total frontage of
all lots so abutting on such street or alley. In case of a corner
lot, frontage is to be measured along the longest dimensions
thereof abutting on such street or alley in which such sewer is
laid. Any lot having a depth of two hundred feet or more, and
fronting on two streets or alleys, one in the front and one in the
rear of said lot, shall be assessed on both of said streets or
alleys if a sewer is laid in both such streets and alleys. Where
a corner lot has been assessed on the end it shall not be assessed
on the side for the same sewer and where it has been assessed on
the side it shall not be assessed on the end for the same sewer.
If the petitioners request the improvement of any such county
road or subdivision road, street, alley or sidewalk in a manner
which does not require the permanent paving or repaving thereof,
the county commission shall likewise have authority to improve such
county road or subdivision road, street, alley or sidewalk, substantially as requested in such petition, and the total cost
thereof including labor, materials, engineering and legal services
shall be assessed against the abutting owners in the proportion
which the frontage of their lots abutting upon such county road or
subdivision road, street, alley or sidewalk bears to the total
frontage of all lots abutting upon such street, alley or sidewalk
so improved.
Upon the filing of such petition and before work is begun, or
let to contract, the county commission shall fix a time and place
for hearing protests and shall require the petitioners to post
notice of such hearing in at least two conspicuous places on the
county road or subdivision road, street, alley or sidewalk
affected, and to give notice thereof by publication of such notice
as a Class I legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code, and the
publication area for such publication shall be the county in which
the improvement is to be made. The hearing shall be held not less
than ten nor more than thirty days after the filing of such
petition.
At the time and place set for hearing protests the county
commission may examine witnesses and consider other evidence to
show that said petition was filed in good faith; that the
signatures thereto are genuine; and that the proposed improvement,
paving, repaving or sewering will result in special benefits to all
owners of property abutting on said county road or subdivision
road, street, alley or sidewalk in an amount at least equal in value to the cost thereof. The commission shall within ten days
thereafter enter a formal order stating its decision and if the
petition be granted shall proceed after due advertisement,
reserving the right to reject any or all bids, to let a contract
for such work and materials to the lowest responsible bidder.
Any owner of property abutting upon said county road or
subdivision road, street, alley or sidewalk aggrieved by such order
shall have the right to review the same on the record made before
the county commission by filing within ten days after the entry of
such order a petition with the clerk of the circuit court assigning
errors and giving bond in a penalty to be fixed by the circuit
court to pay any costs or expenses incurred upon such appeal should
the order of the county commission be affirmed. The circuit court
shall proceed to review the matter as in other cases of appeal from
the county commission.
All assessments made under this section shall be certified to
the county clerk and recorded in a proper trust deed book and
indexed in the name of the owner of any lot or fractional part of
a lot so assessed. The assessment so made shall be a lien on the
property liable therefor, and shall have priority over all other
liens except those for taxes, and may be enforced by a civil action
in the name of the contractor performing the work in the same
manner as provided for other liens for permanent improvements.
Such assessment shall be paid in not more than ten equal annual
installments, bearing interest at a rate not to exceed twelve
percent per annum, as follows: The first installment, together with interest on the whole assessment, shall be paid not later than
one year from the date of such assessment, and a like installment
with interest on the whole amount remaining unpaid each year
thereafter until the principal and all interest shall have been
paid in full.
The county commission may issue coupon-bearing certificates
payable in not more than ten equal annual installments for the
amount of such assessment and the interest thereon, to be paid by
the owner of any lot or fractional part thereof, fronting on such
county road or subdivision road, street, alley or sidewalk which
has been improved, paved, or repaved or in which a sewer has been
laid, as aforesaid, and the holder of said certificate shall have
a lien having priority over all other liens except those for taxes
upon the lot or part of lot fronting on such county road or
subdivision road, street, alley or sidewalk, and such certificate
shall likewise draw interest from the date of assessment at a rate
not to exceed twelve percent per annum, and payment thereof may be
enforced in the name of the holder of said certificate by proper
civil action in any court having jurisdiction to enforce such lien.
Certificates authorized under this section may be issued, sold
or negotiated to the contractor doing the work, or to his assignee,
or to any person, firm or corporation: Provided, That the county
commission in issuing such certificates shall not be held as a
guarantor, or in any way liable for the payment thereof.
Certificates so issued shall contain a provision to the effect that
in the event of default in the payment of any one or more of said installments, when due, said default continuing for a period of
sixty days, all unpaid installments shall thereupon become due and
payable, and the owner of said certificates may proceed to collect
the unpaid balance thereof in the manner hereinbefore provided.
In all cases where petitioners request paving or repaving, or
the laying of sewers under the provisions of this section, the
county commission shall let the work of grading, paving, curbing or
sewering to contract to the lowest responsible bidder. In each
such case the county commission shall require a bond in the penalty
of the contract price guaranteeing the faithful performance of the
work and each such contract shall require the contractor to repair
any defects due to defective workmanship or materials discovered
within one year after the completion of the work.
Upon presentation to the clerk of the county commission of the
certificates evidencing the lien, duly canceled and marked paid by
the holder thereof, or evidence of payment of the assessment if no
certificates have been issued, said clerk shall execute and
acknowledge a release of the lien which release may be recorded, as
other releases in the office of the clerk of the county commission.
The owner of any lot or fractional part of a lot abutting upon
such county road or subdivision road, street, alley or sidewalk so
improved, paved, repaved, or sewered shall have the right to
anticipate the payment of any such assessment or certificate by
paying the principal amount due, with interest accrued thereon to
date of payment, and also to pay the entire amount, without
interest at any time, within thirty days following the date of the assessment.
Nothing in this section contained shall be construed to
authorize the county commissions of the various counties to acquire
any road construction, ditching or paving equipment. The county
commissions are hereby authorized to rent from the state road
commissioner or any other person, firm or corporation such
equipment as may be necessary from time to time, to improve any
county road or subdivision road used by the public but not in the
state road system, street or sidewalk which petitioners do not
desire to have paved in a permanent manner, and for such purpose to
employ such labor as may be necessary but no expense connected
therewith shall be charged to any county funds.
No county commission shall be under any duty after the paving,
repaving or improvement of any county road or subdivision road used
by the public but not in the state road system, street, alley or
sidewalk or the laying of any sanitary sewer under the provisions
of this section, to maintain or repair the same, but any such
commission shall have authority upon petition duly verified, signed
by at least sixty percent of the owners of property abutting upon
any improvement made under this section, to maintain or repair such
improvement or sewer and to assess the cost thereof against the
owners of such abutting property in the same manner as the cost of
the original improvement.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER
SYSTEMS.
§8-19-21. Specifications for water mains and water service pipes.
Considering the importance of public fire protection, any
state or local government, public service district, public or
private utility which installs, constructs, maintains or upgrades
water mains shall ensure that all new mains specifically intended
to provide fire protection are supplied by mains which are not less
than six inches in diameter. Effective the first day of January,
two thousand eight, when any state or local government, public
service district, public or private utility installs, constructs or
upgrades water mains, the existing hydrants shall be replaced with
new or refurbished hydrants that have an internal hydrant valve
device installed which will prevent intentional or accidental
backflow contamination of the domestic water supply. Such device
may in no way delay access to the water supply for fire protection.
A permit or other written approval shall be obtained from the
Department of Health and Human Resources for each hydrant or group
of hydrants installed in compliance with section nine, article one,
chapter sixteen of this code as amended: Provided, That all newly
constructed water distribution systems transferred to a public or
private utility shall have mains at least six inches in diameter
where fire flows are desired or required by the public or private
utility: Provided, however, That the utility providing service has
sufficient hydraulic capacity as determined by the Department of
Health and Human Resources.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2709) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2709) passed.
The following amendment to the title of the bill, from the
Committee on Transportation and Infrastructure, was reported by the
Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2709--A Bill to amend and
reenact §7-1-3a of the Code of West Virginia, 1931, as amended; and
to amend and reenact §8-19-21 of said code, all relating to new
requirements for fire hydrants when water mains are being
installed, constructed or upgraded; and municipal and county
waterworks systems and specifications for water mains generally.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report had been filed at 5:54 p.m. today:
Eng. Com. Sub. for Senate Bill No. 178, Allowing counties to
increase hotel occupancy tax.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2048, Clarifying public
library board service areas as determined by the Library
Commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2527, Revising the sunrise
review process.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2544, Increasing the penalty
for driving under the influence causing death.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2747, Regulating plumbers
and fire protection workers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2764, Establishing criminal
history checks for applicants for insurance producer licenses.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2800, Relating to the
practice of medical imaging and radiation therapy.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2801, Providing a fifty
thousand dollar death benefit to the families of firefighters and
EMS personnel who are killed in the line of duty.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3006, Limiting the number of terms a
member of the Board of Physical Therapy may serve.
The Senate again proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3167, Allowing teachers
employed by a statewide service personnel association to count this
service towards retirement credit.
With amendments from the Committee on Pensions pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2007;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Pensions to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3167) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Pensions, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§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' Consolidated Public 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' Consolidated Public
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 qualifying employment while serving as an officer or staff
with a statewide professional teaching association or statewide
service personnel 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 may not exceed ten years:
Provided, however, That a member or retired teacher who is serving or has served as an officer or staff of a statewide professional
teaching association or statewide service personnel association
shall make deposits to the Teachers' Consolidated Public 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. equal to the present value of
what would have been contributed by both the employer and employee
during the period if the member or retired teacher had continued in
the position in which he or she was employed immediately preceding
the absence: Provided further, That the member or retired teacher
has been a member of the Teachers Retirement System for ten years
before being eligible to accrue service credit for serving as an
officer or staff employee of an association: And provided further,
That the membership of the teaching association or service
personnel association is made up of persons employed in West
Virginia. Service credit for employment with an association as
provided in this subsection is prohibited if the period of
employment is used to obtain a retirement benefit from any other
employer-sponsored retirement plan.
(g) The Teachers' Consolidated Public 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 this subsection and
subsections (a) through (k), 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 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 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' Consolidated Public 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 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.
The bill (Eng. Com. Sub. for H. B. No. 3167), as amended, was
then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Barnes, Boley,
Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Plymale, Stollings, Sypolt, White and Tomblin
(Mr. President)--26.
The nays were: Caruth, Oliverio, Prezioso, Sprouse, Unger,
Wells and Yoder--7.
Absent: Sharpe--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 3, Zeb S. Pugh Memorial
Bridge.
And has amended same.
House Concurrent Resolution No. 4, Rodney Morgan and Rodney
"Ronnie" Staton Memorial Bridges.
And has amended same.
House Concurrent Resolution No. 8, Sharrell Hayes Brown and
Edwin Waymen Brown Memorial Bridge.
And has amended same.
House Concurrent Resolution No. 10, The Lloyd L. Lang Bridge.
And has amended same.
House Concurrent Resolution No. 12, The Narvel Perdue Bridge.
And has amended same.
House Concurrent Resolution No. 18, Lance Corporal James
"Jimmy" Sargent Memorial Bridge.
And has amended same.
House Concurrent Resolution No. 19, The "Matilda Messer
Bridge".
And has amended same.
House Concurrent Resolution No. 30, The "Thomas E. 'Jock'
Clifford, Jr., Memorial Bridge".
And has amended same.
House Concurrent Resolution No. 32, The "Seaman Apprentice,
Roger Dale Childers Memorial Bridge".
And has amended same.
House Concurrent Resolution No. 38, "The Staff Sergeant Robert
F. White Bridge".
And has amended same.
And,
House Concurrent Resolution No. 49, The "Steven Wayne Smith
Memorial Bridge".
And has amended same.
And reports the same back with the recommendation that they
each be adopted, as amended.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 3 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 3), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 4 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 4), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 8 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 8), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 10 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 10), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 12 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 12), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 18 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 18), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 19 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 19), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 30 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 30), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 32 contained in the preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 32), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 38 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 38), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 49 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the resolution were withdrawn.
The question being on the adoption of the resolution (H. C. R.
No. 49), the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 6:13 p.m. today:
Eng. Com. Sub. for House Bill No. 2955, Continuing a flat-rate
excise tax on motor fuel at $.205.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 15, The Travis Harless
Memorial Highway.
House Concurrent Resolution No. 20, The "Burl Stafford
Bridge".
House Concurrent Resolution No. 24, Everett Dillon Memorial
Bridge.
House Concurrent Resolution No. 26, The Sheriff Fred Gaudet
Bridge.
House Concurrent Resolution No. 47, Requesting the Division of
Highways to name a portion of Route 16 the "Lucille Smallwood
Meadows Highway".
And,
House Concurrent Resolution No. 61, The "Harvey E. Horn
Memorial Bridge".
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 15 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 20 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 24 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 26 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 47 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 61 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2406, Providing that in the
event a yearling was born in another state and transported to this
state, the definition of "Raiser of an accredited West Virginia
horse" does not apply to any pari-mutuel racing facility in
Jefferson County.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2007;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2406) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §19-23-3, §19-23-10 and §19-23-13b of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 23. HORSE AND DOG RACING.
§19-23-3. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(1) "Horse racing" means any type of horse racing, including,
but not limited to, thoroughbred racing and harness racing;
(2) "Thoroughbred racing" means flat or running type horse
racing in which each horse participating therein is a thoroughbred
and is mounted by a jockey;
(3) "Harness racing" means horse racing in which the horses
participating therein are harnessed to a sulky, carriage or other
vehicle and shall not include any form of horse racing in which the horses are mounted by jockeys;
(4) "Horse race meeting" means the whole period of time for
which a license is required by the provisions of section one of
this article;
(5) "Dog racing" means any type of dog racing, including, but
not limited to, greyhound racing;
(6) "Purse" means any purse, stake or award for which a horse
or dog race is run;
(7) "Racing association" or "person" means any individual,
partnership, firm, association, corporation or other entity or
organization of whatever character or description;
(8) "Applicant" means any racing association making
application for a license under the provisions of this article or
any person making application for a permit under the provisions of
this article, or any person making application for a construction
permit under the provisions of this article, as the case may be;
(9) "License" means the license required by the provisions of
section one of this article;
(10) "Permit" means the permit required by the provisions of
section two of this article;
(11) "Construction permit" means the construction permit
required by the provisions of section eighteen of this article;
(12) "Licensee" means any racing association holding a license
required by the provisions of section one of this article and
issued under the provisions of this article;
(13) "Permit holder" means any person holding a permit required by the provisions of section two of this article and
issued under the provisions of this article;
(14) "Construction permit holder" means any person holding a
construction permit required by the provisions of section eighteen
of this article and issued under the provisions of this article;
(15) "Hold or conduct" includes "assist, aid or abet in
holding or conducting";
(16) "Racing Commission" means the West Virginia Racing
Commission;
(17) "Stewards" means the steward or stewards representing the
Racing Commission, the steward or stewards representing a licensee
and any other steward or stewards, whose duty it is to supervise
any horse or dog race meeting, all as may be provided by reasonable
rules and regulations of the Racing Commission, and the reasonable
rules and regulations shall specify the number of stewards to be
appointed, the method and manner of their appointment and their
powers, authority and duties;
(18) "Pari-mutuel" means a mutuel or collective pool that can
be divided among those who have contributed their wagers to one
central agency, the odds to be reckoned in accordance to the
collective amounts wagered upon each contestant running in a horse
or dog race upon which the pool is made, but the total to be
divided among the first three contestants on the basis of the
number of wagers on these;
(19) "Pari-mutuel clerk" means any employee of a licensed
racing association who is responsible for the collection of wagers, the distribution of moneys for winning pari-mutuel tickets,
verification of the validity of pari-mutuel tickets and accounting
for pari-mutuel funds;
(20) "Pool" means a combination of interests in a joint
wagering enterprise or a stake in such enterprise;
(21) "Legitimate breakage" is the percentage left over in the
division of a pool;
(22) "To the dime" means that wagers shall be figured and paid
to the dime;
(23) "Code" means the Code of West Virginia, one thousand nine
hundred thirty-one, as heretofore and hereinafter amended;
(24) "Accredited thoroughbred horse" means a thoroughbred
horse that is: (a) Foaled in West Virginia; (b) sired by an
accredited West Virginia sire; or (c) as a yearling, finished
twelve consecutive months of verifiable residence in the state,
except for thirty days' grace: (A) For the horse to be shipped to
and from horse sales where the horse is officially entered in the
sales catalogue of a recognized thoroughbred sales company; or (B)
for obtaining veterinary services, documented by veterinary
reports;
(25) "Accredited West Virginia sire" is a sire that is
permanently domiciled in West Virginia, stands a full season in
West Virginia and is registered with West Virginia Thoroughbred
Breeders Association;
(26) "Breeder of an accredited West Virginia horse" is the
owner of the foal at the time it was born in West Virginia;
(27) "Raiser of an accredited West Virginia horse" is the
owner of the yearling at the time it finished twelve consecutive
months of verifiable residence in the state. During the period,
the raiser will be granted one month of grace for his or her horse
to be shipped to and from thoroughbred sales where the horse is
officially entered in the sales catalogue of a recognized
thoroughbred sales company. In the event the yearling was born in
another state and transported to this state, this definition does
not apply after the thirty-first day of December, two thousand
seven, to any pari-mutuel racing facility located in Jefferson
County; nor shall it apply after the thirty-first day of December,
two thousand twelve, and thereafter, to any pari-mutuel racing
facility located in Hancock County. Prior to the horse being
shipped out of the state for sales, the raiser must notify the
Racing Commission of his or her intentions;
(28) The "owner of an accredited West Virginia sire" is the
owner of record at the time the offspring is conceived;
(29) The "owner of an accredited West Virginia horse" means
the owner at the time the horse earned designated purses to qualify
for restricted purse supplements provided for in section thirteen-b
of this article; and
(30) "Registered greyhound owner" means an owner of a
greyhound that is registered with the National Greyhound
Association;
(31) "Fund" means the West Virginia Thoroughbred Development
Fund established in section thirteen-b of this article; and
(32) "Regular purse" means both regular purses and stakes
purses.
§19-23-10. Daily license tax; pari-mutuel pools tax; how taxes
paid; alternate tax; credits.
(a) Any racing association conducting thoroughbred racing at
any horse racetrack in this state shall pay each day upon which
horse races are run a daily license tax of two hundred fifty
dollars. Any racing association conducting harness racing at any
horse racetrack in this state shall pay each day upon which horse
races are run a daily license tax of one hundred fifty dollars.
Any racing association conducting dog races shall pay each day upon
which dog races are run a daily license tax of one hundred fifty
dollars. In the event thoroughbred racing, harness racing, dog
racing, or any combination of the foregoing are conducted on the
same day at the same racetrack by the same racing association, only
one daily license tax in the amount of two hundred fifty dollars
shall be paid for that day. Any daily license tax shall not apply
to any local, county or state fair, horse show or agricultural or
livestock exposition at which horse racing is conducted for not
more than six days.
(b) Any racing association licensed by the Racing Commission
to conduct thoroughbred racing and permitting and conducting pari-
mutuel wagering under the provisions of this article shall, in
addition to the daily license tax set forth in subsection (a) of
this section, pay to the Racing Commission, from the commission
deducted each day by the licensee from the pari-mutuel pools on thoroughbred racing a tax calculated on the total daily
contribution of all pari-mutuel pools conducted or made at any and
every thoroughbred race meeting of the licensee licensed under the
provisions of this article. The tax, on the pari-mutuel pools
conducted or made each day during the months of January, February,
March, October, November and December, shall from the effective
date of this section and for fiscal year one thousand nine hundred
eighty-five be calculated at two and six-tenths percent; for fiscal
year one thousand nine hundred eighty-six, be calculated at two and
three-tenths percent; for fiscal year one thousand nine hundred
eighty-seven, be calculated at two percent of the pool; for fiscal
year one thousand nine hundred eighty-eight, be calculated at one
and one-half percent; for fiscal year one thousand nine hundred
eighty-nine, be calculated at one percent of the pool; for fiscal
year one thousand nine hundred ninety, seven tenths of one percent,
and for fiscal year one thousand nine hundred ninety-one and each
fiscal year thereafter be calculated at four tenths of one percent
of the pool; and, on the pari-mutuel pools conducted or made each
day during all other months, shall from the effective date of this
section and for fiscal year one thousand nine hundred eighty-five,
be calculated at three and six-tenths percent; for fiscal year one
thousand nine hundred eighty-six, be calculated at three and three-
tenths percent; for fiscal year one thousand nine hundred eighty-
seven, be calculated at three percent of the pool; for fiscal year
one thousand nine hundred eighty-eight, be calculated at two and
one-half percent; for fiscal year one thousand nine hundred eighty-nine, be calculated at two percent of the pool; for fiscal year one
thousand nine hundred ninety, be calculated at one and seven-tenths
percent of the pool; and for fiscal year one thousand nine hundred
ninety-one and each fiscal year thereafter, be calculated at one
and four-tenths percent of the pool: Provided, That out of the
amount realized from the three tenths of one percent decrease in
the tax effective for fiscal year one thousand nine hundred ninety-
one and thereafter, which decrease correspondingly increases the
amount of commission retained by the licensee, the licensee shall
annually expend or dedicate: (i) One half of the realized amount
for capital improvements in its barn area at the track, subject to
the Racing Commission's prior approval of the plans for the
improvements; and (ii) the remaining one half of the realized
amount for capital improvements as the licensee may determine
appropriate at the track. The term "capital improvement" shall be
as defined by the Internal Revenue Code: Provided, however, That
any racing association operating a horse racetrack in this state
having an average daily pari-mutuel pool on horse racing of two
hundred eighty thousand dollars or less per day for the race
meetings of the preceding calendar year shall, in lieu of payment
of the pari-mutuel pool tax, calculated as in this subsection, be
permitted to conduct pari-mutuel wagering at the horse racetrack on
the basis of a daily pari-mutuel pool tax fixed as follows: On the
daily pari-mutuel pool not exceeding three hundred thousand dollars
the daily pari-mutuel pool tax shall be one thousand dollars plus
the otherwise applicable percentage rate imposed by this subsection of the daily pari-mutuel pool, if any, in excess of three hundred
thousand dollars: Provided further, That upon the effective date
of the reduction of the daily pari-mutuel pool tax to one thousand
dollars from the former two thousand dollars, the association or
licensee shall daily deposit five hundred dollars into the special
fund for regular purses established by subdivision (1), subsection
(b), section nine of this article: And provided further, That if
an association or licensee qualifying for the foregoing alternate
tax conducts more than one racing performance, each consisting of
up to thirteen races in a calendar day, the association or licensee
shall pay both the daily license tax imposed in subsection (a) of
this section and the alternate tax in this subsection for each
performance: And provided further, That a licensee qualifying for
the foregoing alternate tax is excluded from participation in the
fund established by section thirteen-b of this article: And
provided further, That this exclusion shall not apply to any
thoroughbred racetrack at which the licensee has participated in
the West Virginia Thoroughbred Development Fund for more than four
consecutive years prior to the thirty-first day of December, one
thousand nine hundred ninety-two.
(c) Any racing association licensed by the Racing Commission
to conduct harness racing and permitting and conducting pari-mutuel
wagering under the provisions of this article shall, in addition to
the daily license tax required under subsection (a) of this
section, pay to the Racing Commission, from the commission deducted
each day by the licensee from the pari-mutuel pools on harness racing, as a tax, three percent of the first one hundred thousand
dollars wagered, or any part thereof; four percent of the next one
hundred fifty thousand dollars; and five and three-fourths percent
of all over that amount wagered each day in all pari-mutuel pools
conducted or made at any and every harness race meeting of the
licensee licensed under the provisions of this article.
(d) Any racing association licensed by the Racing Commission
to conduct dog racing and permitting and conducting pari-mutuel
wagering under the provisions of this article shall, in addition to
the daily license tax required under subsection (a) of this
section, pay to the Racing Commission, from the commission deducted
each day by the licensee from the pari-mutuel pools on dog racing,
as a tax, four percent of the first fifty thousand dollars or any
part thereof of the pari-mutuel pools, five percent of the next
fifty thousand dollars of the pari-mutuel pools, six percent of the
next one hundred thousand dollars of the pari-mutuel pools, seven
percent of the next one hundred fifty thousand dollars of the pari-
mutuel pools, and eight percent of all over three hundred fifty
thousand dollars wagered each day: Provided, That the licensee
shall deduct daily from the pari-mutuel tax an amount equal to one
tenth of one percent of the daily pari-mutuel pools in dog racing
in fiscal year one thousand nine hundred ninety; fifteen hundredths
of one percent in fiscal year one thousand nine hundred ninety-one;
two tenths of one percent in fiscal year one thousand nine hundred
ninety-two; one quarter of one percent in fiscal year one thousand
nine hundred ninety-three; and three tenths of one percent in fiscal year one thousand nine hundred ninety-four and every fiscal
year thereafter. The amounts deducted shall be paid to the Racing
Commission to be deposited by the Racing Commission in a banking
institution of its choice in a special account to be known as "West
Virginia Racing Commission-Special Account-West Virginia Greyhound
Breeding Development Fund". The purpose of the fund is to promote
better breeding, a training facility and racing of greyhounds in
the state through awards and purses to bona fide resident
registered greyhound owners of accredited West Virginia-whelped
greyhounds. In order to be eligible to receive an award or purse
through the fund, the registered greyhound owner of the accredited
West Virginia-whelped greyhound must be a bona fide resident of
this state. To qualify as a bona fide resident of West Virginia,
a registered greyhound owner may not claim residency in any other
state. A registered greyhound owner must prove bona fide residency
by providing to the commission personal income tax returns filed in
the State of West Virginia for the most recent tax year and the
three previous tax years, has real or personal property in this
state on which the owner has paid real or personal property taxes
during the most recent tax year and the previous three tax years
and an affidavit stating that the owner claims no other state of
residency. The Racing Commission and the West Virginia Registered
Greyhound Owners and Breeders Association shall maintain a registry
for West Virginia-bred greyhounds. The moneys shall be expended by
the Racing Commission for purses for stake races, supplemental
purse awards, administration, promotion and educational programs involving West Virginia-whelped dogs, owned by residents of this
state under rules promulgated by the Racing Commission. The Racing
Commission shall pay out of the Greyhound Breeding Development Fund
to each of the licensed dog racing tracks the sum of seventy-five
thousand dollars for the fiscal year ending the thirtieth day of
June, one thousand nine hundred ninety-four. The licensee shall
deposit the sum into the special fund for regular purses
established under the provisions of section nine of this article.
The funds shall be expended solely for the purpose of supplementing
regular purses under rules promulgated by the Racing Commission.
Supplemental purse awards will be distributed as follows:
Supplemental purses shall be paid directly to the registered
greyhound owner of an accredited greyhound.
The registered greyhound owner of accredited West Virginia-
whelped greyhounds that earn a purse points at any West Virginia
meet will receive a bonus award calculated at the end of each month
as a percentage of the fund dedicated to the owners as purse
supplements, which shall be a minimum of fifty percent of the total
moneys deposited into the West Virginia Greyhound Breeding
Development Fund monthly.
The total amount of the fund available for the owners' awards
shall be distributed according to the ratio of purses points earned
by an accredited greyhound to the total amount earned in races by
all accredited West Virginia-whelped greyhounds for that month as
a percentage of the funds dedicated to the owners' purse
supplements. The point value at all greyhound tracks shall be the same as approved by the Racing Commission to be effective the first
day of April, two thousand seven.
The registered greyhound owner of an accredited West Virginia-
whelped greyhound shall file a purse distribution form with the
Racing Commission for a percentage of his or her dog's earnings to
be paid directly to the registered greyhound owner or owners of the
greyhound. Distribution shall be made on the fifteenth day of each
month for the preceding month's achievements.
In no event shall purses points earned at a meet held at a
track which did not make contributions to the West Virginia
Greyhound Breeder's Development Fund out of the daily pool on the
day the meet was held qualify or count toward eligibility for
supplemental purse awards.
Any balance in the purse supplement funds after all
distributions have been made for the year revert to the general
account of the fund for distribution in the following year:
Provided, That not more than one million dollars from the balance
in the purse supplemental fund shall be used for the construction
and maintenance of a dog training track and facilities if such be
approved by the West Virginia Racing Commission. The West Virginia
Racing Commission shall be authorized to promulgate rules governing
dog training tracks.
In an effort to further promote the breeding of quality West
Virginia-whelped greyhounds, a bonus purse supplement shall be
established in the amount of fifty thousand dollars per annum, to
be paid in equal quarterly installments of twelve thousand five hundred dollars per quarter using the same method to calculate and
distribute these funds as the regular supplemental purse awards.
This bonus purse supplement is for three years only, commencing on
the first day of July, one thousand nine hundred ninety-three, and
ending the thirtieth day of June, one thousand nine hundred
ninety-six. This money would come from the current existing
balance in the Greyhound Development Fund.
Each pari-mutuel greyhound track shall provide stakes races
for accredited West Virginia-whelped greyhounds: Provided, That
each pari-mutuel track shall have one juvenile and one open stake
race annually. To assure breeders of accredited West Virginia-
whelped greyhounds an opportunity to participate in the West
Virginia Greyhound Breeding Development Fund, the West Virginia
Racing Commission by the first day of July each year shall
establish and announce the minimum number of accredited West
Virginia-whelped greyhounds that greyhound racing kennels at West
Virginia dog tracks must have on their racing active list during
the calendar year following such action. The minimum number may
vary from dog track to dog track. The minimum number shall be
established after consultation with the West Virginia Greyhound
Owners and Breeders Association and kennel owners and operators.
Factors to be considered in establishing this minimum number shall
be the number of individually registered accredited West Virginia-
whelped greyhounds whelped in the previous two years. The number
of all greyhounds seeking qualification at each West Virginia dog
track, the ratio of active running greyhounds to housed number of greyhounds at each West Virginia dog track and the size and number
of racing kennels at each West Virginia dog track. Any greyhound
racing kennel not having the minimum number of accredited West
Virginia-whelped greyhounds determined by the West Virginia Racing
Commission on their active list shall only be permitted to race the
maximum allowable number on the active list less the number of
accredited West Virginia-whelped greyhounds below the established
minimum number. Consistent violations of this minimum requirement
may for review by the Racing Commission and may constitute cause
for denial or revocation of a kennel's racing license. The Racing
Commission shall oversee and approve racing schedules and purse
amounts.
Ten percent of the deposits into the Greyhound Breeding
Development Fund beginning the first day of July, one thousand nine
hundred ninety-three, and continuing each year thereafter, shall be
withheld by the Racing Commission and placed in a special revenue
account hereby created in the State Treasury called the
"Administration, Promotion and Educational and Capital Improvement
Account". The Racing Commission is authorized to expend the moneys
deposited in the Administration, Promotion and Educational and
Capital Improvement Account at such times and in such amounts as
the commission determines to be necessary for purposes of
administering and promoting the greyhound development program:
Provided, That beginning with fiscal year one thousand nine hundred
ninety-five and in each fiscal year thereafter in which the
commission anticipates spending any money from the account, the commission shall submit to the executive department during the
budget preparation period prior to the Legislature convening before
that fiscal year for inclusion in the executive budget document and
budget bill, the recommended expenditures, as well as requests of
appropriations for the purpose of administration, promotion and
education. The commission shall make an annual report to the
Legislature on the status of the administration, promotion and
education account, including the previous year's expenditures and
projected expenditures for the next year.
The Racing Commission, for the fiscal year one thousand nine
hundred ninety-four only, may expend up to thirty-five thousand
dollars from the West Virginia Greyhound Breeding Development Fund
to accomplish the purposes of this section without strictly
following the requirements in the previous paragraph.
(e) All daily license and pari-mutuel pools tax payments
required under the provisions of this section shall be made to the
Racing Commission or its agent after the last race of each day of
each horse or dog race meeting, and the pari-mutuel pools tax
payments shall be made from all contributions to all pari-mutuel
pools to each and every race of the day.
(f) Every association or licensee subject to the provisions of
this article, including the changed provisions of sections nine and
ten of this article, shall annually submit to the Racing Commission
and the Legislature financial statements, including a balance
sheet, income statement, statement of change in financial position
and an audit of any electronic data system used for pari-mutuel tickets and betting, prepared in accordance with generally accepted
auditing standards, as certified by an experienced public
accountant or a certified public accountant.
§19-23-13b. West Virginia Thoroughbred Development Fund;
distribution; restricted races; nonrestricted purse
supplements; preference for West Virginia-accredited
thoroughbreds.
(a) The Racing Commission shall deposit moneys required to be
withheld by an association or licensee in subsection (b), section
nine of this article in a banking institution of its choice in a
special account to be known as "West Virginia Racing Commission
Special Account -- West Virginia Thoroughbred Development Fund":
Provided, That after the West Virginia Lottery Commission has
divided moneys between the West Virginia Thoroughbred Development
Fund and the West Virginia Greyhound Breeding Development Fund
pursuant to the provisions of sections ten and ten-b, article
twenty-two-a, chapter twenty-nine of this code, the Racing
Commission shall, beginning the first day of October, two thousand
five, deposit the remaining moneys required to be withheld from an
association or licensee designated to the Thoroughbred Development
Fund under the provisions of subsection (b), section nine of this
article; subdivision (3), subsection (e), section twelve-b of this
article; subsection (b), section twelve-c of this article;
paragraph (B), subdivision (3), subsection (b), section thirteen-c
of this article; and sections ten and ten-b, article twenty-two-a,
chapter twenty-nine of this code into accounts for each thoroughbred racetrack licensee with a banking institution of its
choice with a separate account for each association or licensee.
Each separate account shall be a special account to be known as
"West Virginia Racing Commission Special Account -- West Virginia
Thoroughbred Development Fund" and shall name the licensee for
which the special account has been established: Provided, however,
That the Racing Commission shall deposit all moneys paid into the
Thoroughbred Development Fund by a thoroughbred racetrack licensee
that did not participate in the Thoroughbred Development Fund for
at least four consecutive calendar years prior to the thirty-first
day of December, one thousand nine hundred ninety-two, from the
eighth day of July, two thousand five, until the effective date of
the amendment to this section passed during the fourth
extraordinary session of the seventy-seventh Legislature shall be
paid into the purse fund of that thoroughbred racetrack licensee:
Provided further, That the moneys paid into the Thoroughbred
Development Fund by a thoroughbred racetrack licensee that did not
participate in the Thoroughbred Development Fund for at least four
consecutive calendar years prior to the thirty-first day of
December, one thousand nine hundred ninety-two, shall be
transferred into that licensee's purse fund until the first day of
April, two thousand six. Notice of the amount, date and place of
the deposits shall be given by the Racing Commission, in writing,
to the State Treasurer. The purpose of the funds is to promote
better breeding and racing of thoroughbred horses in the state
through awards and purses for accredited breeders/raisers, sire owners and thoroughbred race horse owners: And provided further,
That five percent of the deposits required to be withheld by an
association or licensee in subsection (b), section nine of this
article shall be placed in a special revenue account hereby created
in the State Treasury called the "Administration and Promotion
Account".
(b) The Racing Commission is authorized to expend the moneys
deposited in the administration and promotion account at times and
in amounts as the commission determines to be necessary for
purposes of administering and promoting the thoroughbred
development program: Provided, That during any fiscal year in
which the commission anticipates spending any money from the
account, the commission shall submit to the executive department
during the budget preparation period prior to the Legislature
convening before that fiscal year for inclusion in the executive
budget document and budget bill the recommended expenditures, as
well as requests of appropriations for the purpose of
administration and promotion of the program. The commission shall
make an annual report to the Legislature on the status of the
administration and promotion account, including the previous year's
expenditures and projected expenditures for the next year.
(c) The fund or funds and the account or accounts established
in subsection (a) of this section shall operate on an annual basis.
(d) Funds in the Thoroughbred Development Fund or funds in the
separate accounts for each association or licensee as provided in
subsection (a) of this section shall be expended for awards and purses except as otherwise provided in this section. Annually, the
first three eight hundred thousand dollars of each fund shall be
available for distribution for a minimum of fourteen accredited
stakes races at a racetrack which has participated in the West
Virginia Thoroughbred Development Fund for a period of more than
four consecutive calender years prior to the thirty-first day of
December, one thousand nine hundred ninety-two. The weights for
all accredited stakes races shall be weight for age. One of the
stakes races shall be the West Virginia Futurity and the second
shall be the Frank Gall Memorial Stakes. For the purpose of
participating in the West Virginia Futurity only, all mares,
starting with the breeding season beginning the first day of
February through the thirty-first day of July, two thousand four,
and each successive breeding season thereafter shall be bred back
that year to an accredited West Virginia stallion only which is
registered with the West Virginia Thoroughbred Breeders
Association. The remaining races may accredited stake races shall
be chosen by the committee set forth in subsection (f) of this
section.
(e) Awards and purses shall be distributed as follows:
(1) The breeders/raisers of accredited thoroughbred horses
that earn a purse at a participating West Virginia meet shall
receive a bonus award calculated at the end of the year as a
percentage of the fund dedicated to the breeders/raisers, which
shall be sixty percent of the fund available for distribution in
any one year. The total amount available for the breeders'/raisers' awards shall be distributed according to the
ratio of purses earned by an accredited race horse to the total
amount earned in the participating races by all accredited race
horses for that year as a percentage of the fund dedicated to the
breeders/raisers. However, no breeder/raiser may receive from the
fund dedicated to breeders'/raisers' awards an amount in excess of
the earnings of the accredited horse at West Virginia meets. In
addition, should a horse's breeder and raiser qualify for the same
award on the same horse, they will each be awarded one half of the
proceeds. The bonus referred to in this subdivision may only be
paid on the first one hundred thousand dollars of any purse and not
on any amounts in excess of the first one hundred thousand dollars.
(2) The owner of a an accredited West Virginia sire of an
accredited thoroughbred horse that earns a purse in any race at a
participating West Virginia meet shall receive a bonus award
calculated at the end of the year as a percentage of the fund
dedicated to sire owners, which shall be fifteen percent of the
fund available for distribution in any one year. The total amount
available for the sire owners' awards shall be distributed
according to the ratio of purses earned by the progeny of
accredited West Virginia stallions in the participating races for
a particular stallion to the total purses earned by the progeny of
all accredited West Virginia stallions in the participating races.
However, no sire owner may receive from the fund dedicated to sire
owners an amount in excess of thirty-five percent of the accredited
earnings for each sire. The bonus referred to in this subdivision shall only be paid on the first one hundred thousand dollars of any
purse and not on any amounts in excess of the first one hundred
thousand dollars.
(3) The owner of an accredited thoroughbred horse that earns
a purse in any participating race at a West Virginia meet shall
receive a restricted purse supplement award calculated at the end
of the year, which shall be twenty-five percent of the fund
available for distribution in any one year, based on the ratio of
the earnings in the races of a particular race horse to the total
amount earned by all accredited race horses in the participating
races during that year as a percentage of the fund dedicated to
purse supplements. However, the owners may not receive from the
fund dedicated to purse supplements an amount in excess of
thirty-five percent of the total accredited earnings for each
accredited race horse. The bonus referred to in this subdivision
shall only be paid on the first one hundred thousand dollars of any
purse and not on any amounts in excess of the first one hundred
thousand dollars.
(4) In no event may purses earned at a meet held at a track
which did not make a contribution to the Thoroughbred Development
Fund out of the daily pool on the day the meet was held qualify or
count toward eligibility for an award under this subsection.
(5) Any balance in the breeders/raisers, sire owners and purse
supplement funds after yearly distributions shall first be used to
fund the races established in subsection (f) of this section. Any
amount not so used shall revert into the general account of the Thoroughbred Development Fund for each racing association or
licensee for distribution in the next year.
Distribution shall be made on the fifteenth day of each
February for the preceding year's achievements.
(f) (1) Each pari-mutuel thoroughbred horse track shall
provide at least one restricted race per racing day: Provided,
That sufficient horses and funds are available. For purposes of
this subsection, there are sufficient horses if there are at least
seven single betting interests received for the race: Provided,
however, That, if sufficient horses and funds are available, any
thoroughbred horse racetrack whose licensee participated in the
Thoroughbred Development Fund for at least four consecutive
calendar years prior to the thirty-first day of December, one
thousand nine hundred ninety-two, shall provide two restricted
races per racing day, at least one of which may be split at the
discretion of the racing secretary. The restricted race required
by this section must be included in the first nine races written in
the condition book for that racing day.
(2) The restricted races established in this subsection shall
be administered by a three-member committee at each track
consisting of:
(A) The racing secretary;
(B) A member appointed by the authorized representative of a
majority of the owners and trainers at the thoroughbred track; and
(C) A member appointed by the West Virginia Thoroughbred
Breeders Association.
(3) The purses for the restricted races established in this
subsection shall be twenty percent larger than the purses for
similar type races at each track or equal to or of greater value
than a comparable race: Provided, That sufficient funds are
available: Provided, however, That the twenty percent requirement
is applicable only to a thoroughbred racetrack which has
participated in the West Virginia Thoroughbred Development Fund for
a period of more than four consecutive calender years prior to the
thirty-first day of December, one thousand nine hundred ninety-two.
(4) (3) Restricted races shall be funded by each racing
association from:
(A) Moneys placed in the general purse fund up to a maximum of
three hundred fifty thousand dollars per year: Provided, That a
thoroughbred horse racetrack which has did not participated in the
West Virginia Thoroughbred Development Fund for a period of more
than four consecutive years prior to the thirty-first day of
December, one thousand nine hundred ninety-two, may fund restricted
races in an amount not to exceed one million five three hundred
fifty thousand dollars from the general purse fund per year.
(B) Moneys as provided in subdivision (5), subsection (e) of
this section, which shall be placed in a special fund called the
"West Virginia Accredited Race Fund".
(5) (4) The racing schedules, purse amounts and types of races
are subject to the approval of the West Virginia Racing Commission.
(6) (5) If less than seventy-five percent of the restricted
races required by this subsection fail to receive enough entries to race, the Racing Commission shall, on a quarterly basis, dedicate
funds in each fund back to the general purse fund of the racing
association or licensee: Provided, That no moneys may be dedicated
back to a general purse fund if the dedication would leave less
than two hundred fifty thousand dollars in the fund.
(g) As used in this section, "West Virginia-bred foal" means
a horse that was born in the State of West Virginia.
(h) To qualify for the West Virginia Accredited Race Fund, the
breeder must qualify under one of the following:
(1) The breeder of the West Virginia-bred foal is a West
Virginia resident;
(2) The breeder of the West Virginia-bred foal is not a West
Virginia resident, but keeps his or her breeding stock in West
Virginia year round; or
(3) The breeder of the West Virginia-bred foal is not a West
Virginia resident and does not qualify under subdivision (2) of
this subsection, but either the sire of the West Virginia-bred foal
is a West Virginia stallion, or the mare is covered only by a West
Virginia accredited stallion or stallions before the thirty-first
day of December of the calendar year following the birth of that
West Virginia-bred foal.
(i) From the first day of July, two thousand one, West
Virginia-accredited thoroughbred horses have preference for entry
in all accredited races at a thoroughbred race track at which the
licensee participates in the West Virginia Thoroughbred Development
Fund.
(j) Beginning the first day of July, two thousand six, any
racing association licensed by the Racing Commission to conduct
thoroughbred racing and permitting and conducting pari-mutuel
wagering under the provisions of this article must have a West
Virginia thoroughbred racing breeders program.
(k) The commission shall, during calendar year two thousand
nine, conduct a study of the adequacy of funding provided for the
Thoroughbred Development Fund at any thoroughbred racetrack which
has not participated in the West Virginia Thoroughbred Development
Fund for a period of more than four consecutive calendar years
prior to the thirty-first day of December, one thousand nine
hundred ninety-two, and shall report its findings and
recommendations to the Joint Committee on Government and Finance on
or before the first day of December, two thousand nine.
On motion of Senator Helmick, the following amendment to the
Finance committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2406) was reported by the Clerk and adopted:
On page twenty-six, section thirteen-b, subsection (f),
subdivision (3), paragraph (A), by striking out the words "three
hundred fifty thousand" and inserting in lieu thereof the words
"one million".
The question now being on the adoption of the Finance
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2406), as amended, was
then ordered to third reading.
Under rule number forty-three of the Rules of the Senate,
Senator Green was excused from voting on any matter pertaining to
the bill.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Boley--1.
Absent: Sharpe--1.
Excused from voting: Green--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2406) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Guills, Hall,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger,
Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley and Caruth--3.
Absent: Sharpe--1.
Excused from voting: Green--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2406) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2406--A Bill to amend and
reenact §19-23-3, §19-23-10 and §19-23-13b of the Code of West
Virginia, 1931, as amended, all relating to horse and dog racing
generally; providing that in the event a yearling was born in
another state and transported to this state, the definition of
"raiser of an accredited West Virginia horse" does not apply to any
pari-mutuel racing facility in Jefferson County; providing for a
five-year sunset provision relative to the applicability of this
definition at any pari-mutuel racing facility in Hancock County;
changing formula for distribution of the Greyhound Breeder
Development Fund moneys to equalize purses by establishment of a
points system as approved by the West Virginia Racing Commission;
authorizing use of reserve balance funds for a training facility;
authorizing the Racing Commission to annually establish appropriate
numbers of West Virginia-whelped greyhounds at racetrack kennels;
sanctions for not kenneling the minimum number of West Virginia-
whelped greyhounds; adding accreditation to the qualification of a
West Virginia thoroughbred sire; adding a minimum of fourteen stakes horse races at Charles Town for restricted races; adding two
restricted races per racing day where sufficient horses and purse
funds are available; funding for additional races at Charles Town;
and continuing limitation on certain purse funds at Mountaineer
Park.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 6:24 p.m. today:
Eng. Com. Sub. for Senate Bill No. 185, Creating Tobacco
Settlement Finance Authority.
The Clerk announced the following conference committee report
had been filed at 6:25 p.m. today:
Eng. Com. Sub. for Senate Bill No. 738, Requiring WV Parkways,
Economic Development and Tourism Authority present proposed toll
revision to Joint Committee on Government and Finance.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Hunter, from the Committee on Energy, Industry and
Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under
consideration
House Concurrent Resolution No. 84, Requesting the Joint
Committee on Government and Finance study prohibiting oil and gas drillers from "daylighting" roads and sites except under certain
conditions.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Jon Blair Hunter,
Vice Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendment, and
requested the appointment of a committee of conference of five from
each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 747, Creating Municipal Home Rule Pilot
Program.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Fleischauer, Shook, Moye, Guthrie and Ellem.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Bowman, McCabe, Minard, White and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from
unfinished business, Senate Concurrent Resolution No. 71.
Senator Chafin also announced that in the same meeting, the
Committee on Rules, in accordance with rule number seventeen of the
Rules of the Senate, had placed consideration of Engrossed
Committee Substitute for House Bill No. 2189, Engrossed Committee
Substitute for House Bill No. 2436, Engrossed House Bill No. 3018,
Engrossed Committee Substitute for House Bill No. 3094 and
Engrossed House Bill No. 3272 preceding consideration of all other
bills on today's third reading calendar.
The Senate proceeded to the seventh order of business.
The President then stated that the hour had arrived for the
special order of business, as to
Eng. Com. Sub. for House Bill No. 2940, Increasing the age of
dependents for health insurance coverage.
Having been amended and passed on Thursday, March 8, 2007, and
the vote thereon having been reconsidered, and now coming up as a
special order, was again reported by the Clerk.
The question being on the adoption of the Banking and
Insurance committee amendment to the bill (shown in the Senate
Journal of Thursday, March 8, 2007, pages 127 through 136,
inclusive), the same was put.
Following discussion and a point of inquiry to the President,
with resultant response thereto,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of the Banking and Insurance committee amendment to the
bill (Eng. Com. Sub. for H. B. No. 2940), the same was put.
The result of the voice vote being inconclusive, Senator
Jenkins demanded a division of the vote.
A standing vote being taken, there were nineteen "yeas" and
seven "nays".
Whereupon, the President declared the Banking and Insurance
committee amendment to the bill adopted.
Thereafter, at the request of Senator Jenkins, and by
unanimous consent, the remarks by Senator Minard regarding the
adoption of the Banking and Insurance committee amendment to
Engrossed Committee Substitute for House Bill No. 2940 were ordered
printed in the Appendix to the Journal.
The bill, as just amended, was again ordered to third reading.
Senator Plymale then moved that the bill be tabled.
The question being on the adoption of Senator Plymale's
motion, the same was put.
The result of the voice vote being inconclusive, Senator
Jenkins demanded a division of the vote.
A standing vote being taken, there were nine "yeas" and
twenty-two "nays".
Whereupon, the President declared Senator Plymale's motion had
not prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2940) was then read a third time and put upon its passage.
Pending discussion and a point of inquiry to the President,
with resultant response thereto,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
passage of Engrossed Committee Substitute for House Bill No. 2940.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Chafin, Deem, Edgell, Fanning, Foster, Green, Hall,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Prezioso,
Sprouse, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--24.
The nays were: Barnes, Caruth, Facemyer, Guills, McKenzie,
Oliverio, Plymale, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2940) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 2940--A Bill to amend and
reenact §5-16-13 of the Code of West Virginia, 1931, as amended; and to amend and reenact §33-16-1a of said code, all relating to
the public employees insurance program and group accident and
sickness insurance; and increasing the age of certain dependents
for health insurance coverage.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Boley, Bowman,
Chafin, Deem, Edgell, Fanning, Foster, Green, Hall, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, Minard, Prezioso, Sprouse,
Stollings, Unger, Wells, White and Tomblin (Mr. President)--24.
The nays were: Barnes, Caruth, Facemyer, Guills, McKenzie,
Oliverio, Plymale, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2940) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 35, Urging Congress
reauthorize State Health Insurance Program.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 57, Requesting Joint Committee on Government and Finance study intrastate natural and
methane gas pipeline capacity.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 58, Requesting the Joint
Committee on Government and Finance study methods to encourage
PROMISE scholarship recipients to remain in West Virginia.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 62, Requesting Division of
Highways name bridge in Berkeley County "Allensville Memorial
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 71, Requesting Joint
Committee on Government and Finance study taxation and valuation of
managed timberland.
Having been removed from unfinished business in earlier
proceedings today, no further action thereon was taken.
Senate Concurrent Resolution No. 77, Requesting Joint
Committee on Government and Finance study certificate of need
review process within Health Care Authority.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 78, Requesting Joint
Committee on Government and Finance study animal protection laws
for horses.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
House Concurrent Resolution No. 40, Requesting the
establishment of a Children's Services Redesign Group.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2189, Relating to substitute
service personnel seniority.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2189) passed.
At the request of Senator Plymale, as chair of the Committee
on Education, and by unanimous consent, the unreported Education
committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2189--A Bill to amend and
reenact §18-1-1 of the Code of West Virginia, 1931, as amended; to
amend and reenact §18-5-13 of said code; to amend and reenact §18-
20-2 of said code; to amend and reenact §18A-1-1 of said code; to
amend said code by adding thereto two new sections, designated
§18A-4-7c and §18A-4-10f; to amend and reenact §18A-4-8, §18A-4-8b,
§18A-4-8f, §18A-4-8g, §18A-4-10 and §18A-4-15 of said code; and to
amend and reenact §18A-5-8 of said code, all relating to public
schools and county boards of education; school service personnel;
personal leave and leave banks for school personnel; authority of
county boards of education; updating definitions; expanding
purposes for which schools may expend funds; establishing certain
vehicle and driver safety requirements for transporting students to
a school-sponsored activity; expanding the purposes for which
county boards may lease school buses; giving preference to a
currently employed professional educator for summer employment;
establishing service personnel classification title for licensed
practical nurse; adding posting and notice requirements for filling
service personnel positions; prohibiting displacement of aides to
create vacancy for licensed practical nurse; establishing
parameters for the workday and beginning work station for certain
service personnel; modifying process for determining certain
service personnel hiring priority in cases of school merger or
consolidation; authorizing transfer of personal leave in certain
circumstances; modifying employment benefits accrued by substitute
service personnel; requiring county boards of education to make certain training available to all regularly employed teachers'
aides; prohibiting an autism mentor or aide who works with autistic
students from transferring to another position after the fifth day
prior to the beginning of the instructional term under certain
conditions; deleting obsolete language; and making technical
corrections.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2436, Modifying the Nurse
Overtime and Patient Safety Act.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2436) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2436--A Bill to amend and
reenact §21-5F-3 and §21-5F-4 of the Code of West Virginia, 1931,
as amended, all relating to modifying the Nurse Overtime and
Patient Safety Act; requiring posting of notice of nurses' rights;
requiring Commissioner of Labor to establish by rule a notification
procedure, including signs that must be posted; and requiring
commissioner to keep complaints anonymous until a finding of merit.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3018, Limiting the duplication of
publication costs in the administration of certain estates.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 3018) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3094, Prohibiting county and
district school officers, teachers and school officials from having
a pecuniary interest in certain contracts.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3094) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3094--A Bill to amend and
reenact §61-10-15 of the Code of West Virginia, 1931, as amended,
relating to prohibiting county and district officers, teachers and
school officials from having a pecuniary interest in certain
contracts; and exemptions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3272, Relating to total return unitrusts.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3272) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, the Senate returned to the sixth order of business, which
agenda includes the making of main motions.
Senator Unger moved that the Senate reconsider the vote by
which in earlier proceedings today it rejected Senator Chafin's
motion to suspend the constitutional rule requiring a bill to be
read on three separate days, as to
Eng. Com. Sub. for House Bill No. 3167, Allowing teachers employed by a statewide service personnel association to count this
service towards retirement credit.
The question being on the adoption of Senator Unger's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Unger
demanded a division of the vote.
A standing vote being taken, there were eighteen "yeas" and
thirteen "nays".
Whereupon, the President declared Senator Unger's
reconsideration motion had prevailed.
The question again being on the adoption of Senator Chafin's
motion to suspend the constitutional rule requiring a bill to be
read on three separate days.
Senator Oliverio then moved further consideration of the bill
(Eng. Com. Sub. for H. B. No. 3167) be made a special order of
business following consideration of executive nominations having
been previously set as a special order for 8 p.m. tonight.
Which motion, the President ruled out of order.
The question again being on the adoption of Senator Chafin's
motion to suspend the constitutional rule requiring a bill to be
read on three separate days.
The roll being taken, the yeas were: Bailey, Barnes, Bowman,
Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall,
Helmick, Hunter, Kessler, Love, McCabe, McKenzie, Plymale,
Stollings, Unger, Wells, White and Tomblin (Mr. President)--23.
The nays were: Boley, Caruth, Deem, Jenkins, Minard, Oliverio, Prezioso, Sprouse, Sypolt and Yoder--10.
Absent: Sharpe--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Moore, Long and Lane.
Pending announcement of a meeting of the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 8 p.m.
tonight.
Night Session
Upon expiration of the recess, the Senate reconvened and
proceeded to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted
the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated February 6, 2007, requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1.For Member, Board of Optometry, Dr. Glenn S. Bailey,
Barboursville, Cabell County, for the term ending June 30, 2009.
2.For Member, Bluefield State College Board of Governors,
Dr. Louis Aikens, Winston-Salem, North Carolina, for the term
ending June 30, 2010.
3.For Member, Bluefield State College Board of Governors,
John Shott, Bluefield, Mercer County, for the term ending June 30,
2010.
4.For Member, Bluefield State College Board of Governors,
Larry Morhous, Bluefield, Mercer County, for the term ending June
30, 2010.
5.For Member, Bluefield State College Board of Governors,
Gloria Stephens, Welch, McDowell County, for the term ending June
30, 2010.
6.For Member, Nursing Home Administrators Licensing Board,
Rose Green, Milton, Cabell County, for the term ending June 30,
2012.
7.For Member, Board of Dental Examiners, Debra D. Dent,
Union, Monroe County, for the term ending June 30, 2011.
8.For Member, Board of Dental Examiners, Dr. Richard Duff
Smith, Charleston, Kanawha County, for the term ending June 30,
2011.
9.For Member, Board of Dental Examiners, Dr. George D. Conard, Huntington, Cabell County, for the term ending June 30,
2011.
10.For Secretary, Department of Revenue, Rob Alsop,
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
11.For Executive Director, School Building Authority, The
Honorable Mark Manchin, Welch, McDowell County, to serve at the
will and pleasure of the Governor.
12.For Member, Board of Examiners for Registered
Professional Nurses, Robin Walton, Huntington, Cabell County, for
the term ending June 30, 2011.
13.For Member, Board of Examiners for Registered
Professional Nurses, Cynthia Persily, Charleston, Kanawha County,
for the term ending June 30, 2010.
14.For Member, Board of Examiners for Registered
Professional Nurses, Judy Nystrom, Welch, McDowell County, for the
term ending June 30, 2009.
15.For Member, West Virginia University Board of Governors,
Andrew Payne III, Charleston, Kanawha County, for the term ending
June 30, 2010.
16.For Member, Probable Cause Review Board, Brad Crouser,
Charleston, Kanawha County, for the term ending June 30, 2008.
17.For Member, Racing Commission, Fred C. Peddicord III,
Kingwood, Preston County, for the term ending April 1, 2008.
18.For Member, Shepherd University Board of Governors, Lauri
M. Bridgeforth, Winchester, Virginia, for the term ending June 30, 2009.
19.For Member, Shepherd University Board of Governors, Doris
Griffin, Martinsburg, Berkeley County, for the term ending June 30,
2009.
20.For Member, Shepherd University Board of Governors, Gat
Caperton, Berkeley Springs, Morgan County, for the term ending June
30, 2010.
21,For Member, Housing Development Fund, Julia Elbon,
Elkins, Randolph County, for the term ending October 30, 2010.
22.For Member, Housing Development Fund, Richard Bowlby,
Spencer, Roane County, for the term ending October 30, 2010.
23.For Member, Aeronautics Commission, Gerald R. Sites,
Petersburg, Grant County, for the term ending June 30, 2010.
24.For Member, Education and State Employees Grievance
Board, Joe E. Miller, Hurricane, Putnam County, for the term ending
June 30, 2009.
25.For Member, West Virginia University Board of Governors,
Carolyn Long, Sutton, Braxton County, for the term ending June 30,
2010.
26.For Commissioner, Division of Labor, David Mullins,
Ripley, Jackson County, to serve at the will and pleasure of the
Governor.
27.For Member, Higher Education Policy Commission, David K.
Hendrickson, Charleston, Kanawha County, for the term ending June
30, 2010.
28.For Member, Higher Education Policy Commission, John Estep, Richwood, Nicholas County, for the term ending June 30,
2009.
29.For Member, Consolidated Public Retirement Board, Shelly
L. Stead, Grafton, Taylor County, for the term ending June 30,
2008.
30.For Member, Consolidated Public Retirement Board, The
Honorable Charles C. Lanham, Point Pleasant, Mason County, for the
term ending June 30, 2007.
31.For Secretary, Department of Commerce, Kelley Goes, Scott
Depot, Putnam County, to serve at the will and pleasure of the
Governor.
32.For Member, Parole Board, Benita Murphy, Logan, Logan
County, for the term ending June 30, 2012.
33.For Member, Parole Board, Peggy Pope, Charleston, Kanawha
County, for the term ending June 30, 2012.
34.For Chairman, Parole Board, Dennis W. Foreman,
Barboursville, Cabell County, for the term ending June 30, 2013.
35.For Member, Parole Board, Steve Svokas, Weirton, Hancock
County, for the term ending June 30, 2011.
36.For Member, Board of Examiners of Psychologists, Terry
Sigley, Morgantown, Monongalia County, for the term ending June 30,
2009.
37.For Member, Board of Examiners of Psychologists, Robert
Childers, Washington, Wood County, for the term ending June 30,
2008.
38.For Member, Board of Examiners of Psychologists, Tina Yost, Fairmont, Marion County, for the term ending June 30, 2009.
39.For Member, Board of Examiners of Psychologists, Lane
Wagaman, Lewisburg, Greenbrier County, for the term ending June 30,
2008.
40.For Member, Board of Examiners of Psychologists, Lois
Merritt, Huntington, Cabell County, for the term ending June 30,
2009.
41.For Member, Board of Examiners of Psychologists, Reverend
Father Jude Molnar, Fairmont, Marion County, for the term ending
June 30, 2008.
42.For Member, Board of Registration for Sanitarians,
Michael Eltzroth, Ronceverte, Greenbrier County, for the term
ending June 30, 2011.
43.For Member, Board of Registration for Sanitarians, Lloyd
White, Worthington, Marion County, for the term ending June 30,
2008.
44.For Member, Board of Registration for Sanitarians,
Richard L. Wheeler, Gerrardstown, Berkeley County, for the term
ending June 30, 2010.
45.For Member, Board of Registration for Sanitarians, Steven
R. Bayer, Washington, Wood County, for the term ending June 30,
2007.
46.For Member, Board of Registration for Sanitarians, Anita
Ray, Culloden, Cabell County, for the term ending June 30, 2009.
47.For Member, Regional Jail and Correctional Facility
Authority, Dr. I. Frank Hartman, Buckhannon, Upshur County, for the term ending June 30, 2009.
48.For Member, West Virginia Northern Community College
Board of Governors, Dr. Darrell Cummings, Wheeling, Ohio County,
for the term ending June 30, 2009.
49.For Member, School Building Authority, Steve Burton,
Prichard, Wayne County, for the term ending July 31, 2009.
50.For Member, School Building Authority, Robert E. Holroyd,
Princeton, Mercer County, for the term ending July 31, 2009.
51.For Member, Family Protection Services Board, Judith
Ball, Parkersburg, Wood County, for the term ending June 30, 2009.
52.For Member, Family Protection Services Board, Barbara
Hawkins, Princeton, Mercer County, for the term ending June 30,
2007.
53.For Member, Family Protection Services Board, Judy King
Smith, Morgantown, Monongalia County, for the term ending June 30,
2008.
54.For Member, Records Management and Preservation Board,
Betsy Castle, Kingwood, Preston County, to serve at the will and
pleasure of the Governor.
55.For Member, Records Management and Preservation Board,
Diana N. Cromley, Point Pleasant, Mason County, to serve at the
will and pleasure of the Governor.
56.For Member, Records Management and Preservation Board,
Lonnie R. Mullins, Hinton, Summers County, to serve at the will and
pleasure of the Governor.
57.For Member, Records Management and Preservation Board, Timothy L. Sweeney, St. Marys, Pleasants County, to serve at the
will and pleasure of the Governor.
58.For Member, Records Management and Preservation Board,
Stephen Shuman, Morgantown, Monongalia County, to serve at the will
and pleasure of the Governor.
59.For Member, Records Management and Preservation Board,
Ottie Adkins, Huntington, Cabell County, to serve at the will and
pleasure of the Governor.
60.For Member, Records Management and Preservation Board,
Kim Wolfe, Huntington, Cabell County, to serve at the will and
pleasure of the Governor.
61.For Member, Board of Pharmacy, Martin Castleberry, South
Charleston, Kanawha County, for the term ending June 30, 2008.
62.For Member, Public Service Commission, Michael A. Albert,
Charleston, Kanawha County, for the term ending June 30, 2007.
63.For Member, State Conservation Committee, Boyd Meadows,
Milton, Cabell County, for the term ending September 6, 2010.
64.For Member, State Conservation Committee, Jim Ash, Alma,
Tyler County, for the term ending September 6, 2010.
65.For Member, Concord University Board of Governors, Lane
Bailey, Fairfax Station, Virginia, for the term ending June 30,
2009.
66.For Member, Veterans' Council, Donel Kinnard, Hurricane,
Putnam County, for the term ending June 30, 2012.
67.For Member, Veterans' Council, Ralph Stump, St. Albans,
Kanawha County, for the term ending June 30, 2012.
68.For Member, Commission on the Arts, Cindy McGhee,
Charleston, Kanawha County, for the term ending June 30, 2009.
And,
Senate Executive Message No. 4, dated March 2, 2007,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 4
is submitted:
1.For Director, Division of Rehabilitation Services,
Deborah Lovely, South Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
2.For Member, Glenville State College Board of Governors,
Jim Estep, Morgantown, Monongalia County, for the term ending June
30, 2010.
3.For Member, Glenville State College Board of Governors,
Thomas McPherson, Glenville, Gilmer County, for the term ending
June 30, 2010.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Shirley Love,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:
Senate Executive Message No. 2, dated February 6, 2007 (shown
in the Senate Journal of February 7, 2007, pages 2 through 9,
inclusive).
And,
Senate Executive Message No. 4, dated March 2, 2007 (shown in
the Senate Journal of March 5, 2007, pages 43 and 44).
Senator Love then moved that the Senate advise and consent to
the executive nominations referred to in the foregoing report from
the Committee on Confirmations.
The question being on the adoption of Senator Love's
aforestated motion,
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
aforestated motion had prevailed.
__________
Consideration of executive nominations having been concluded,
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports
had been filed at 8:34 p.m. tonight:
Eng. Com. Sub. for House Bill No. 2051, Including lasers as a
method of proving the speed of vehicles.
Eng. Com. Sub. for House Bill No. 2498, Relating to sexual
offenses involving children.
And,
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 67, Relating
to school access safety generally.
The Clerk announced the following conference committee reports
had been filed at 8:35 p.m. tonight:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 541, Relating
to public school finance.
Eng. Com. Sub. for Senate Bill No. 603, Establishing 21st
Century Tools for 21st Century Schools Technology Initiative.
And,
Eng. Senate Bill No. 657, Requiring State Board of Education
incorporate 21st Century Skills Initiative into certain standards.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Senate Bill No. 371, Exempting certain professional
services from consumers sales and service tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section eight, line seventeen, after the word
"embalmers," by inserting the words "licensed funeral directors,";
On
page three, section eight, line nineteen
, after the word
"reporters," by inserting the words "court room videographer or a
videographer working under the direction of a court reporter not
taxable under this article or a licensed attorney,";
On page three, section eight, after line twenty-seven, by
adding the following:
ARTICLE 21. PERSONAL INCOME TAX.
Part I. General.
§11-21-10b. Credit for expense of reprogramming cash register.
On and after the first day of July, two thousand seven, a
credit is allowed against the tax imposed by the provisions of this
article in the amount of one hundred dollars to any eligible
taxpayer engaging in a business activity classified as having a
sector identifier consisting of the first three digits of the
six-digit North American Industry Classification System code number
of 445, or engaging in a business activity classified as having a sector identifier consisting of the six-digit North American
Industry Classification System code number of 446110 or 447110:
Provided, That the credit authorized by this section may be applied
in any taxable year in which the eligible taxpayer was required to
reprogram its cash registers because of a change in the consumers
sales and service tax rate imposed by section three-a, article
fifteen of this chapter on sales of food and food ingredients:
Provided, however, That only a taxpayer with gross revenue that is
less than two million dollars for the immediately preceding taxable
year is eligible to use the credit authorized by this section.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11b. Credit for expense of reprogramming cash register.
On and after the first day of July, two thousand seven, a
credit is allowed against the tax imposed by the provisions of this
article in the amount of one hundred dollars to any eligible
taxpayer engaging in a business activity classified as having a
sector identifier consisting of the first three digits of the
six-digit North American Industry Classification System code number
of 445, or engaging in a business activity classified as having a
sector identifier consisting of the six-digit North American
Industry Classification System code number of 446110 or 447110:
Provided, That the credit authorized by this section may be applied
in any taxable year in which the eligible taxpayer was required to
reprogram its cash registers because of a change in the consumers
sales and service tax rate imposed by section three-a, article
fifteen of this chapter on sales of food and food ingredients: Provided, however, That only a taxpayer with gross revenue that is
less than two million dollars for the immediately preceding taxable
year is eligible to use the credit authorized by this section.;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §11-15-8 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 §11-21-10b; and that said code be
amended by adding thereto a new section, designated §11-24-11b, all
to read as follows:.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the bill
(Eng. S. B. No.
371).
The following House of Delegates amendments to the bill were
next reported by the Clerk:
On
page three, section eight, line nineteen, by striking out
the words"registered lobbyists,";
And,
On page three, section eight, line twenty-seven, after the
word "commissioner" by changing the period to a colon and inserting
the following proviso: Provided, That the exemption for
professional and personal services does not include registered
lobbyists; nor does the exemption for professional and personal
services include lawyers when performing "lobbying" or "lobbying
activity" as defined by section one, article three, chapter six-b of this code.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 371) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Fanning, Stollings and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid waste service.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Jenkins, Hunter and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Plymale, and by unanimous consent,
Senator Plymale addressed the Senate regarding the committee of
conference as to Engrossed Senate Bill No. 336 (Relating to higher
education generally).
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:42 p.m. tonight:
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
Senator Chafin, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 738, Requiring WV Parkways,
Economic Development and Tourism Authority present proposed toll
revision to Joint Committee on Government and Finance.
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. 738 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 recede from its amendments to the
bill and its title.
Respectfully submitted,
H. Truman Chafin, Chair, Ron Stollings, Donald T. Caruth,
Conferees on the part of the Senate.
Marshall Long, Chair, Clif Moore, Thomas Mike Porter,
Conferees on the part of the House of Delegates.
Senator Chafin, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Chafin, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 738, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--31.
The nays were: Deem and Love--2.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 738) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie,
Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt,
Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Deem and Love--2.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 738) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Varner, Wysong and Lane.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid
waste service.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Pino, Stemple and Hamilton.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 403, Increasing sealed bids' limitation
for certain purchases and contracts by ambulance service
authorities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page two, section sixteen, line five, by striking out the
word "twenty-five" and inserting in lieu thereof the word "ten".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 403, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 403) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 405, Relating to direct deposit payment.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By
striking out everything after the enacting clause and inserting in lieu thereof the following:
That §12-3-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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 is
sufficient authority to the Auditor to issue a warrant for the same
or any party thereof.
(b) The Auditor:
(1) Shall accept an electronic requisition from Marshall
University and West Virginia University in an unaltered format
approved by the Auditor;
(2) May accept or require an electronic requisition from any
entity other than Marshall University or West Virginia University
at his or her discretion in an unaltered format approved by the
Auditor; and
(3) May not issue a warrant for an amount that exceeds the
appropriation or for an expired appropriation.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 405--A Bill to amend and reenact §12-3-5
of the Code of West Virginia, 1931, as amended, relating to electronic requisition format approved by the Auditor; and
providing that the Auditor may set standards for archiving
electronic and paper documents related to requisitions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 405, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 405) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 406, Including qualified continuing care
retirement communities under Tax Limitations Amendment provisions.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page six, section three, after line one hundred two, by
adding the following:
Effective date of amendments. -- Amendments to this section
enacted during the regular session of the Legislature in the year
two thousand seven shall take effect on the first day of July, two
thousand seven.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 406, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Kessler, Love and Sypolt--3.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 406) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 475, Allowing appellant
file stay with Board of Zoning Appeals.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
ARTICLE 8. BOARD OF ZONING APPEALS.
§8A-8-11. Notice and hearing of appeal.
(a) Within ten days of receipt of the appeal by the Board of
Zoning Appeals, the board shall set a time for the hearing of the
appeal and give notice. The hearing on the appeal must be held
within forty-five days of receipt of the appeal by the board.
(b) At least fifteen days prior to the date set for the
hearing on the appeal, the Board of Zoning Appeals shall publish a
notice of the date, time and place of the hearing on the appeal as
a Class I legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code and written notice
shall be given to the interested parties. The publication area
shall be the area covered in the appeal.
(c) The Board of Zoning Appeals may require the party taking the appeal to pay for the cost of public notice and written notice
to interested parties.
(d) At the hearing, any party may appear in person, by agent
or by an attorney licensed to practice in this state.
(e) Every decision by the board must be in writing and state
findings of fact and conclusions of law on which the board based
its decision. If the board fails to provide findings of fact and
conclusions of law adequate for decision by the circuit court and
as a result of the failure, the circuit court returns an appealed
matter to the board and dismisses jurisdiction over an applicant's
appeal without deciding the matter, whether the court returns the
matter with or without restrictions, the board shall pay any
additional costs for court filing fees, service of process and
reasonable attorneys' fees required to permit the person appealing
the board's decision to return the matter to the circuit court for
completion of the appeal.
(f) The written decision by the board shall be rendered within
thirty days after the hearing. If the board fails to render a
written decision within thirty days after the hearing, then any
party may pursue additional legal remedies to obtain a decision,
including, but not limited to, seeking a writ of mandamus.
§8A-8-12. Stays; exception.
(a) When an appeal has been filed with the Board of Zoning
Appeals, all proceedings and work on the premises in question shall
be stayed, unless except as provided in subsection (b) of this
section.
(b) A stay may not be had:
(1) If the official or board from where the appeal was taken
certifies in writing to the Board of Zoning Appeals that a stay
would cause imminent peril to life or property;
(2) Upon further administrative proceedings, including, but
not limited to, submissions to and reviews by the staff or any
administrative body; or
(3) Upon engineering or architectural work that does not
disturb the real estate beyond what is necessary to complete
engineering, survey work or other tests.
(c) If the written certification is filed pursuant to
subdivision (1), subsection (b) of this section, then proceedings
or work on the premises shall not be stayed.
(d) Nothing in this section prevents a party from obtaining a
restraining order.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 475, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 475) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 601, Revising provisions
governing motor vehicle dealers' establishment or relocation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page seven, section three, line ninety-nine, after the word
"dealership" by changing the period to a colon and adding the
following proviso: Provided, That a fifteen-mile relevant market
area as it existed prior to the effective date of this statute
shall apply to any proposed new motor vehicle dealership as to
which a manufacturer or distributor and the proposed new motor
vehicle dealer have executed on or before the effective date of
this statute a written agreement, including a letter of intent,
performance agreement or commitment letter, concerning the
establishment of the proposed new motor vehicle dealership.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 601, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 601) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 601) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:54 p.m. tonight:
Eng. Senate Bill No. 747, Creating Municipal Home Rule Pilot
Program.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 672, Including boat
retailers in special method for appraising dealer vehicle
inventory.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting clause and
inserting in lieu thereof the following:
That §11-6C-1, §11-6C-2, §11-6C-3, §11-6C-4 and §11-6C-5 of
the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6C. SPECIAL METHOD FOR APPRAISING DEALER VEHICLE
INVENTORY, DEALER MOTORBOAT INVENTORY, DAILY
PASSENGER RENTAL CAR INVENTORY AND HOUSE TRAILER
AND FACTORY-BUILT HOMES INVENTORY.
§11-6C-1. Inventory included within scope of article.
Notwithstanding any other provisions of law, inventory of
vehicles, as that term is defined in section one, article one,
chapter seventeen-b of this code, that is held for sale or lease by
new or used vehicle dealers licensed under the provisions of
article six, chapter seventeen-a of this code, provided that house
trailers and factory-built homes shall be included within the scope
of this article or held for sale or lease by daily passenger car
rental businesses licensed under the provisions of article six-d of
said chapter, and inventory of motorboats, as that term is defined
in section one, article six of said chapter, that is held for sale
or lease by a recreational vehicle dealer, as that term is defined
in said section, that is licensed under the authority of section
three of said article, consisting of individual units of personal
new or used property, each unit of which, upon its sale to a retail
purchaser, must, as a matter of law, be titled in the name of the
retail purchaser and registered with the Division of Motor
Vehicles, shall be appraised for assessment purposes, as set forth
in this article: Provided, That house trailers and factory-built
homes shall be included within the scope of this article.
This article does not apply to units of inventory which are included in fleet sales, transactions between dealers or classified
as heavy duty trucks of sixteen thousand pounds or more gross
vehicular weight. For purposes of this article, inventory subject
to the provisions of this article shall be denoted "dealer vehicle
inventory", "dealer motorboat inventory", "daily passenger rental
car inventory" and "house trailer and factory-built homes
inventory".
§11-6C-2. Method for determining market value of dealer vehicle
inventory, dealer motorboat inventory, daily passenger
rental car inventory and house trailer and factory-
built homes inventory.
(a) For purposes of appraisal, the market value of dealer
vehicle inventory and dealer motorboat inventory, as of the first
day of July of each year, shall be the gross sales or total annual
sales of such inventory made by such dealer during the preceding
calendar year, divided by twelve, for a dealer with respect to
which or whom sales were made during the entire preceding year.
For the purposes of this article, "gross sales" or "total annual
sales" means the amount received in money, credits, property,
services or other consideration from sales within this state
without deduction on account of the cost of the property sold,
amounts paid for interest or any other expenses whatsoever. Gross
sales or total annual sales shall not be reduced by the value of an
item of tangible personal property which is traded in for the
purpose of reducing the purchase price of the item purchased. In
the case of dealers who were not in business during the entire calendar year immediately preceding the first day of July of that
calendar year, the assessor shall estimate the market value of such
inventory based on such data as may be available to him or her:
Provided, That the assessor may extrapolate estimates using such
sales data as may be available and reliable when sales are made for
a period of three months or more during the prior year: Provided,
however, That there shall be excluded from the appraisal
calculations the value of those units which were not physically
held as inventory by the owner of the inventory at any time during
the preceding year. In all cases, the market value, so derived,
shall serve as the basis for calculating the appraised value.
(b) For purposes of appraisal, the market value of daily
passenger rental car inventory, as of the first day of July of each
year, shall be the gross value of all daily passenger rental cars
made available by a daily passenger rental car business on the
first day of each month of the immediately preceding calendar year:
Provided, That the daily passenger rental car business shall add
together the gross values and divide that sum by twelve. For
purposes of this article, "gross value" means the lowest value for
each vehicle as shown in a nationally accepted used car guide
determined by the Tax Commissioner. To calculate the "gross value"
of any vehicle that does not appear in a nationally accepted used
car guide, the Tax Commissioner shall determine the percent of the
manufacturer's suggested retail price for each such vehicle held as
a daily passenger rental car without deduction on account of the
cost of any inventory, amounts paid for interest or any other expenses whatsoever. In the case of daily passenger rental car
businesses that were not in business during the entire calendar
year immediately preceding the first day of July of that calendar
year, the assessor shall estimate the market value of such daily
passenger rental car inventory based on such data as may be
available to him or her: Provided, however, That the assessor may
extrapolate estimates using the daily passenger rental car data
that is made available and reliable when rentals were made for a
period of three months or more during the prior year: Provided
further, That there shall be excluded from the appraisal
calculations the value of those units which were not physically
held as daily passenger rental car inventory by the owner of the
daily passenger rental car inventory at any time during the
preceding year. In all cases, the gross value of daily passenger
rental car inventory, so derived, shall serve as the basis for
calculating the appraised value of the inventory. For purposes of
this article, "daily passenger rental car inventory" includes all
motor vehicles licensed as a Class A motor vehicle as defined in
section one, article ten, chapter seventeen-a of this code.
(c) For purposes of appraisal, the market value of house
trailer and factory-built homes inventory, as of the first day of
July of each year, shall be the gross sales or total annual sales
of such inventory made by such dealer during the preceding calendar
year, divided by twelve, for a dealer with respect to which or whom
sales were made during the entire preceding year. For the purposes
of this article, "gross sales" or "total annual sales" means the amount received in money, credits, property, services or other
consideration from sales within this state without deduction on
account of the cost of the property sold, amounts paid for interest
or any other expenses whatsoever. Gross sales or total annual sales
shall not be reduced by the value of an item of tangible personal
property which is traded in for the purpose of reducing the
purchase price of the item purchased. In the case of dealers who
were not in business during the entire calendar year immediately
preceding the first day of July of that calendar year, the assessor
shall estimate the market value of such inventory based on such
data as may be available to him or her: Provided, That the
assessor may extrapolate estimates using such sales data as may be
available and reliable when sales are made for a period of three
months or more during the prior year: Provided, however, That
there shall be excluded from the appraisal calculations the value
of those units which were not physically held as inventory by the
owner of the inventory at any time during the preceding year. In
all cases, the market value, so derived, shall serve as the basis
for calculating the appraised value.
§11-6C-3. Owner to file return estimating market value.
The owner of dealer vehicle inventory, daily passenger rental
car inventory, dealer motorboat inventory or house trailer and
factory-built homes inventory shall report the market value of such
inventory, derived as set forth in section two of this article, to
the assessor, as a part of the return required by law to be filed
annually pursuant to the provisions of this chapter.
§11-6C-4. Determination of tax on dealer vehicle inventory, daily
passenger rental car inventory, dealer motorboat
inventory or house trailer and factory-built homes
inventory.
The annual amount of tax levied upon the dealer vehicle
inventory, daily passenger rental car inventory, dealer motorboat
inventory or house trailer and factory-built homes inventory
pursuant to article eight of this chapter shall be based upon the
market value as determined pursuant to this article, times the
assessment percentage then provided by law.
§11-6C-5. Intent of this article; Tax Commissioner to promulgate
rules.
(a) This article is adopted to address the lack of uniformity,
audit difficulties and business management issues arising in this
state with respect to the assessment of the personal property held
as new and used dealer vehicle inventory, daily passenger rental
car inventory, dealer motorboat inventory or house trailer and
factory-built homes inventory. Accordingly, the Legislature finds
and declares that the adoption of this article will provide a more
reliable and uniform method of determining market value of dealer
vehicle inventory, daily passenger rental car inventory, dealer
motorboat inventory or house trailer and factory-built homes
inventory; minimize audit problems associated with such property;
provide a predictable revenue stream for levying bodies; maximize
the owner's ability to manage inventory; and provide clear guidance
to local authorities by superseding the wide variety of otherwise lawful appraisal methods now in use in this state.
(b) The Tax Commissioner shall have the power to promulgate
such rules as may be necessary to implement the provisions of this
article.: Provided, That the tax commissioner shall provide to the
joint committee on government and finance by the first day of March
for the next two fiscal years a report detailing the results of the
administration of this article.;
And,
By striking out the title and substituting therefor a new
title,
to read as follows:
Eng. Com. Sub. for Senate Bill No. 672--A Bill to
amend and
reenact §11-6C-1, §11-6C-2, §11-6C-3, §11-6C-4 and §11-6C-5 of the
Code of West Virginia, 1931, as amended, all relating to the
special method for appraising dealer vehicle inventory generally;
including dealer boat inventory and daily passenger rental car
inventory in the special method for appraising dealer vehicle
inventory; providing the method for determining the market value of
passenger rental cars held in inventory of daily passenger car
rental businesses; providing the method for determining the market
value of dealer motorboat inventory held by a recreational vehicle
dealer; and providing the method for determining the market value
of house trailers and factory-built homes
.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 672, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 672) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:56 p.m. tonight:
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2007, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 690, Exempting consumers sales and
service tax on highway construction and maintenance materials.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page thirty-three, section nine, lines six hundred thirty-
one through six hundred thirty-three, by striking out the words
"
the reimbursement shall be to Division of Highways: Provided,
however, That at the end
" and inserting in lieu thereof the words
"in lieu of any refund or credit to the person that paid the tax
imposed by this article, the Tax Commissioner shall pay to the
Division of Highways for deposit into the State Road Fund of the
state reimbursement for the tax in the amount estimated under the
provisions of this subdivision: Provided, however, That by the
fifteenth day of June";
And,
On page thirty-four, section nine, line six hundred forty-two,
after the word "maintenance." by adding the following: The amount
of the reimbursement shall be calculated at six percent of the
forty percent.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 690, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 690) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 690) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 707, Increasing jail processing fee
amount.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On pages two and three, section thirty, lines seventeen and
eighteen, by striking out the words "a receipt for the amount
paid,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 707, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 707) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 707) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 9 p.m. tonight:
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid
waste service.
Senator Bowman, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 178, Allowing counties to
increase hotel occupancy tax.
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. 178 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 of Delegates on page twelve, section
fourteen, and that the Senate and House agree to an amendment as
follows:
On page twelve, section fourteen, line one hundred fifty-two,
after the word "exist" by changing the period to a semicolon and
inserting the following: or
(10) Support and operation of the Hatfield-McCoy Recreation
Area by the participating county commissions in the Hatfield-McCoy
Regional Recreational Authority.;
And,
That the Senate agree to all other amendments of the House of
Delegates to the bill, including the House of Delegates amendment
to the title.
Respectfully submitted,
Edwin J. Bowman, Chair, H. Truman Chafin, John Yoder,
Conferees on the part of the Senate.
Thomas W. Campbell, Chair, Jack Yost, Mitch Carmichael,
Conferees on the part of the House of Delegates.
Senator Bowman, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Bowman, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 178, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 178) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Foster, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 438, Relating to Investment Management
Board.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment
of the House to Engrossed Senate Bill No. 438 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That the Senate agree to the amendment of the House of
Delegates to the bill striking out everything after the enacting
clause, excepting sections nine-c and twelve;
That the House of Delegates recede from its amendment as to
section nine-c;
That both houses recede from their respective positions as to
the amendment of the House of Delegates on pages twelve through
twenty, section twelve, and that the Senate and House agree to an
amendment as follows:
§12-6-12. Investment restrictions.
(a) The board shall hold in nonreal estate equity investments
no more than sixty seventy-five percent of the assets managed by
the board and no more than sixty seventy-five percent of the assets
of any individual participant plan or the consolidated fund.
(b) In addition to any investments the board may make pursuant
to subsection (h) of this section, the board shall hold in real
estate equity investments no more than twenty-five percent of the
assets managed by the board and no more than twenty-five percent of
the assets of any individual participant plan: Provided, That any
such investment be only made upon the recommendation by a
professional, third-party fiduciary investment adviser registered
with the Securities and Exchange Commission under the Investment
Advisors Act of 1940, as amended, upon the approval of the board or a committee designated by the board, and upon the execution of the
transaction by a third-party investment manager: Provided,
however, That the board's ownership interest in any fund is less
than forty percent of the fund's assets at the time of purchase:
Provided further, that the combined investment of institutional
investors, other public sector entities, and educational
institutions and their endowments and foundations in the fund is in
an amount equal to or greater than fifty percent of the board's
total investment in the fund, at the time of acquisition. For the
purposes of this subsection, "fund" means a real estate investment
trust traded on a major exchange of the United States of America,
or a partnership, limited partnership, limited liability company or
other entity holding or investing in related or unrelated real
estate investments, at least three of which are unrelated and the
largest of which is not greater than forty percent of the entity's
holdings, at the time of purchase.
(b) (c) The board shall hold in international securities no
more than twenty thirty percent of the assets managed by the board
and no more than twenty thirty percent of the assets of any
individual participant plan or the consolidated fund.
(c) (d) The board may not at the time of purchase hold more
than five percent of the assets managed by the board in the nonreal
estate equity securities of any single company or association:
Provided, That if a company or association has a market weighting
of greater than five percent in the Standard & Poor's 500 index of
companies, the board may hold securities of that nonreal estate equity equal to its market weighting.
(d) The board shall at all times limit its asset allocation
and types of securities to the following:
(1) The board may not hold more than twenty percent of the
aggregate participant plan assets in commercial paper. Any
commercial paper at the time of its acquisition shall be in one of
the two highest rating categories by an agency nationally known for
rating commercial paper;
(2) At no time shall the board hold more than seventy-five
percent of the assets managed by the board in corporate debt. Any
corporate debt security at the time of its acquisition shall be
rated in one of the six highest rating categories by a nationally
recognized rating agency; and
(3) (e) No security may be purchased by the board unless the
type of security is on a list approved by the board. The board may
modify the securities list at any time and shall give notice of
that action pursuant to subsection (g), section three of this
article and shall review the list at its annual meeting.
(e) (f) Notwithstanding the investment limitations set forth
in this section, it is recognized that the assets managed by the
board, or the assets of the consolidated fund or participant plans,
whether considered in the aggregate or individually, may
temporarily exceed the investment limitations in this section due
to market appreciation, depreciation and rebalancing limitations.
Accordingly, the limitations on investments set forth in this
section shall not be considered to have been violated if the board rebalances the assets it manages or the assets of the consolidated
fund or participant plans, whichever is applicable, to comply with
the limitations set forth in this section at least once every six
twelve months based upon the latest available market information
and any other reliable market data that the board considers
advisable to take into consideration, except for those assets
authorized by subsections (b) and (h) of this section, for which
compliance with the percentage limitations shall be measured at
such time as the investment is made.
(f) (g) The board, at the annual meeting provided for required
in subsection (h), section three of this article, shall review,
establish and modify, if necessary, the investment objectives of
the individual participant plans as incorporated in the investment
policy statements of the respective trusts so as to provide for the
financial security of the trust funds giving 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.
(h) In addition to any and all other investments the board may
make under this article and all investment authority granted to the board by this article, the board is expressly authorized to invest
no more than twenty percent of the assets managed by the board, and
no more than twenty percent of the assets of any individual
participant plan, or any other endowment or other fund managed by
the board, as measured at the time of the investment, in any one or
more classes, styles or strategies of alternative investments
suitable and appropriate for investment by the board. A suitable
and appropriate alternative investment is a private equity fund
such as a venture capital, private real estate or buy-out
fund; commodities fund; distressed debt fund; mezzanine debt fund;
hedge fund; put or call on an individual security purchased for the
purpose of hedging an authorized investment position; or fund
consisting of any combination of private equity, distressed or
mezzanine debt, hedge funds, private real estate, commodities and
other types and categories of investment permitted under this
article: Provided, That any such investment be only made upon the
recommendation by a professional, third-party fiduciary investment
adviser registered with the Securities and Exchange Commission
under the Investment Advisors Act of 1940, as amended, upon the
approval of the board or a committee designated by the board, and
upon the execution of the transaction by a third-party investment
manager: Provided, however, That if the standard confidentiality
agreements, policies or procedures of any firm, company or
organization through which the board invests in securities
prohibit, restrict or limit the disclosure of information
pertaining to the securities, the information shall be exempt from disclosure, under the provisions of chapter twenty-nine-b of this
code or otherwise, to the extent of the prohibitions, restrictions
or limitations: Provided further, That the board's ownership
interest in any fund is less than forty percent of the fund's
assets at the time of purchase: And provided further, That the
combined investment of institutional investors, other public sector
entities and educational institutions and their endowments and
foundations in the fund is in an amount equal to or greater than
fifty percent of the board's total investment in the fund, at the
time of acquisition. For the purposes of this subsection, "fund"
means a partnership, limited partnership, limited liability company
or other form of entity holding or investing in a collection of
related or unrelated investments, at least three of which are
unrelated and the largest of which is not greater than forty
percent of the fund's composition, at the time of purchase. To
facilitate access to markets, control, manage or diversify
portfolio risk, or enhance performance or efficiency in connection
with investments in alternative investments and all other types and
categories of investment permitted under this article, the board
may enter into commercially customary and prudent market
transactions consistent with the laws of the state: Provided, That
neither the purpose nor the effect of such transactions may
materially increase market risk or market exposure of the total
portfolio of investments as adjusted, from time to time, by the
board. The investments described in this subsection are subject to
the requirements, limitations and restrictions set forth in this subsection, and the standard of care set forth in section eleven of
this article, but are not subject to any other limitations or
restrictions set forth elsewhere in this article or code.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to a new title to read as follows:
Eng. Senate Bill No. 438--A Bill to
amend and reenact §12-6-2,
§12-6-4, §12-6-9c, §12-6-12 and §12-6-14 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §12-6-18
,
all relating to
investment of moneys by the West Virginia Investment Management
Board; modifying the type and amount of bonds or insurance coverage
that may be obtained and maintained by the Investment Management
Board; authorizing the establishment and maintenance of a self-
insurance account in connection with the procurement and
maintenance of insurance coverage by the Investment Management
Board; modifying provisions relating to authority of the board to
make certain investments in investment companies or investment
trusts registered under the Investment Company Act of 1940;
modifying restrictions and limitations on permissible investments
by the West Virginia Investment Management Board; authorizing
investment in real estate investment funds and alternative
investment funds and establishing conditions and limitations on the
same; providing an exemption from disclosure under the Freedom of
Information Act with respect to information concerning which
disclosure is prohibited, restricted or limited by standard confidentiality agreements, policies or procedures of firms,
companies or organizations through which the West Virginia
Investment Management Board invests, to the extent of the
prohibitions, restrictions or limitations; requiring certain
additional information be part of the Investment Management Board's
annual report; providing authority for the Legislature to
commission or direct audits, reviews and studies as it considers
necessary; and specifying that the provisions of the article are to
be liberally construed to effect the public purposes of the
article.
Respectfully submitted,
Dan Foster, Chair, Brooks F. McCabe, Jr., Mike Hall, Conferees
on the part of the Senate.
Tim Manchin, Chair, Orphy Klempa, Ron Walters, Conferees on
the part of the House of Delegates.
Senator Foster, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Foster, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 438, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Boley--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 438) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 185, Creating Tobacco
Settlement Finance Authority.
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. 185 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That the Senate agree to the following House of Delegates
amendments:
On page six, section one-a, line twenty-one, by striking out
the word "fifty" and inserting in lieu thereof the word "forty-
five";
On page seventeen, section eight, line four, after the word
"chairperson," by inserting the words "the Treasurer of the State
of West Virginia";
On page seventeen, section eight, line four, by striking out
the word "four" and inserting in lieu thereof the word "three";
On page twenty-two, section eleven, lines fifty-eight through
sixty-one, by striking out all of subdivisions (13) and (14);
And renumbering the remaining subdivisions;
On page twenty-three, section eleven, line seventy-seven, by
striking out "(7)" and inserting in lieu thereof "(8)";
And,
On page twenty-six, section twelve, lines sixty-four through
sixty-six, by striking out all of subdivision (7) and inserting in
lieu thereof a new subdivision (7), to read as follows:
(7) A requirement that the cost of issuance excluding fees for
bond insurance, credit enhancements, liquidity facilities and
rating agency fees, 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 the
bonds issued.
And,
That the House of Delegates recede from its position as to the
following amendments:
On page twenty-four, section twelve, lines nine and ten, by
striking out the words "eight hundred" and inserting in lieu
thereof the words "seven hundred seventy-five";
And,
On page twenty-five, section twelve, line forty-seven, by
striking out the words "eight hundred" and inserting in lieu thereof the words "seven hundred seventy-five".
Respectfully submitted,
Walt Helmick, Chair, John Pat Fanning, Vic Sprouse, Conferees
on the part of the Senate.
Thomas W. Campbell, Chair, John Doyle, Everette W. Anderson,
Jr., Conferees on the part of the House of Delegates.
Senator Helmick, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Helmick, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 185, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--30.
The nays were: Minard, Sypolt and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 185) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Unger, Wells, White and Tomblin (Mr. President)--31.
The nays were: Minard, Sypolt and Yoder--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 185) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Bailey, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 454, Renaming and restructuring Bureau of
Employment Programs.
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 Senate
Bill No. 454 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 recede from its amendment on page
ten, section nine, after line sixty-seven, inserting a new
subsection (g);
That the Senate agree to all other House amendments to the
bill;
And,
That the House recede from its amendment to the title of the
bill.
Respectfully submitted,
Billy Wayne Bailey, Jr., Chair, Joseph M. Minard, John Yoder,
Conferees on the part of the Senate.
Randy Swartzmiller, Chair, Sam J. Argento, Patti Eagloski
Schoen, Conferees on the part of the House of Delegates.
Senator Bailey, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Bailey, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 454, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 454) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 454) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator McCabe, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 589, Allowing monetary incentives in
programs to improve public service.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Senate
Bill No. 589 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 of Delegates on page three, section
seven, and that the Senate and the House agree to an amendment as
follows:
On page three, section seven, line twenty-nine, after the word
"incentives," by striking out the remainder of the subdivision and
inserting in lieu thereof the following: which, notwithstanding
any provision of this code to the contrary, may include a one-time
monetary incentive for recruitment and retention of employees in
critically understaffed classifications. The director, in
consultation with the board, shall determine which classifications
are critically understaffed. The one-time monetary incentive
program shall continue until the thirtieth day of June, two
thousand nine. The director shall report annually on or before the
thirty-first day of December, commencing in the year two thousand
seven, to the Joint Committee on Government and Finance. The
annual report shall provide all relevant information on the one-
time monetary incentive program and the understaffed
classifications in state agencies.
Respectfully submitted,
Brooks F. McCabe, Jr., Chair, Evan H. Jenkins, Larry J.
Edgell, Clark S. Barnes, Donna J. Boley, Conferees on the part of
the Senate.
Corey L. Palumbo, Chair, K. Steven Kominar, Doug Stalnaker,
Allen V. Evans, Ruth Rowan, Conferees on the part of the House of
Delegates.
Senator McCabe, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator McCabe, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 589, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 589) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 589) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Com. Sub. for Senate Concurrent Resolution No. 25, Requesting
Division of Highways name bridge on U. S. Route 52 in Landgraff,
McDowell County, "Luke Simplicio Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 26, Requesting Division of
Highways name bridge on U. S. Route 60, St. Albans, Kanawha County,
"Earl Henry Curnutte Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 27, Requesting Division of
Highways name bridge on State Route 119, Mingo County, "Ida and
Isaac 'Ike' Newsome, Sr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 28, Designating December,
2007, as "West Virginia Legislature's Back to School Month".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 30, Requesting Division of
Highways name Harvey Street bridge in Williamson, Mingo County, "Pete Dillon Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 61, Authorizing issuance of
revenue bonds to fund capital improvements for state community and
technical colleges.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 177, Creating
Division of Energy.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5B-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §5B-2A-1, §5B-2A-3, §5B-2A-4, §5B-
2A-5 and §5B-2A-12 of said code be amended and reenacted; that said
code be amended by adding thereto a new article, designated §5B-2F-
1 and §5B-2F-2; that §5D-1-4 of said code be amended and reenacted;
that §5F-2-1 of said code be amended and reenacted; and that §22-
3A-7 of said code be amended and reenacted, all to read as follows:
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 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;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs Workforce West Virginia
provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article one, chapter five-h
of this code.
ARTICLE 2A. OFFICE OF COALFIELD COMMUNITY DEVELOPMENT.
§5B-2A-1. Legislative findings and declaration.
The Legislature hereby finds and declares the following:
(a) Coal mining has made and continues to make significant
contributions to the economy of West Virginia. These contributions
include the creation of quality jobs that pay high wages and
provide good benefits; the consequent stimulation and support of
mining contractors, suppliers of mining equipment and services,
other mining-related industries and numerous providers of goods and
services that are indirectly related to coal mining and dependent upon its existence and prosperity; the generation of significant
severance and other tax revenues that support important economic
development, infrastructure and education initiatives in mining
communities and throughout the state; the support of civic,
education and service groups in mining communities; and in the case
of surface mining operations, including mountaintop mining, the
creation of much-needed flat land for economic development and
recreational uses.
(b) The development and increasing prominence of surface
mining operations, including mountaintop mining, has brought
increasingly high levels of productivity, safety and efficiency to
the state's mining industry, enabling the recovery of coal that
could not otherwise be mined and marketed profitably, increasing
the severance tax revenues and other economic benefits described in
subsection (a) of this section and ensuring the competitiveness of
the state's coal industry from a national and international
perspective.
(c) Where implemented, surface mining operations, particularly
mountaintop mining, tend to extract most, if not all, of the
recoverable coal reserves in an accelerated fashion. For a state
long dependent on the employment and revenue coal mining provides,
this reality should be sobering and there is no place in which the
comprehension of this reality is more crucial than the coalfields
of West Virginia. Long dependent primarily on mining, this area
must plan for a future without coal. The state and its subdivisions
have a legitimate interest in securing that future.
(d) The coal industry and those related to the extraction of
mineral resources benefit from the mining of our state's coal
through mining practices which impact its citizens -- some in a
negative way -- and through practices which will extract
significant portions of coal reserves in an accelerated fashion.
Those industries must therefore accept a greater responsibility to
help address the long-term needs of the communities and citizens
impacted by their activities.
(e) Once it becomes public knowledge that a permit is being
sought, the marketability of property may change and the relative
bargaining power of the parties may change with it. The potential
for negative impact on those living in communities near surface
mining operations may limit the options and bargaining power of the
property owners.
(f) Surface mining operations, including mountaintop mining,
present unique challenges to the coal mining industry and the state
and its citizens, especially those living and working in
communities that rely heavily upon these methods of mining. This
requires that these communities, in conjunction with county
commissions, state, local, county and regional development
authorities, landowners and civic, community and business groups
and interested citizens, develop plans related to the communities'
long-term economic viability.
(g) The West Virginia Development Office Division of Energy,
as the state agency charged with economic energy policy and
development activities, shall take a more active role in the long-term economic development of communities in which these mining
methods are prevalent and shall establish a formal process to
assist property owners in the determination of the fair market
value where the property owner and the coal company voluntarily
enter into an agreement relating to the purchase and sale of such
property.
§5B-2A-3. Definitions.
(a) For the purpose of this article, the following terms have
the meanings ascribed to them:
(1) "Division" "Department" means the Division Department of
Environmental Protection established in article one, chapter
twenty-two of this code;
(2) "Office" means the Office of Coalfield Community
Development.
(3) "West Virginia Development Office" means the office
established in article two of this chapter.
(b) Unless used in a context that clearly requires a different
meaning or as otherwise defined herein, terms used in this article
shall have the definitions set forth in this section.
§5B-2A-4. Office of Coalfield Community Development.
(a) The Office of Coalfield Community Development is hereby
established within the West Virginia Development Office Division of
Energy.
(b) The executive director shall appoint a chief to administer
the office, who will serve at the will and pleasure of the
executive director of the West Virginia Development Office of the Division of Energy may appoint a chief to administer the office,
who will serve at the will and pleasure of the Director of the
Division of Energy.
§5B-2A-5. Powers and duties.
The office has and may exercise the following duties, powers
and responsibilities:
(1) To establish a procedure for developing a community impact
statement as provided in section six of this article and to
administer the procedure so established;
(2) To establish a procedure for determining the assets that
could be developed in and maintained by the community to foster its
long-term viability as provided in section eight of this article
and to administer the procedure so established;
(3) To establish a procedure for determining the land and
infrastructure needs in the general area of the surface mining
operations as provided in section nine of this article and to
administer the procedure so established;
(4) To establish a procedure to develop action reports and
annual updates as provided in section ten of this article and to
administer the procedure so established;
(5) To determine the need for meetings to be held among the
various interested parties in the communities impacted by surface
mining operations and, when appropriate, to facilitate the
meetings;
(6) To establish a procedure to assist property owners in the
sale of their property as provided in section eleven of this article and to administer the procedure so established;
(7) In conjunction with the division department, to maintain
and operate a system to receive and address questions, concerns and
complaints relating to surface mining; and
(8) On its own initiative or at the request of a community in
close proximity to a mining operation, or a mining operation, offer
assistance to facilitate the development of economic or community
assets. Such assistance may include the preparation of a master
land use plan pursuant to the provisions of section nine of this
article.
§5B-2A-12. Rulemaking.
(a) The office shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
to establish, implement and enforce the provisions of this article,
which rules shall include, but not be limited to:
(1) The development of standards for establishing the value of
property by the office; and
(2) Criteria for the development of a master plan by local,
county, regional or redevelopment authorities which coordinates the
permitting and reclamation requirements of the division Department
of Environmental Protection with these authorities.
(b) The office is authorized to promulgate emergency rules,
prior to the first day of July, two thousand two, to incorporate
the revisions to this article enacted during the two thousand two
regular legislative session.
ARTICLE 2F. DIVISION OF ENERGY.
§5B-2F-1. Short title.
This chapter shall be known and cited as the West Virginia
Energy Policy and Development Act.
§5B-2F-2. Purpose; office of director for energy development;
director to be member of Public Energy Authority;
division to develop energy policy and development
plan; contents of energy policy and development plan;
and division to promote energy initiatives.
(a) Effective the first day of July, two thousand seven, the
Division of Energy is created as a state agency under the
Department of Commerce. The division may receive federal funds.
The division shall be administered by a director, who shall be
appointed by the Governor, by and with the advice and consent of
the Senate, and shall continue to serve until his or her successor
is appointed and qualified as provided. The director shall be
selected with special preference and consideration given to his or
her training, experience, capacity and interest in energy policy
and development activities.
(b) Creation of the division is intended to provide leadership
for developing energy policies emphasizing the increased efficiency
of energy use, the increased development and production of new and
existing domestic energy sources, the increased awareness of energy
use on the environment and the economy, dependable, efficient and
economical statewide energy systems capable of supporting the needs
of the state, increased energy self-sufficiency where the ratio of
indigenous to imported energy use is increased, reduce the ratio energy consumption to economic activity and maintain low-cost
energy. The energy policies and development plans shall also
provide direction for the private sector.
(c) The director shall administer the daily operations of the
Public Energy Authority provided under the provisions of chapter
five-d of this code. The director shall also have authority over
the Office of Coalfield Community Development, created by the
provisions of article two-a, chapter five-b of this code, and the
energy efficiency program existing under the West Virginia
Development Office which are hereby transferred to the division.
The director shall effectuate coordination of these entities
relative to the purposes provided in this article.
(d) The division shall develop an energy policy and shall
report the same back to the Governor and the Joint Committee on
Government and Finance before the first day of December, two
thousand seven. The energy policy shall be a five-year plan
setting forth the state's energy policies and shall provide a
direction for the private sector. Prior to the expiration of the
energy policy, the division shall begin review of the policy and
submit a revised energy policy to the Governor and the Joint
Committee on Government and Finance six months before the
expiration of the policy.
(e) The director shall be a member of the Public Energy
Authority and as such shall attend and participate in all official
meetings and public hearing conducted under the auspices of the
authority.
(f) The division shall prepare and submit an annual energy
development plan to the Governor and the Joint Committee on
Government and Finance on or before the first day of December of
each year. The development plan shall relate to the division's
implementation of the energy policy and the activities of the
division during the previous year. The development plan shall
include any recommended legislation. The Public Energy Authority,
the Office of Coalfield Community Development, the energy
efficiency program, the Department of Environmental Protection and
the Public Service Commission, in addition to their other duties
prescribed by this code, shall assist the division and the director
in the development of an energy policy and related development
plans. The energy development plan shall set forth the plans for
implementing the state's energy policy and shall provide a
direction for the private sector. The energy development plan
shall recognize the powers of the Public Energy Authority as to
development and financing of projects under its jurisdiction and
shall make such recommendations as are reasonable and practicable
for the exercise of such powers.
(g) The division shall hold public hearings and meetings with
notice to receive public input regarding proposed energy policies
and development plans. The energy policy and development plans
required by subsections (d) and (f) of this section shall address
increased efficiency of energy use, traditional and alternative
energy, water as a resource and a component of energy production,
energy distribution systems, the siting of energy facilities, the increased development and production of new and existing domestic
energy sources, increased awareness of energy use on the
environment and the economy, energy infrastructure, the development
and implementation of renewable, clean, technically innovative and
advanced energy projects in this state. Projects may include,
without limitation, solar and wind energy, low-impact hydro power,
geothermal, biomass, landfill gas, fuel cells, renewable hydrogen
fuel technologies, waste coal, coal mine methane, coal gasification
to ultraclean fuels, solid waste to fuel grade ethanol and coal
liquefaction technologies.
(h) The division may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code designed to implement an energy policy and
development plan in accordance with the provisions of this chapter.
(i) The energy policy and development plans required by
subsections (d) and (f) of this section shall identify and report
on the energy infrastructure in this state and include, without
limitation, energy infrastructure related to protecting the state's
essential data, information systems and critical government
services in times of emergency, inoperativeness or disaster. In
consultation with the Director of the Division of Homeland Security
and Emergency Management, the director of the division shall
encourage the development of energy infrastructure and strategic
resources that will ensure the continuity of governmental
operations in situations of emergency, inoperativeness or disaster.
(j) In preparing or revising the energy policy and development plan, the division may rely upon internal staff reports or the
advice of outside advisors or consultants and may procure such
services with the consent of the Secretary of Commerce. The
division may also involve national, state and local government
leadership and energy experts.
(k) The division shall prepare an energy use database,
including, without limitation, end-use applications and
infrastructure needs for different classes of energy users
including residential, commercial and industrial users, data
regarding the interdependencies and sources of electricity, oil,
coal, water and gas infrastructure, data regarding energy use of
schools and state-owned facilities and collect data on the impact
of the energy policy and development plan on the decisions and
strategies of energy users of the state.
(l) The division shall promote collaboration between the
state's universities and colleges, private industry and nonprofit
organizations to encourage energy research and leverage available
federal energy research and development resources.
(m) The division shall promote initiatives to enhance the
nation's energy security through research and development directed
at transforming the state's energy resources into the resources
that fuel the nation.
(n) The Performance Evaluation and Research Division of the
Legislative Auditor's office shall perform an agency review of the
Division of Energy in two thousand ten as part of its review of the
Department of Commerce as set forth in article four, chapter ten of this code.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-4. West Virginia Public Energy Authority continued; West
Virginia Public Energy Board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
authority; appointment.
(a) The West Virginia Public Energy Authority is continued.
The authority is a governmental instrumentality of the state and a
body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and
duties are essential governmental functions and for a public
purpose.
(b) The authority is shall be controlled, managed and operated
by a seven-member board known as the West Virginia Public Energy
Authority Board, which is continued. The seven members include the
governor Director of the Division of Energy or designee; the
Secretary of the Department of Environmental Protection or
designee; the Director of the Economic Development Authority or
designee; and four members representing the general public. The
public members are appointed by the Governor, by and with the
advice and consent of the Senate, for terms of one, two, three and
four years, respectively.
(c) On the thirty-first thirtieth day of March June, two
thousand five seven, the terms of all appointed members appointed prior to the amendment of this section during the first
extraordinary regular session of the seventy-seventh Legislature
shall expire. Not later than the thirty-first first day of March
July, two thousand five seven, the Governor appoints shall appoint
the public members required in subsection (b) of this section to
assume the duties of the office immediately, pending the advice and
consent of the Senate.
(d) The successor of each appointed member is appointed for a
four-year term. A vacancy is filled by appointment by the Governor
in the same manner as the original appointment. A member appointed
to fill a vacancy serves for the remainder of the unexpired term.
Each board member serves until a successor is appointed.
(e) No more than three of the public members may at any one
time belong to the same political party. No more than two public
members may be employed by or associated with any industry the
authority is empowered to affect. One member shall be a person
with significant experience in the advocacy of environmental
protection. Board members may be reappointed to serve additional
terms.
(f) All members of the board shall be citizens of the state.
Before engaging in their duties, each member of the board shall
comply with the requirements of article one, chapter six of this
code and give bond in the sum of twenty-five thousand dollars in
the manner provided in article two of said chapter. The Governor
may remove any board member for cause as provided in section four,
article six of said chapter.
(g) The governor Director of the Division of Energy shall
serve as chair. The board annually elects one of its public members
as vice chair and appoints a secretary-treasurer who need not be a
member of the board.
(h) Four members of the board constitute a quorum and the
affirmative vote of the majority of members present at any meeting
is necessary for any action taken by vote of the board. A vacancy
in the membership of the board does not impair the rights of a
quorum by such vote to exercise all the rights and perform all the
duties of the board and the authority.
(i) The person appointed as secretary-treasurer, including a
board member if so appointed, shall give bond in the sum of fifty
thousand dollars in the manner provided in article two, chapter six
of this code.
(j) Each public member receives 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 shall be reimbursed for reasonable expenses
incurred in the discharge of official duties. All expenses
incurred by the board shall be paid in a manner consistent with
guidelines of the Travel Management Office of the Department of
Administration and are payable solely from funds of the authority
or from funds appropriated to the authority for such purpose by the
Legislature. Liability or obligation is not incurred by the
authority beyond the extent to which moneys are available from funds of the authority or from such appropriations.
(k) The governor may appoint an executive director, with the
advice and consent of the Senate, who serves at the governor's will
and pleasure. The director In addition to such other duties and
responsibilities as may be prescribed in this code, the Director of
the Division of Energy 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.
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 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 West Virginia Public Employees
Grievance Board provided for in article twenty-nine, chapter
eighteen of this code and article six-a, chapter twenty-nine three,
chapter six-c 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; and
(12) Real Estate Division provided in article ten, chapter
five-a 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 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;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs Workforce West Virginia
provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code.
(c) The Economic Development Authority provided 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) Workers' Compensation Commission provided in article one,
chapter twenty-three of this code is continued as an independent
agency within the executive branch.
(f) (e) 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.
(g) (f) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are 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.
(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 incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two, chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight 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 incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided in chapter twenty-five of
this code;
(8) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided in article twelve,
chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a 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 incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three,
chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine 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 incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(l) (k) 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 position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(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, 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. All boards that are appellate bodies or are independent
decisionmakers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(n) (m) Any department previously transferred to and
incorporated in a department by prior enactment of this section 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.
(o) (n) 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.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3A. OFFICE OF EXPLOSIVES AND BLASTING.
§22-3A-7. Funding.
(a) The office shall assess each operator permitted under the
provisions of this chapter a fee on each quantity of explosive
material used for any purpose on the surface mining operations.
(b) The office shall propose a legislative rule for
promulgation in accordance with article three, chapter twenty-nine-
a of this code, establishing the fees required by this section. The
fees shall be calculated to generate sufficient money to provide for the operation of this office and the office of coalfield
community development Division of Energy as provided for in article
two-a two-f, chapter five-b of this code.
These fees cannot be
increased except by legislative rule and cannot be used to fund
additional positions in the Division of Energy in future years.
(c) The office shall deposit all moneys received from these
fees into a special revenue fund to be known as the Mountaintop
Removal Fund in the State Treasury to be expended by the offices
and the Division of Energy in the performance of their duties. The
expenditure of moneys in the fund is not authorized from
collections, but shall be appropriated by the Legislature.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 177--
A Bill
to amend and reenact §5B-1-2 of the Code of West Virginia, 1931, as
amended; to amend and reenact §5B-2A-1, §5B-2A-3, §5B-2A-4, §5B-2A-
5 and §5B-2A-12 of said code; to amend said code by adding thereto
a new article, designated §5B-2F-1 and §5B-2F-2; to amend and
reenact §5D-1-4 of said code; to amend and reenact §5F-2-1 of said
code; and to amend and reenact §22-3A-7 of said code, all relating
to the creation of the Division of Energy within the Department of
Commerce; charging the Division of Energy to develop energy
policies; placing the Office of Coalfield Community Development
within the Division of Energy; creating the position of Director of
the Division of Energy; continuing and reconstituting the West Virginia Public Energy Authority; charging Director of the Division
of Energy to chair and administer the functions of the Public
Energy Authority; providing the director acts under the authority
of the Secretary of Commerce; providing the director has authority
over the Office of Coalfield Community Development and the Energy
Efficiency Program of the West Virginia Development Office;
providing the Public Energy Authority, the Office of Coalfield
Community Development, director and other public agencies develop
an energy policy and development plan and seek public input
thereof; requiring submission of an energy policy and development
plan to the Governor and Joint Committee on Government and Finance;
setting forth matters to be addressed in the energy policy and
development plan; providing that the division shall prepare an
energy use database; providing that the division shall promote
initiatives to enhance the nation's energy security; providing that
the division shall encourage the development of energy
infrastructure and strategic resources that will ensure the
continuity of governmental operations in situations of emergency,
inoperativeness or disaster; providing funding for the Division of
Energy; and establishing a performance audit to be performed during
the Department of Commerce's review.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 177, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Sprouse--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 177) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 425, Relating to Water
Pollution Control Revolving Fund loans.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, after the enacting section, by inserting the
following:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-2. Definitions.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by
the owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative
expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a community enhancement board created
pursuant to this article.
(d) "Code" means the Code of West Virginia, one thousand nine
hundred thirty-one, as amended.
(e) "Community enhancement district" or "district" means a
community enhancement district created pursuant to this article.
(f) "Cost" means the cost of:
(1) Construction, reconstruction, renovation and acquisition
of all lands, structures, real or personal property, rights,
rights-of-way, franchises, easements and interests acquired or to
be acquired by the district;
(2) All machinery and equipment, including machinery and
equipment needed to expand or enhance county or city services to the district;
(3) Financing charges and interest prior to and during
construction and, if deemed advisable by the district or governing
body, for a limited period after completion of the construction;
(4) Interest and reserves for principal and interest,
including costs of municipal bond insurance and any other type of
financial guaranty;
(5) Costs of issuance in connection with the issuance of
assessment bonds;
(6) The design of extensions, enlargements, additions and
improvements to the facilities of any district;
(7) Architectural, engineering, financial and legal services;
(8) Plans, specifications, studies, surveys and estimates of
costs and revenues;
(9) Administrative expenses necessary or incident to
determining to proceed with any project; and
(10) Other expenses as may be necessary or incident to the
construction, acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.
(h) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors, as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) "Governmental agency" means the state government or any agency, department, division or unit thereof; counties;
municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension,
enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water source of supply,
treatment, transmission and distribution facilities, sewage
treatment, collection and transmission facilities, stormwater
systems, police stations, fire stations, libraries, museums,
schools, other public buildings, hospitals, piers, docks,
terminals, drainage systems, culverts, streets, roads, bridges
(including approaches, causeways, viaducts, underpasses and
connecting roadways), motor vehicle parking facilities (including
parking lots, buildings, ramps, curb-line parking, meters and other
facilities deemed necessary, appropriate, useful, convenient or
incidental to the regulation, control and parking of motor
vehicles), public transportation, public recreation centers, public
recreation parks, swimming pools, tennis courts, golf courses, equine facilities, motor vehicle competition and recreational
facilities, flood protection or relief projects, or the grading,
regrading, paving, repaving, surfacing, resurfacing, curbing,
recurbing, widening, lighting or otherwise improving any street,
avenue, road, highway, alley or way, or the building or renewing of
sidewalks and flood protection; and the terms shall mean and
include any project as a whole, and all integral parts thereof,
including all necessary, appropriate, useful, convenient or
incidental appurtenances and equipment in connection with any one
or more of the above.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or
otherwise in a manner sufficient to describe the area, may petition
a governing body to create or expand a community enhancement
district.
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the
following:
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real
property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed improvements;
(4) A list of estimated project costs and the preliminary
plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and
the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district, if any, that said utility or
utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities
;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district; and
(C) If built in conformance with said plans and
specifications, will accept the improvements following their
completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as set
forth in subdivision (9) of this subsection that will be
transferred to another governmental agency, written evidence that
such agency will accept such transfer, unless such projects are to
be owned by the district;
(11) The benefits that can be expected from the creation of
the district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an
amount as to pay for the costs of the project and granting a lien
for said amount upon said property enforceable in accordance with
the provision of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district
and construction of the project is necessary and economically
feasible, it shall set a date for the public meeting required under
section five of this article and shall cause the petition to be filed with the clerk of the county commission or the clerk or
recorder of the municipality, as the case may be, and be made
available for inspection by interested persons before the meeting.
(d) Notwithstanding any other provision of this article to the
contrary, nothing in this article shall modify:
(1) The jurisdiction of the Public Service Commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating
to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in
the state; or
(2) The authority of the Infrastructure and Jobs Development
Council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-6. Creation of community enhancement district; community
enhancement district to be a public corporation and
political subdivision; powers thereof; community
enhancement boards.
(a) Each community enhancement district shall be created by
adoption or enactment of an order or ordinance.
(b) From and after the date of the adoption or enactment of
the order or ordinance creating a community enhancement district,
it shall thereafter be a public corporation and political
subdivision of this state, but without any power to levy or collect
ad valorem taxes. Each community enhancement district is hereby empowered and authorized, in addition to any other rights, powers
and authorities conferred upon it in this article or elsewhere in
this code, to:
(1) Acquire, own and hold, in its corporate name, by purchase,
lease, right of eminent domain, gift or otherwise, such property,
both real and personal and other interests in real estate, or any
other property, whether tangible or intangible, as may be necessary
or incident to the planning, financing, development, construction,
acquisition, extension, improvement and completion of a project;
(2) Design, plan, finance, develop, construct, acquire,
extend, improve and complete one or more projects and assess the
cost of all or any portion of a project on real property located
within the community enhancement district;
(3) Sue or be sued;
(4) Establish a bank account or accounts in its name;
(5) Enter into agreements or other transactions with any
person or governmental agency necessary or incident to the
development, planning, construction, acquisition or improvement of
a project or for the operation, maintenance or disposition of a
project or for any other services required by a project;
(6) Annually, on or before the seventh day of June, certify to
the sheriff of the county in which the property is located the
assessments granted against all property in the district for
inclusion in the tax ticket;
(7) Expend funds to acquire, or construct part of a project on
property located outside of a community enhancement district, and for any work undertaken thereon, as may be necessary or incident to
the completion of a project;
(8) Enter into agreements with one or more counties,
municipalities, public service districts or community enhancement
districts to plan, develop, construct, acquire or improve a project
jointly;
(9) Accept appropriations, gifts, grants, bequests and devises
and use or dispose of the same to carry out its corporate purpose;
(10) Make and execute contracts, releases, assignments,
compromises and other instruments necessary or convenient for the
exercise of its powers, or to carry out its corporate purpose;
(11) Have a seal and alter the same;
(12) Raise funds by the issuance and sale of assessment bonds;
(13) Obtain options to acquire real property, or any interest
therein, by purchase, lease or otherwise, which is found by the
board to be suitable as a site, or part of a site, for the
construction of a project;
(14) Pledge funds generated by assessments in a district or
proceeds from the sale of assessment bonds to payment of debt
service on tax increment financing obligations issued under article
eleven-b, chapter seven of this code, for the period of time
determined by the community enhancement board; and
(15) Take any and all other actions consistent with the
purpose of this article and not in violation of the Constitution of
this state as may be necessary or incident to the construction and
completion of a project.
(c) Notwithstanding the powers granted to community
enhancement districts in subsection (b) of this section or as
otherwise provided in this code, no community enhancement district
may expend funds to assist any utility to upgrade, improve, modify,
repair or replace the utility's existing storage, treatment or
source of supply facilities, whether such existing facilities are
located within or outside of the district.
(d) (c) The powers of each community enhancement district
shall be vested in and exercised by a community enhancement board
which shall be composed of five members, four of whom shall be
appointed by the governing body of the county or municipality in
which the community enhancement district is located and one of whom
shall be the sheriff or his or her designee of the county or the
treasurer or his or her designee of the municipality (or such other
person serving in an equivalent capacity if there is no treasurer),
as the case may be, in which the community enhancement district is
located. At least three members of the board shall be residents of
the assessment district: Provided, That should less than three
persons reside within the boundaries of the community enhancement
district, then at least three members of the board shall be
residents of the county or municipality, as the case may be:
Provided, however, That if no persons reside within the boundaries
of the community enhancement district then at least three members
must be approved by the owner or owners of the land. No more than
three initial members of the board may be from the same political
party.
(e) (d) The four members appointed by the governing body shall
be appointed for overlapping terms of four years each and
thereafter until their respective successors have been appointed
and have qualified. For the purpose of initial appointments, one
member shall be appointed for a term of four years; one member
shall be appointed for a term of three years; one member shall be
appointed for a term of two years; and one member shall be
appointed for a term of one year. Members may be reappointed for
any number of terms. Before entering upon the performance of his or
her duties, each member shall take and subscribe to the oath
required by section five, article IV of the Constitution of this
state. Vacancies shall be filled by appointment by the governing
body of the county or municipality creating the assessment district
for the unexpired term of the member whose office shall be vacant
and such appointment shall be made within thirty days of the
occurrence of such vacancy. Any such member may be removed by the
governing body which appointed such member in case of incompetency,
neglect of duty, gross immorality or malfeasance in office. Members
shall be entitled to no more than fifty dollars per meeting and
reasonable expenses associated with their services.
(f) (e) The board shall organize within thirty days following
the first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of its
members to serve as chairman, one to serve as treasurer and one to
serve as secretary. The secretary, or his or her designee, shall
keep a record of all proceedings of the board which shall be available for inspection as other public records, and the treasurer
or his or her designee shall maintain records of all financial
matters relating to the community enhancement district, which shall
also be available for inspection as other public records. Duplicate
records shall be filed with the clerk or recorder, as the case may
be, of the county or municipality which created the community
enhancement district and shall include the minutes of all board
meetings. The secretary and treasurer shall perform such other
duties pertaining to the affairs of the community enhancement
district as shall be prescribed by the board.
(g) (f) The members of the board, and the chairman, secretary
and treasurer thereof, shall make available to the governing body
responsible for appointing the board, at all times, all of its
books and records pertaining to the community enhancement
district's operation, finances and affairs for inspection and
audit. The board shall meet at least semiannually.
(h) (g) A majority of the members of the board constitutes a
quorum and meetings shall be held at the call of the chairman.
(i) (h) Staff, office facilities and costs of operation of the
board may be provided by the county or municipality which created
the community enhancement district or by contract and said costs of
operations shall be funded from assessments collected within the
district.
(j) (i) The chairman shall preside at all meetings of the
board and shall vote as any other members of the board, but if he
or she should be absent from any meeting the remaining members may select a temporary chairman, and if the member selected as chairman
resigns as such or ceases for any reason to be a member of the
board, the board shall select one of its members as chairman to
serve until the next annual organizational meeting.
(k) (j) The board shall, by resolution, determine its own
rules of procedure, fix the time and place of its meetings and the
manner in which special meetings may be called. The members of the
board shall not be personally liable or responsible for any
obligations of the assessment district or the board but are
answerable only for willful misconduct in the performance of their
duties.
(l) (k) The official name of a community enhancement district
created under the provisions of this article may contain the name
of the county or municipality, as the case may be, in which it is
located.
(m) (l) Notwithstanding any provision in this code to the
contrary, the power and authority hereby conferred on community
enhancement districts may extend within the territory of a public
service district created under section two, article thirteen-a of
this chapter.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §16-13E-2, §16-13E-4 and §16-13E-6 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that §22C-2-1 and §22C-2-5 of said code be amended and reenacted, all to
read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 425--A Bill to
amend and
reenact §16-13E-2, §16-13E-4 and §16-13E-6 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §22C-2-1 and
§22C-2-5 of said code, all relating to enhancement of existing
public infrastructure funding sources; adding water treatment and
waste water treatment as authorized projects in community
enhancement districts; expanding the definition of "local entity"
for purposes of eligibility for funding from the Water Pollution
Control Revolving Fund; and authorizing the Water Development
Authority to take security or other interest in certain property to
secure loans made from the fund.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 425, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 425) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Senate Bill No. 505, Relating to State Police Death,
Disability and Retirement Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page fifteen, section twenty-seven, line seven, before the
word "The" by inserting "(a)";
And,
On page thirty, section twenty-nine, line eighty-two, by
striking out the word "of".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 505, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 505) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 595, Revising workers'
compensation statutes.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' Compensation Commission created; findings.
(a) The Legislature finds that a deficit exists in the
Workers' Compensation Fund of such critical proportions that it
constitutes an imminent threat to the immediate and long-term
solvency of the fund and constitutes a substantial deterrent to the
economic development of this state. The Legislature further finds
that addressing the workers' compensation crisis requires the
efforts of all persons and entities involved and resolution of the
crisis is in the best interest of the public. Modification to the
rate system, alteration of the benefit structure, improvement of
current management practices and changes in perception must be
merged into a unified effort to make the workers' compensation
system viable and solvent through the mutualization of the system
and the opening of the market to private workers' compensation
insurance carriers. It was and remains the intent of the
Legislature that the amendments to this chapter enacted in the year
two thousand three be applied from the date upon which the
enactment was made effective by the Legislature. The Legislature
finds that an emergency exists as a result of the combined effect
of this deficit, other state budgetary deficits and liabilities and
other grave social and economic circumstances currently confronting
the state and that unless the changes provided by the enactment of
the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the
fiscal stability of this state will suffer irreparable harm.
Accordingly, the Legislature finds that the need of the citizens of
this state for the protection of the State Treasury and the
solvency of the workers' compensation funds requires the
limitations on any expectations that may have arisen from prior
enactments of this chapter.
(b) It is the further intent of the Legislature that this
chapter be interpreted so as to assure the quick and efficient
delivery of indemnity and medical benefits to injured workers at a
reasonable cost to the employers who are subject to the provisions
of this chapter. It is the specific intent of the Legislature that
workers' compensation cases shall be decided on their merits and
that a rule of "liberal construction" based on any "remedial" basis
of workers' compensation legislation shall not affect the weighing
of evidence in resolving such cases. The workers' compensation
system in this state is based on a mutual renunciation of common
law rights and defenses by employers and employees alike.
Employees' rights to sue for damages over and above medical and
health care benefits and wage loss benefits are to a certain degree
limited by the provisions of this chapter and employers' rights to
raise common law defenses such as lack of negligence, contributory
negligence on the part of the employee, and others, are curtailed
as well. Accordingly, the Legislature hereby declares that any
remedial component of the workers' compensation laws is not to
cause the workers' compensation laws to receive liberal construction that alters in any way the proper weighing of evidence
as required by section one-g, article four of this chapter.
(c) The "Workers' Compensation Division of the Bureau of
Employment Programs" is, on or after the first day of October, two
thousand three, reestablished, reconstituted and continued as the
Workers' Compensation Commission, an agency of the state. The
purpose of the commission is to ensure the fair, efficient and
financially stable administration of the workers' compensation
system of the State of West Virginia. The powers and duties
heretofore imposed upon the Workers' Compensation Division and the
Commissioner of the Bureau of Employment Programs as they relate to
workers' compensation are hereby transferred to and imposed upon
the Workers' Compensation Commission and its executive director in
the manner prescribed by this chapter.
(d) It is the intent of the Legislature that the transfer of
the administration of the workers' compensation system of this
state from the Workers' Compensation Division under the
Commissioner of the Bureau of Employment Programs to the Workers'
Compensation Commission under its executive director and the
Workers' Compensation Board of Managers is to become effective the
first day of October, two thousand three. Any provisions of the
enactment of Enrolled Senate Bill No. 2013 in the year two thousand
three relating to the transfer of the administration of the
workers' compensation system of this state that conflict with the
intent of the Legislature as described in this subsection shall, to
that extent, become operative on the first day of October, two thousand three, and until that date, prior enactments of this code
in effect on the effective date of Enrolled Senate Bill No. 2013
relating to the administration of the workers' compensation system
of this state, whether amended and reenacted or repealed by the
passage of Enrolled Senate Bill No. 2013, have full force and
effect. All provisions of the enactment of Enrolled Senate Bill
No. 2013 in the year two thousand three relating to matters other
than the transfer of the administration of the workers'
compensation system of this state shall become operative on the
effective date of that enactment, unless otherwise specifically
provided in that enactment.
(e) It is the intent of the Legislature, expressed through its
enactment of legislation, to transfer the regulation of the
workers' compensation system to the Insurance Commissioner. By
proclamation of the Governor, as authorized by article two-c of
this chapter, the Workers' Compensation Commission was terminated
on the thirty-first day of December, two thousand five. To further
the transition from the state-operated workers' compensation system
to a system of private insurance, the duties and responsibilities
of the Workers' Compensation Commission and the board of managers,
including, but not limited to, ratemaking and adjudication of
claims, now reside with the Insurance Commissioner.
§23-1-1f. Authority of Insurance Commissioner to exempt employees
from classified service; exemption from purchasing
rules.
Notwithstanding any other provision of this code, upon termination of the commission, the Insurance Commissioner may:
(1) Exempt no more than twenty positions of the offices of the
Insurance Commissioner from the classified service of the state,
the employees of which positions shall serve at the will and
pleasure of the commissioner: Provided, That such exempt positions
shall be in addition to those positions in classified-exempt
service under the classification plan adopted by the Division of
Personnel. The Insurance Commissioner shall report all exemptions
made under this section to the Director of the Division of
Personnel no later than the first day of July, two thousand seven,
and thereafter as the commissioner determines to be necessary; and
(2) Expend such sums for professional services as he or she
determines are necessary to perform those duties transferred to the
Insurance Commissioner upon the termination of the commission. The
provisions of article three, chapter five-a of this code relating
to the Purchasing Division of the Department of Administration
shall not apply to these contracts, and the Insurance Commissioner
shall award the contract or contracts on a competitive basis.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-9. Election of employer or employers' group to be
self-insured and to provide own system of
compensation; exceptions; self-administration; rules;
penalties; regulation of self-insurers.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers or employers' groups may apply for permission to self-insure their workers' compensation
risk. including their risk of catastrophic injuries.
(1) The types of employers are:
(A) Any employer who is of sufficient capability and financial
responsibility to ensure the payment to injured employees and the
dependents of fatally injured employees of benefits provided for in
this chapter at least equal in value to the compensation provided
for in this chapter;
(B) Any employer or group of employers as provided for
subdivision (C) in paragraph (A) of this subdivision of such
capability and financial responsibility who that maintains its own
benefit fund or system of compensation to which its employees are
not required or permitted to contribute and whose benefits are at
least equal in value to those provided for in this chapter; or
(C) Any employer who is signatory to a collective bargaining
agreement that allows for participation in a group workers'
compensation insurance program may join with any other employer or
employers that are signatory to a collective bargaining agreement
or agreements that allow for participation in a group workers'
compensation program and jointly apply to the commission Insurance
Commissioner to collectively self-insure their obligations under
this chapter. The employers must collectively meet the conditions
set forth in paragraph (A) or (B) of this subdivision. There shall
be joint and several liability for all employers who choose to
jointly self-insure under the provisions of this article.
(2) In order to be approved for self-insurance status, the employer shall:
(A) Have an effective health and safety program at its
workplaces; and Submit all information requested by the Insurance
Commissioner;
(B) Provide security or bond, in an amount and form determined
by the executive director with the approval of the board of
managers Insurance Commissioner, which shall balance the employer's
financial condition based upon an analysis of its audited financial
statements and the full accrued value of current liability for
future claim payments based upon generally accepted actuarial and
accounting principles of the employer's existing and expected
liability;
(3) Any employer whose record upon the books of the commission
shows a liability, as determined on an accrued basis against the
workers' compensation fund incurred on account of injury to or
death of any of the employer's employees, in excess of premiums
paid by the employer, shall not be granted the right, individually
and directly or from the benefit funds or system of compensation,
to be self-insured until the employer has paid into the workers'
compensation fund the amount of the excess of liability over
premiums paid, including the employer's proper proportion of the
liability incurred on account of catastrophes or second injuries as
defined in section one, article three of this chapter and charged
against such fund.
(C) Meet the financial responsibility requirements set forth
in rules promulgated by the board of managers or industrial council;
(D) Obtain and maintain a policy of excess insurance if
required to do so by the Insurance Commissioner; and
(E) Have an effective health and safety program at its
workplaces.
(4) (3) Upon a finding that the employer has met all of the
requirements of this section and any rules promulgated thereunder,
the employer may be permitted self-insurance status. An annual
review of each self-insurer's continuing ability to meet its
obligations and the requirements of this section shall be made by
the workers' compensation commission Insurance Commissioner. At
the time of such review, the Insurance Commissioner may require
that the self-insured employer post a bond or security or obtain
and maintain an excess insurance policy. This review shall also
include a redetermination recalculation of the amount of any
security, or bond, which shall be provided by the employer or
policy of excess insurance previously required to be posted or
obtained under any provision of this chapter or any rules
promulgated thereunder. Failure to provide any new the required
amount or form of security or bond or to obtain or maintain the
required excess insurance policy may cause the employer's
self-insurance status to be terminated by the workers' compensation
commission. The security or bond provided by employers prior to
the second day of February, one thousand nine hundred ninety-five,
shall continue in full force and effect until the performance of
the employer's annual review and the entry of any appropriate decision on the amount or form of the employer's security or bond
Insurance Commissioner.
(5) (4) Whenever a self-insured employer furnishes security or
bond, including replacement and amended bonds and other securities,
as surety to ensure the employer's or guarantor's payment of all
obligations under this chapter for which the security or bond was
furnished, the security or bond shall be in the most current form
or forms approved and authorized by the commission or Insurance
Commissioner for use by the employer or its guarantors, surety
companies, banks, financial institutions or others in its behalf
for that purpose.
(b) (1) Notwithstanding any provision in this chapter to the
contrary, self-insured employers shall, effective the first day of
July, two thousand four, administer their own claims. The
executive director Insurance Commissioner shall, pursuant to rules
promulgated by the board of managers or industrial council,
regulate the administration of claims by employers granted
permission to self-insure their obligations under this chapter.
Such rules shall be promulgated at least thirty days prior to the
first day of July, two thousand four. A self-insured employer
shall comply with rules promulgated by the board of managers or
industrial council governing the self-administration of its claims.
(2) An employer or employers' group who that self-insures its
risk and self-administers its claims shall exercise all authority
and responsibility granted to the commission Insurance Commissioner
or private carriers in this chapter and provide notices of action taken to effect the purposes of this chapter to provide benefits to
persons who have suffered injuries or diseases covered by this
chapter. An employer or employers' group granted permission to
self-insure and self-administer its obligations under this chapter
shall at all times be bound and shall comply fully with all of the
provisions of this chapter. Furthermore, all of the provisions
contained in article four of this chapter pertaining to disability
and death benefits are binding on and shall be strictly adhered to
by the self-insured employer in its administration of claims
presented by employees of the self-insured employer. Violations of
the provisions of this chapter and such rules relating to this
chapter as may be approved by the board of managers or industrial
council may constitute sufficient grounds for the termination of
the authority for any employer to self-insure its obligations under
this chapter. Claim notices currently generated by the commission
on behalf of self-insured employers must be generated and sent by
the self-insured employer or its third-party administrator.
(c) Each self-insured employer shall, on or before the last
day of the first month of each quarter or other assigned reporting
period, file with the commission Insurance Commissioner a certified
statement of the total gross wages and earnings of all of the
employer's employees subject to this chapter for the preceding
quarter or other assigned reporting period. Each self-insured
employer shall pay into the workers' compensation fund as portions
of its self-insured employer premium tax:
(1) A sum sufficient to pay the employer's proper portion of the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in the
payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of the
expenses of the disabled workers' relief fund;
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter or other assigned reporting
period's payment of each of the foregoing three sums;
(5) A sum as determined by the commission to be sufficient to
pay the employer's portion of rates, surcharges or deficit
management and deficit reduction assessments; and
(6) A sum as determined by the commission to pay the
employer's portion of self-insured catastrophic injury benefits,
and second injury payments on all self-insured second injury claims
other than second injury claims for those employers self-insured
for second injury. Any employer previously self-insured for second
injury benefits shall continue to be responsible for payment of
those benefits.
(d) The required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided for
by this chapter including second injury benefits and catastrophic
injury benefits, if applicable, shall constitute the remaining
portion of the self-insurer's premium tax.
(e) Notwithstanding any provision of subsection (d) of this
section to the contrary, except for those increases made effective for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code taken prior to the
effective date of the amendment and reenactment of this section,
the portion of the premium taxes for each self-insured employer as
determined under subdivisions (1) through (6), inclusive,
subsection © of this section shall not be increased during fiscal
years two thousand four, two thousand five and two thousand six.
(f) (d) (1) If an a self-insured employer defaults in the
payment of any portion of its self-insured employer premium taxes,
surcharges or assessments required under this chapter or rules
promulgated thereunder, or in any payment required to be made as
benefits provided by this chapter to the employer's injured
employees or dependants of fatally injured employees, the
commission Insurance Commissioner shall, in an appropriate case,
determine the full accrued value based upon generally accepted
actuarial and accounting principles of the employer's liability,
including the costs of all awarded claims and of all incurred but
not reported claims. The amount determined may, in an appropriate
case, be assessed against the employer. The commission Insurance
Commissioner may demand and collect the present value of the
defaulted tax liability. Interest shall accrue upon the demanded
amount as provided for in section thirteen of this article until
the premium tax liability is fully paid. Payment of all amounts
then due to the commission Insurance Commissioner and to the
employer's employees is a sufficient basis for reinstating the employer to good standing with the fund Insurance Commissioner and
removing the employer from default status. In addition, any self-
insured employer who, without good cause, ceases to make required
payments to the employer's injured employees or dependents of
fatally injured employees as benefits provided for by this chapter
including second injury benefits and catastrophic injury benefits,
if applicable, is in default. The board of managers shall establish
by rule the procedures by which the existence or nonexistence of
good cause is to be determined by the commission.
(2) Premium tax The assessments and surcharges required to be
paid by self-insured employers pursuant to the provisions of this
chapter and the rules promulgated thereunder are special revenue
taxes under and according to the provisions of state workers'
compensation law and are considered to be tax claims, as priority
claims or administrative expense claims according to those
provisions under the law provided in the United States Bankruptcy
Code, Title 11 of the United States Code. In addition, as the same
was previously intended by the prior provisions of this section,
this amendment and reenactment is for the purpose of clarification
of the taxing authority of the workers' compensation commission
Insurance Commissioner.
(g) Each self-insured employer shall elect whether or not to
self-insure its catastrophic injury risk as defined in subsection
©, section one, article three of this chapter. A self-insured
employer who elects to insure its catastrophic risk through a
policy of excess insurance obtained through a private insurance carrier approved by the commission shall provide a copy of the
policy to the commission. Upon termination of the commission, self-
insured employers shall either self-insure their catastrophic risk
or insure their catastrophic risk through a policy of excess
insurance obtained through a private insurance carrier approved by
the insurance commissioner. Self-insured employers shall also
reinsure their catastrophic risks.
(1) If the employer does not elect to self-insure its
catastrophic risk, the employer shall pay premium taxes for this
coverage in the same manner as is provided for in section four of
this article and in rules adopted to implement that section. As
stated in this subsection, this option shall expire upon
termination of the commission. If the employees of that employer
suffer injury or death from a catastrophe, the payment of the
resulting benefits shall be made from the catastrophe reserve of
the surplus fund provided for in subsection (b), section one,
article three of this chapter. Any portion of an employer's
catastrophic liability insured and paid under a policy of insurance
purchased by the employer shall not be included in the liabilities
upon which the employer's security or bond is determined in
subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-
insure its catastrophic risk, the security or bond required in
subsection (a) of this section shall include the liability for the
catastrophic risk.
(h) For those employers previously permitted to self-insure their second injury risks, the amount of the security or bond
required in subsection (a) of this section shall include the
liability for that risk. All benefits provided for by this chapter
which are awarded to the employer's employees which constitute
second injury life awards shall be paid by the employer and not the
commission.
(i) (e) The commission may create, implement, establish and
administer a perpetual self-insurance security risk pool of funds,
sureties, securities, insurance provided by private insurance
carriers or other states' programs, and other property, of both
real and personal properties, to secure the payment of obligations
of self-insured employers. If a pool is created, the board of
managers shall adopt rules for the organizational plan,
participation, contributions and other payments which may be
required of self-insured employers under this section. The board
of managers may adopt a rule authorizing the commission to assess
each self-insured employer in proportion according to each
employer's portion of the unsecured obligation and liability or to
assess according to some other method provided for by rule which
shall properly create and fund the risk pool to serve the needs of
employees, employers and the Workers' Compensation Fund by
providing adequate security. The board of managers establishing a
security risk pool, may authorize the executive director to use any
assessments, premium taxes and revenues and appropriations as may
be made available to the commission. Effective upon termination of
the commission, all statutory and regulatory authority provided to the commission and board of managers over pools created pursuant to
this section, as such pools are defined in section two, article
two-c of this chapter, shall transfer to the Insurance
Commissioner. Provided, That the funds contained in the security
pool shall be deposited into the old fund and the funds contained
in the guaranty pool shall be deposited in the self-insured
employer guaranty risk pool created in article two-c of this
chapter. All assets held by the commission for security pursuant to
85 CSR §19 (2004) shall transfer to the insurance commissioner.
(j) (f) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on reports to the commission Insurance
Commissioner for a period of four or more consecutive quarters
shall may have its status at the commission inactivated and shall
apply for reactivation to status as a self-insured employer prior
to its reemployment of employees. Despite the inactivation, the
self-insured employer shall continue to make payments on all awards
for which it is responsible. Upon application for reactivation of
its status as an operating self-insured employer, the employer
shall document that it meets the eligibility requirements needed to
maintain self-insured employer status under this section and any
rules adopted to implement it. If the employer is unable to
requalify and obtain approval for reactivation, the employer shall,
effective with the date of employment of any employee, become a
subscriber to the workers' compensation fund and, upon termination
of the commission, shall purchase workers' compensation insurance as provided for in article two-c of this chapter, but shall
continue to be a self-insurer as to the prior period of active
status and to furnish security or bond and meet its prior
self-insurance obligations.
(k) (g) In any case under the provisions of this section that
require requires the payment of compensation or benefits by an
employer in periodical payments and the nature of the case makes it
possible to compute the present value of all future payments, the
commission may, in its discretion, at any time compute and permit
to be paid into the Workers' Compensation Fund an amount equal to
the present value of all unpaid future payments on the award or
awards for which liability exists in trust. Thereafter, the
employer shall be discharged from any further portion of premium
tax liability upon the award or awards and payment of the award or
awards shall be assumed by the commission. Upon termination of the
commission, those self-insured the process herein described will no
longer be permitted. Self-insured employers may thereafter
withdraw from self-insured status and purchase workers'
compensation insurance as provided for in article two-c of this
chapter, but said self-insured employers shall remain liable for
their self-insured employer claims liabilities for each claim with
a date of injury or last exposure prior to the effective date of
insurance coverage.
(l) (h) Any employer subject to this chapter, who elects to
carry the employer's own risk by being a self-insured employer and
who has complied with the requirements of this section and of any applicable rules, shall not be liable to respond in damages at
common law or by statute for the injury or death of any employee,
however occurring, after the election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
(m) (i) An employer may not hire any person or group to self-
administer claims under this chapter as a third-party administrator
unless the person or group has been determined to be qualified to
be a third-party administrator by the commission Insurance
Commissioner pursuant to rules adopted by the board of managers or
industrial council. Any person or group whose status as a
third-party administrator has been revoked, suspended or terminated
by the commission Insurance Commissioner shall immediately cease
administration of claims and shall not administer claims unless
subsequently authorized by the commission Insurance Commissioner.
(n) (j) All regulatory, oversight and document gathering
authority provided to the commission under this section nine,
article two, chapter twenty-three shall transfer to the Insurance
Commissioner and the industrial council upon termination of the
commission.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of
the West Virginia Workers' Compensation Commission.
(a) On or before the first day of June, two thousand five, the
executive director may take such actions as are necessary to
establish an employers' mutual insurance company as a domestic, private, nonstock, corporation to:
(1) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled to
receive compensation pursuant to chapter twenty-three of this code
and federal Longshore and Harbor Workers' Compensation Act, 33 U.
S. C. §901, et seq.;
(2) Provide employer's liability insurance incidental to and
provided in connection with the insurance specified in paragraph
subdivision (1) of this subsection, including coal-workers
pneumoconiosis coverage and employer excess liability coverage as
provided in this chapter; and
(3) Transact such other kinds of property and casualty
insurance for which the company is otherwise qualified under the
provisions of this code.
(4) The company shall not sell, assign or transfer substantial
assets or ownership of the company.
(b) If the executive director establishes a domestic mutual
insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to
the provisions of this article shall, through a vote of a majority
of its provisional board, file its corporate charter and bylaws
with the Insurance Commissioner and apply for a license with the
Insurance Commissioner to transact insurance in this state.
Notwithstanding any other provision of this code, the Insurance
Commissioner shall act on the documents within fifteen days of the
filing by the company.
(2) In recognition of the workers' compensation insurance
liability insurance crisis in this state at the time of enactment
of this article and the critical need to expedite the initial
operation of the company, the Legislature hereby authorizes the
Insurance Commissioner to review the documentation submitted by the
company and to determine the initial capital and surplus
requirements of the company, notwithstanding the provisions of
section five-b, article three, chapter thirty-three of this code.
The company shall furnish the Insurance Commissioner with all
information and cooperate in all respects necessary for the
Insurance Commissioner to perform the duties set forth in this
section and in other provisions of this chapter and chapter thirty-
three of this code. The Insurance Commissioner shall monitor the
economic viability of the company during its initial operation on
not less than a monthly basis, until such time as the commissioner,
in his or her discretion, determines that monthly reporting is not
necessary. In all other respects the company shall be subject to
comply with the applicable provisions of chapter thirty-three of
this code.
(3) Subject to the provisions of subsection subdivision (4) of
this section subsection, the Insurance Commissioner may waive other
requirements imposed on mutual insurance companies by the
provisions of chapter thirty-three of this code as the Insurance
Commissioner determines is necessary to enable the company to begin
insuring employers in this state at the earliest possible date.
(4) Within forty months of the date of the issuance of its license to transact insurance, the company shall comply with the
capital and surplus requirements set forth in subsection (a),
section five-b, article three, chapter thirty-three of this code in
effect on the effective date of this enactment, unless said
deadline is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not and
shall not be considered a department, unit, agency or
instrumentality of the state for any purpose. All debts, claims,
obligations and liabilities of the company, whenever incurred,
shall be the debts, claims, obligations and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be
considered part of the General Revenue Fund of the state. The
debts, claims, obligations and liabilities of the company are not
and shall not be considered a debt of the state or a pledge of the
credit of the state.
(e) The company is not subject to provisions of article
nine-a, chapter six of this code; the provisions of chapter
twenty-nine-b of this code; the provisions of article three,
chapter five-a of this code; the provisions of article six, chapter
twenty-nine of this code; the provisions of article six-a of said
chapter; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon said
termination, private carriers, including the company, shall not be
subject to payment of premium taxes, surcharges and credits contained in article three, chapter thirty-three of this code on
premiums received for coverage under this chapter. In lieu
thereof, the workers' compensation insurance market shall be
subject to the following:
(1) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be collected by each private
carrier from its policyholders. The surcharge percentage shall be
calculated by dividing the previous fiscal year's total premiums
collected plus deductible payments by all employers into the
portion of the Insurance Commissioner's budget amount attributable
to regulation of the private carrier market. This resulting
percentage shall be applied to each policyholder's premium payment
and deductible payments as a surcharge and remitted to the
Insurance Commissioner. Said surcharge shall be remitted within
ten (10) ninety (90) days of receipt of premium payments; whenever
said payments are made by its insureds;
(2) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be remitted on a monthly
quarterly basis by self-insured employers and said percentage shall
be calculated by dividing previous year's self-insured payroll in
the state into the portion of the Insurance Commissioner's budget
amount attributable to regulation of the self-insured employer
market. This resulting percentage shall be applied to each
self-insured employer's monthly payroll and the resulting amount
shall be remitted as a regulatory surcharge by each self-insured
employer. The Workers' Compensation Board of Managers or industrial council may promulgate a rule for implementation of this
section. The company, all other private carriers and all
self-insured employers shall furnish the Insurance Commissioner
with all required information and cooperate in all respects
necessary for the Insurance Commissioner to perform the duties set
forth in this section and in other provisions of this chapter and
chapter thirty-three of this code. The surcharge shall be
calculated so as to only defray the costs associated with the
administration of chapter twenty-three of this code and the funds
raised shall not be used for any other purpose.
(3) Upon termination of the commission, the company and all
other private carriers shall collect a premiums surcharge from
their policyholders equal to ten percent, or such higher or lower
rate as annually determined, by the first day of May of each year,
by the Insurance Commissioner to produce forty-five million dollars
annually, of each policyholder's periodic premium amount for
workers' compensation insurance. Additionally, by the first day of
May each year, the self-insured employer community shall be
assessed a cumulative total of nine million dollars. The
methodology for the assessment shall be fair and equitable and
determined by exempt legislative rule issued by the Workers'
Compensation Board of Managers or industrial council. The amount
collected shall be remitted to the Insurance Commissioner for
deposit in the Workers' Compensation Debt Reduction Fund created in
section five, article two-d of this chapter.
(g) The new premiums surcharge imposed by subdivision (2) (3), subsection (f) of this section shall sunset and not be collectible
with respect to workers' compensation insurance premiums paid when
the policy is renewed on or after the first day of the month
following the month in which the Governor certifies to the
Legislature that the revenue bonds issued pursuant to article
two-d, chapter twenty-three of this code have been retired and that
the unfunded liability of the old fund has been paid or has been
provided for in its entirety, whichever occurs last.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.
(a) The West Virginia Workers' Compensation Uninsured Employer
Fund shall be governed by the following:
(1) All money and securities in the fund must be held by the
State Treasurer as custodian thereof to be used solely as provided
in this article.
(2) The State Treasurer may disburse money from the fund only
upon written requisition of the Insurance Commissioner.
(3) Assessments. -- The Insurance Commissioner shall assess
each private carrier and all may assess self-insured employers an
amount to be deposited in the fund. The assessment may be collected
by each private carrier from its policyholders in the form of a
policy surcharge. To establish the amount of the assessment, the
Insurance Commissioner shall determine the amount of money
necessary to maintain an appropriate balance in the fund for each
fiscal year and shall allocate a portion of that amount to be
payable by private carriers, a portion to be payable by self-
insured employers and a portion to be paid by any other appropriate group each of the groups subject to the assessment. After
allocating the amounts payable by each group, the Insurance
Commissioner shall apply an assessment rate to:
(A) Private carriers that reflects the relative hazard of the
employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers, if assessed, that results in an
equitable distribution of costs among the self-insured employers
and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees groups assessed that
results in an equitable distribution of costs among them and is
based upon expected annual expenditures for claims or premium to be
received.
(4) The Workers' Compensation Board of Managers or industrial
council may adopt rules for the establishment and administration of
the assessment methodologies, rates, payments and any penalties
that the workers' compensation board of managers it determines are
necessary to carry out the provisions of this section.
(b) Payments from the fund. -- shall be governed by the
following:
(1) Except as otherwise provided in this subsection, an
injured worker employee of any employer required to be covered
under this chapter who has failed to obtain coverage may receive
compensation from the uninsured employers' fund if such employee
(A) He or she meets all jurisdictional and entitlement provisions of this chapter, (B) He or she files a claim with the Insurance
Commissioner and (C) He or she makes an irrevocable assignment to
the Insurance Commissioner of a right to be subrogated to the
rights of the injured employee.
(2) If the Insurance Commissioner receives a claim, it shall
immediately notify the employer of the claim. For the purposes of
this section, the employer has the burden of proving that it
provided mandatory workers' compensation insurance coverage for the
employee or that it was not required to maintain workers'
compensation insurance for the employee. If the employer meets this
burden, benefits shall not be paid from the fund. Employees who
are injured while employed by a self-insured employer are
ineligible for benefits from the Workers' Compensation Uninsured
Employer Fund.
(3) Any employer who has failed to provide mandatory coverage
required by the provisions of this chapter is liable for all
payments made on its behalf, including any benefits, administrative
costs and attorney's fees paid from the fund or incurred by the
Insurance Commissioner.
(4) The Insurance Commissioner:
(A) May recover from the employer the payments made by it, any
accrued interest and attorney fees and costs by bringing a civil
action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the
third-party administrator of the Uninsured Employer Fund, to assist
in the collection of any liability of an uninsured employer.
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(5) The Insurance Commissioner shall:
(A) Determine whether the employer was insured within five
days after receiving notice of the claim from the employee.
(B) Assign the claim to the third-party administrator of the
fund for administration and, if appropriate, payment of
compensation.
(c) Initial determination upon receipt of a claim. --
(1) If the Insurance Commissioner determines that the
claimant's employer maintained a policy of workers' compensation
insurance pursuant to this chapter on the date of injury or last
exposure or that the employer was not required to maintain such a
policy on such date, then the claim shall not be accepted into the
fund; if the commissioner determines that the employer was required
to maintain such a policy but failed to do so, the claim will be
accepted into the fund and the Insurance Commissioner may assign
such a claim to the third-party administrator of the fund for
administration.
(6) (2) Upon determining whether the claim is accepted or
denied, the third-party administrator The Insurance Commissioner
shall notify the injured employee and the named employer of it's
the determination made pursuant to subdivision (1) of this
subsection and any party aggrieved thereby shall be entitled to
protest such determination in a hearing before the Insurance Commissioner: Provided, That in any such proceeding, the employer
has the burden of proving that it either provided mandatory
workers' compensation insurance coverage or that it was not
required to maintain workers' compensation insurance.
(d) Employer liability. --
(1) Any employer who has failed to provide mandatory coverage
required by the provisions of this chapter is liable for all
payments made and to be made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the Insurance Commissioner, plus interest calculated in
accordance with the provisions of section thirteen, article two of
this chapter.
(2) The Insurance Commissioner:
(A) May bring a civil action in a court of competent
jurisdiction to recover from the employer the amounts set forth in
subdivision (1) of this subsection. In any such action, the
Insurance Commissioner may also recover the present value of the
estimated future payments to be made on the employer's behalf and
the costs and attorney's fees attributable to such claim:
Provided, That the failure of the Insurance Commissioner to include
a claim for future payments shall not preclude one or more
subsequent actions for such amounts;
(B) May enter into a contract with any person, including the
third-party administrator of the Uninsured Employer Fund, to assist
in the collection of any liability of an uninsured employer; and
(C) In lieu of a civil action, may enter into an agreement or settlement regarding the collection of any liability of an
uninsured employer.
(3) In addition to any other liabilities provided in this
section, the Insurance Commissioner may impose an administrative
penalty of not more than ten thousand dollars against an employer
if the employer fails to provide mandatory coverage required by
this chapter. All penalties and other moneys collected pursuant to
this section shall be deposited into the Workers' Compensation
Uninsured Employer Fund.
(7) (e) Protests to claims decisions. -- Any party aggrieved
by a determination claims decision made by the Insurance
Commissioner or the third-party administrator regarding the claims
decisions made pursuant to this section in a claim that has been
accepted into the fund may appeal object to that determination
decision by filing a protest with the office of judges as set forth
in article five of this chapter.
(8) An uninsured employer is liable for the interest on any
amount paid on his or her claims from the fund. The interest must
be calculated at a rate set in accordance with the provisions of
section thirteen, article two of this chapter, compounded monthly,
from the date the claim is paid from the account until payment is
received by the Insurance Commissioner or third-party administrator
from the employer.
(9) Attorney's fees recoverable by the Insurance Commissioner
or third-party administrator pursuant to this section must be paid
at the usual and customary rate for that attorney.
(10) In addition to any other liabilities provided in this
section, the Insurance Commissioner or the third-party
administrator may impose an administrative fine of not more than
ten thousand dollars against an employer if the employer fails to
provide mandatory coverage required by this chapter. All fines and
other moneys collected pursuant to this section shall be deposited
into the Uninsured Employer Fund.
(c) Employees of self-insured employers who are injured while
employed by a self-insured employer are ineligible for benefits
from the West Virginia Uninsured Employer Fund.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all
subscriber policies with the commission shall novate to the company
and all employers otherwise shall purchase workers' compensation
insurance from the company unless permitted to self-insure their
obligations. The company shall assume responsibility for all new
fund obligations of the subscriber policies which novate to the
company or which are issued thereafter. Each subscriber whose
policy novates to the company shall also have its advanced deposit
credited to its account with the company. Employers purchasing
workers' compensation insurance from the company shall have the
right to designate a representative or agent to act on its behalf
in any and all matters relevant to coverage and claims as
administered by the company.
(b) Effective the first day of July, two thousand eight, an
employer may elect to: (1) Continue to purchase workers' compensation insurance from the company; (2) purchase workers'
compensation insurance from another private carrier licensed and
otherwise authorized to transact workers' compensation insurance in
this state; or (3) self-insure its obligations if it satisfies all
requirements of this code to so self-insure and is permitted to do
so: Provided, That all state and local governmental bodies,
including, but not limited to, all counties and municipalities and
their subdivisions and including all boards, colleges, universities
and schools, shall continue to purchase workers' compensation
insurance from the company through the thirtieth day of June, two
thousand twelve. The company and other private carriers shall be
permitted to sell workers' compensation insurance through licensed
agents in the state. To the extent that a private carrier markets
workers' compensation insurance through a licensed agent, it shall
be subject to all applicable provisions of chapter thirty-three of
this code. All employers' must immediately notify the Insurance
Commissioner of its private carrier and any change thereto.
(c) An employer may elect to change its private insurer
carrier on or after the first day of July, two thousand eight, if
the employer has:
(1) Given at least thirty days' notice to the Insurance
Commissioner of the change of insurer; and
(2) Furnished evidence satisfactory to the Insurance
Commissioner that the payment of compensation has otherwise been
secured.
(d) Each private carrier and employer shall notify the Insurance Commissioner if an employer has changed his or her
insurer or has allowed his or her insurance to lapse within twenty-
four hours or by the end of the next working day, whichever is
later, after the insurer has notice of the change or lapse.
(c) Every employer shall post a notice upon its premises in a
conspicuous place identifying its industrial workers' compensation
insurer. The notice must include the insurer's name, business
address and telephone number and the name, business address and
telephone number of its nearest adjuster in this state. The
employer shall at all times maintain the notice provided for the
information of his or her employees. Release of employer policy
information and status by the industrial council and the Insurance
Commissioner shall be governed by section four, article one of this
chapter. The Insurance Commissioner shall collect and maintain
information related to officers, directors and ten percent or more
owners of each carrier's policyholders, The and each private
carrier shall provide said information to the Insurance
Commissioner within sixty days of the issuance of a policy and any
changes to the information shall thereafter be reported within
sixty days of such change.
(e) (d) Any rule promulgated by the workers' compensation
board of managers or industrial council empowering agencies of this
state to revoke or refuse to grant, issue or renew any contract,
license, permit, certificate or other authority to conduct a trade,
profession or business to or with any employer whose account is in
default with the commission with regard to any liability under this chapter shall be fully enforceable by the Insurance Commissioner
against the any such employer in policy default with a private
carrier.
(f) (e) Effective the first day of January, two thousand nine,
the company may decline to offer coverage to any applicant.
Effective the first day of January, two thousand nine, the company
and private carriers may cancel a policy or decline to renew a
policy upon the issuance of sixty days' written advance notice to
the policyholder: Provided, That cancellation of the policy by the
carrier for failure of consideration to be paid by the policyholder
is effective after fifteen days' advance written notice of
cancellation to the policyholder.
(f) Every private carrier shall notify the Insurance
Commissioner or his or her designee of: (i) The issuance or
renewal of insurance coverage, within ten calendar days of the
effective date of coverage; and (ii) a termination of coverage due
to lapse, refusal to renew or cancellation, within three business
days of the effective date of the termination; such notifications
shall be on forms developed by the Insurance Commissioner.
§23-2C-18. Ratemaking; Insurance Commissioner.
(a) For the fiscal year beginning the first day of July, two
thousand six, the company shall charge the actuarially determined
base rates for the fiscal year. The base rates shall be calculated
by the company and submitted for approval by the insurance
commissioner.
(b) For the fiscal year beginning the first day of July, two thousand seven, the company shall charge the actuarially determined
base rates for said fiscal year. The base rates shall be calculated
by the company and submitted for approval by the insurance
commissioner.
(c) Effective for the fiscal year beginning the first day of
July, two thousand eight, all private carriers' rates shall be
governed by the following:
(1) For the period beginning on first day of July, two
thousand eight, and ending on the thirtieth day of June, two
thousand nine, no more than five percent variance from the base
rates established by the insurance commissioner.
(2) For the period beginning on the first day of July, two
thousand nine, and ending on the thirtieth day of June, two
thousand ten, no more than ten percent variance from the base rates
established by the insurance commissioner.
(d) For the period beginning on the first day of July, two
thousand six through the thirtieth day of June, two thousand ten,
the company and, when applicable, a private carrier, may continue
to calculate experience modification factors and other related
rating modification methodologies to adequately insure individual
employer risks.
(e) The variances provided in this section are only applicable
to base rates and shall be exclusive of experience modification and
other related adjustments, including surcharges imposed by this
chapter.
(f) For the period beginning the first day of July, two thousand ten, and thereafter, the insurance commissioner shall set
base rates for approved classifications and thereafter in
accordance with rules established in accordance with subsection
nine of this section. Said rates shall be released to the public at
least ninety days prior to the first day of July each year. Within
thirty days from this release date, private carriers shall submit
to the insurance commissioner their proposed rates, which may be
higher than the base rates established by the insurance
commissioner. The insurance commissioner retains authority to
disapprove rates in effect if it is determined that the rates are
not in compliance with the following:
(a) (1) The rate-making provisions and premium provisions
contained in article two of this chapter shall not be applicable to
the company or other private carriers. Rates for workers'
compensation insurance are subject to the provisions of this
section, section eighteen-a of this article and article twenty,
chapter thirty-three of this code.
(2) In the event of any conflict, the provisions of this
article shall have paramount effect, but the provisions in chapters
twenty-three and thirty-three of this code shall be construed as
complementary and harmonious unless so clearly in conflict that
they cannot reasonably be reconciled.
(b) An insurer shall file its rates by filing a multiplier
or
multipliers
to be applied to prospective loss costs that have been
filed by the designated advisory organization on behalf of the
insurer in accordance with section eighteen-a of this article and may also file carrier specific rating plans.
(1) (c) Rates must not be excessive, inadequate or unfairly
discriminatory, nor may an insurer charge any rate which if
continued will have or tend to have the effect of destroying
competition or creating a monopoly.
(2) (d) The Insurance Commissioner may disapprove rates if
there is not a reasonable degree of price competition at the
consumer level with respect to the class of business to which they
apply. In determining whether a reasonable degree of price
competition exists, the Insurance Commissioner shall consider all
relevant tests, including:
(A) (1) The number of insurers actively engaged in the class
of business and their shares of the market;
(B) (2) The existence of differentials in rates in that class
of business;
(C) (3) Whether long-run profitability for private carriers
generally of the class of business is unreasonably high in relation
to its risk;
(D) (4) Consumers' knowledge in regard to the market in
question; and
(E) (5) Whether price competition is a result of the market or
is artificial. If competition does not exist, rates are excessive
if they are likely to produce a long-run profit that is
unreasonably high in relation to the risk of the class of business,
or if expenses are unreasonably high in relation to the services
rendered.
(3) (e) Rates are inadequate if they are clearly insufficient,
together with the income from investments attributable to them, to
sustain projected losses and expenses in the class of business to
which they apply.
(4) (f) One rate is unfairly discriminatory in relation to
another in the same class if it clearly fails to reflect equitably
the differences in expected losses and expenses. Rates are not
unfairly discriminatory because different premiums result for
policyholders with similar exposure to loss but different expense
factors, or similar expense factors but different exposure to loss,
so long as the rates reflect the differences with reasonable
accuracy. Rates are not unfairly discriminatory if they are
averaged broadly among persons insured under a group, franchise or
blanket policy.
(g) The rate-making provisions and premium provisions
contained in article two of this chapter shall not be applicable to
the company or other private carriers. The workers' compensation
board of managers, in consultation with the insurance commissioner
shall issue an exempt legislative rule to govern ratemaking and
premium collection by the company and other private carriers.
§23-2C-18a. Designation of rating organization.
(a) For the purposes of this section:
(1) "Classification system" or "classification" means the
plan, system or arrangement for grouping risks with similar
characteristics or a specified class of risk by recognizing
differences in exposure to hazards.
(2) "Experience rating" means a statistical procedure
utilizing past risk experience to produce a prospective premium
credit, debit or unity modification.
(3) "Prospective loss costs" means historical aggregate losses
and loss adjustment expenses projected through development to their
ultimate value and through trending to a future point in time.
Prospective loss costs do not include provisions for profit or
expenses other than loss adjustment expenses.
(4) "Statistical plan" means the plan, system or arrangement
used in collecting data for ratemaking or other purposes.
(b) The Insurance Commissioner shall designate one rating
organization to:
(1) Assist the commissioner in gathering, compiling and
reporting relevant statistical information on an aggregate basis;
(2) Develop and administer, subject to approval by the
commissioner, the uniform statistical plan, uniform classification
plan and uniform experience rating plan;
(3) Develop and file manual rules, subject to the approval of
the commissioner, that are reasonably related to the recording and
reporting of data pursuant to the uniform statistical plan, uniform
experience rating plan and the uniform classification plan; and
(4) File with the commissioner for approval all prospective
loss costs, provisions for special assessments, all supplementary
rating information and any changes, amendments or modification of
the forgoing proposed in this state.
(c) Each workers' compensation insurer shall:
(1) Record and report its workers' compensation experience to
the designated rating organization as set forth in the uniform
statistical plan approved by the commissioner; and
(2) Adhere to the uniform classification plan and uniform
experience rating plan developed by the designated rating
organization and approved by the commissioner.
(d) The commissioner may promulgate exempt legislative rules
to implement the provisions of this section, including a rule
providing for the equitable sharing and recovery of the expense of
the designated rating organization in performing the functions set
forth in subsection (b) of this section.
§23-2C-19. Premium payment; employer default; special provisions
as to employer default collection.
(a) Each employer who is required to purchase and maintain
workers' compensation insurance or who elects to purchase workers'
compensation insurance shall pay a premium to a private carrier.
Each carrier shall notify its policyholders of the mandated premium
payment methodology and under what circumstances a policyholder
will be found to be in policy default.
(b) An employer who is required to purchase and maintain
workers' compensation insurance but fails to do so or otherwise
enters policy default shall be deprived of the benefits and
protection afforded by this chapter, including section six, article
two of this chapter, and the employer is liable as provided in
section eight of said article. The policy defaulted employer's
liability under these sections is retroactive to the day the policy default occurs. The private carrier shall notify the policy
defaulted employer of the method by which the employer may be
reinstated with the private carrier.
(c) A private carrier is authorized to commence a civil action
against an employer who, after due notice, defaults on any payment.
If judgment is against the employer, the employer shall pay the
costs of the action. Upon prevailing in a civil action, the private
carrier is entitled to recover its attorneys' fees and costs of
action from the employer.
(d) In addition to the provisions of subsection (a) of this
section, any payment, interest and penalty due and unpaid under
this chapter is a personal obligation of the employer, its officers
and its directors, immediately due and owing to the private carrier
and shall, in addition, be a lien enforceable against all the
property of the employer: Provided, That the lien shall not be
enforceable as against a purchaser (including a lien creditor) of
real estate or personal property for a valuable consideration
without notice, unless docketed as provided in section one, article
ten-c, chapter thirty-eight of this code: Provided, however, That
the lien may be enforced as other judgment liens are enforced
through the provisions of said chapter and the same is considered
deemed by the circuit court to be a judgment lien for this purpose.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do business in this state, until notified by its private carrier that
all payments, interest and penalties thereon against the
corporation which is an employer under this chapter have been paid
or that provision satisfactory to the private carrier has been made
for payment.
(f) (c) In addition to any other liabilities provided in this
section, the Insurance Commissioner may impose an administrative
fine of not more than ten thousand dollars against an employer if
the employer fails to provide mandatory coverage required by this
chapter. Further, prior to providing an applicant employer with
coverage mandated in this chapter, all private carriers shall
exercise reasonable due diligence to ensure that an employer
applicant has not been in policy default with another carrier or in
default with the commission. If it is discovered that the employer
applicant remains in policy default with another carrier or the
commission, the company or new carrier shall not provide the
coverage mandated by this chapter until such time as the
preexisting policy default is cured. Any provider violating this
provision may be fined not more than ten thousand dollars by the
insurance commissioner.
(g) (d) The company and the Insurance Commissioner shall be
provided extraordinary powers to collect any premium amounts
payable to the Workers' Compensation Fund or the new fund and due
from the first day of July, two thousand five, through the
thirtieth day of June, two thousand eight. Those powers shall
include: (1) Withholding of coverage effective the first day of January, two thousand six. Employers without coverage shall
immediately be deprived of the benefits and protection afforded by
this chapter, including section six, article two of this chapter
and the employer is liable as provided in section eight of said
article; (2) the right to maintain a civil action against all
officers and directors of the employer individually for collection
of the premium owed; and (3) the right to immediately report the
employers to the State Tax Department and other state agencies to
secure suspension of any and all licenses, certificates, permits,
registrations and other similar approval documents necessary for
the employer to conduct business in this state.
(e) Every agency shall, upon notification of employer default
by the Insurance Commissioner, immediately begin the process to
revoke or terminate any contract, license, permit, certificate or
other authority to conduct a trade, profession or business in this
state and shall refuse to issue, grant or renew any such contract,
license, permit, certificate or authority.
(1) The term "employer default" means having an outstanding
balance or liability to the old fund or to the uninsured employers'
fund or being in policy default, as defined in section two of this
article, or failure to maintain mandatory workers' compensation
coverage. An employer is not in default if it has entered into a
repayment agreement with the Insurance Commissioner and remains in
compliance with the obligations under the repayment agreement.
(2) The term "agency" includes any unit of state government
such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations.
(f) Any amounts owed by an employer to the state as a result
of an employer default is a personal liability of the employer, its
officers, owners, partners and directors and is immediately due and
owing and shall, in addition, be a lien enforceable against all the
property of the employer, its officers, owners, partners and
directors: Provided, That the lien shall not be enforceable as
against a purchaser, including a lien creditor, of real estate or
personal property for a valuable consideration without notice,
unless docketed as provided in section one, article ten-c, chapter
thirty-eight of this code: Provided, however, That the lien may be
enforced as other judgment liens are enforced through the
provisions of said chapter and the same is considered by the
circuit court to be a judgment lien for this purpose.
(g) The Insurance Commissioner shall propose rules for
adoption by the industrial council to effectuate the purposes of
this section including the conditions under which agencies shall
comply with the provisions of subsection (e) of this section and
specifying how notice of default shall be given by the
commissioner.
ARTICLE 5. REVIEW.
§23-5-9. Hearings on objections to Insurance Commissioner;
private carrier or self-insured employer decisions;
mediation; remand.
(a) Objections to a decision of the Workers' Compensation
Commission, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self-
insured employers employer, whichever is applicable, made pursuant
to the provisions of section one of this article shall be filed
with the office of judges. Upon receipt of an objection, the
office of judges shall notify the commission, the successor to the
commission, other Insurance Commissioner, private insurance
carriers and carrier or self-insured employers employer, whichever
is applicable, and all other parties of the filing of the
objection. The office of judges shall establish by rule
promulgated in accordance with the provisions of subsection (e),
section eight of this article an adjudicatory process that enables
parties to present evidence in support of their positions and
provides an expeditious resolution of the objection. The employer,
the claimant, and the commission, the successor to the commission,
other Insurance Commissioner, private insurance carriers and
carrier or self-insured employers employer, whichever is are
applicable, shall be notified of any hearing at least ten days in
advance. The office of judges shall review and amend, or modify,
as necessary its procedural rules by the first day of July, two
thousand seven.
(b) The office of judges shall establish a program for
mediation to be conducted in accordance with the requirements of
rule twenty-five of the West Virginia Trial Court Rules. The
parties may agree that the result of the mediation is binding. A
case may be referred to mediation by the administrative law judge
on his or her own motion, on motion of a party or by agreement of the parties. Upon issuance of an order for mediation, the office
of judges shall assign a mediator from a list of qualified
mediators maintained by the West Virginia State Bar.
(c) The office of judges shall keep full and complete records
of all proceedings concerning a disputed claim. Subject to the
rules of practice and procedure promulgated pursuant to section
eight of this article, the record upon which the matter shall be
decided shall include any evidence submitted by a party to the
office of judges and evidence taken at hearings conducted by the
office of judges. and any documents in the claim files which relate
to the subject matter of the objection. The record may include
evidence or documents submitted in electronic form or other
appropriate medium in accordance with the rules of practice and
procedure. The office of judges is not bound by the usual common
law or statutory rules of evidence.
(d) All hearings shall be conducted as determined by the chief
administrative law judge pursuant to the rules of practice and
procedure promulgated pursuant to section eight of this article.
Upon consideration of the designated record, the chief
administrative law judge or other authorized adjudicator within the
office of judges shall, based on the determination of the facts of
the case and applicable law, render a decision affirming, reversing
or modifying the action protested. The decision shall contain
findings of fact and conclusions of law and shall be mailed to all
parties.
(e) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of October, two
thousand three. Until the rule is promulgated, any rules
previously promulgated shall remain in full force and effect.
(f) (e) The office of judges may remand a claim to the
commission, the successor to the commission, other Insurance
Commissioner, private insurance carriers and carrier or self-
insured employers employer, whichever is applicable, for further
development of the facts or administrative matters as, in the
opinion of the administrative law judge, may be necessary for a
full and complete disposition of the case. The administrative law
judge shall establish a time within which the commission, the
successor to the commission, other Insurance Commissioner, private
insurance carriers and carrier or self-insured employers employer,
whichever is applicable, must report back to the administrative law
judge.
(g) (f) The decision of the workers' compensation office of
judges regarding any objections to a decision of the workers'
compensation commission, the successor to the commission, other
Insurance Commissioner, private insurance carriers and carrier or
self-insured employers employer, whichever is applicable, is final
and benefits shall be paid or denied in accordance with the
decision, unless an order staying the payment of benefits is
specifically entered by the Workers' Compensation Board of Review
created in section eleven of this article or by the administrative
law judge who granted the benefits. No stay with respect to any
medical treatment or rehabilitation authorized by the office of judges may be granted. If the decision is subsequently appealed and
reversed in accordance with the procedures set forth in this
article, and any overpayment of benefits occurs as a result of such
reversal, any such overpayment may be recovered pursuant to the
provisions of subsection (h), section one-c, article four of this
chapter or subsection (d), section one-d of said article, as
applicable.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 595--A Bill to amend and
reenact
§23-1-1 and §23-1-1f of the Code of West Virginia, 1931, as
amended; to amend and reenact §23-2-9 of said code; to amend and
reenact §23-2C-3, §23-2C-8, §23-2C-15, §23-2C-18 and §23-2C-19 of
said code; to amend said code by adding thereto a new section,
designated §23-2C-18a; and to amend and reenact §23-5-9 of said
code, all relating to the transition to a private workers'
compensation insurance system; expressing legislative intent;
permitting the Insurance Commissioner to hire additional exempt
employees; exempting the Insurance Commissioner from purchasing
rules in some circumstances; changing requirements for approval of
self-insured status and for reports from self-insured employers;
making various technical changes necessitated by the transition to
a private workers' compensation insurance system; reducing
frequency of certain payments from self-insured employers and
private carriers; authorizing the Insurance Commissioner to assess self-insured employers for certain funds; making certain
assessments against self-insured employers discretionary with the
Insurance Commissioner; clarifying how disputes related to claims
against the Uninsured Employer Fund are resolved; increasing time
that employers must report certain changes in coverage to the
Insurance Commissioner; authorizing the Insurance Commissioner to
promulgate exempt legislative rules; revising rate-making process;
defining terms; providing for the designation of a single rating
organization; deleting provisions regarding private carrier premium
collection; requiring agencies to terminate or revoke licenses,
permits or certifications of employers in default to the state;
clarifying persons subject to certain liens; removing requirement
that the record of proceedings before the office of judges include
certain documents; requiring the implementation of any benefit or
award granted by a decision of the office of judges, unless stayed
by explicit order; placing limitations on scope of permitted stay;
and regarding the handling of resulting overpayments.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 595, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 595) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 595) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 599, Eliminating early resignation notification bonus for certain teachers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting clause and
inserting in lieu thereof the following:
That §18A-2-2 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 §18A-2-5a, all to read as
follows:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-2. Employment of teachers; contracts; continuing contract
status; how terminated; dismissal for lack of need;
released time; failure of teacher to perform contract
or violation thereof.
(a) Before entering upon their duties, all teachers shall
execute a contract with their county boards, of education, which
contract shall state the salary to be paid and shall be in the form
prescribed by the state superintendent. of schools. Every such
Each contract shall be signed by the teacher and by the president
and secretary of the county board of education and when so signed
shall be filed, together with the certificate of the teacher, by
the secretary of the office of the county board.
(b) A teacher's contract, under this section, shall be for a
term of not less than one nor more than three years, one of which shall be for completion of a beginning teacher internship pursuant
to the provisions of section two-b, article three of this chapter,
if applicable. and if If, after three years of such employment, the
teacher who holds a professional certificate, based on at least a
bachelor's degree, has met the qualifications for the same a
bachelor's degree and the county board of education enter into a
new contract of employment, it shall be a continuing contract,
subject to the following:
(1) Provided, That any Any teacher holding a valid certificate
with less than a bachelor's degree who is employed in a county
beyond the said three-year probationary period shall upon
qualifying for said the professional certificate based upon a
bachelor's degree, if redeployed, be granted continuing contract
status; and
(2) Provided, however, That a A teacher holding continuing
contract status with one county shall be granted continuing
contract status with any other county upon completion of one year
of acceptable employment if such the employment is during the next
succeeding school year or immediately following an approved leave
of absence extending no more than one year.
(c) The continuing contract of any teacher shall remain in
full force and effect except as modified by mutual consent of the
school board and the teacher, unless and until terminated, subject
to the following:
(1) A continuing contract may not be terminated except:
(A) By a majority vote of the full membership of the county board on or before the first Monday of April of the then current
year, after written notice, served upon the teacher, return receipt
requested, stating cause or causes and an opportunity to be heard
at a meeting of the board prior to the board's action thereon on
the termination issue; or
(2) (B) By written resignation of the teacher before that
date, to initiate termination of a continuing contract;
(2) Such The termination shall take effect at the close of the
school year in which the contract is so terminated;
(3) Provided, That the The contract may be terminated at any
time by mutual consent of the school board and the teacher;
(4) and that this This section shall does not affect the
powers of the school board to suspend or dismiss a principal or
teacher pursuant to section eight of this article;
(5) Provided, however, That a A continuing contract for any
teacher holding a certificate valid for more than one year and in
full force and effect during the school year one thousand nine
hundred eighty-four and one thousand nine hundred eighty-five shall
remain in full force and effect;
(6) Provided further, That a A continuing contract shall not
operate to prevent a teacher's dismissal based upon the lack of
need for the teacher's services pursuant to the provisions of law
relating to the allocation to teachers and pupil-teacher ratios.
The written notification of teachers being considered for dismissal
for lack of need shall be limited to only those teachers whose
consideration for dismissal is based upon known or expected circumstances which will require dismissal for lack of need. An
employee who was not provided notice and an opportunity for a
hearing pursuant to subsection (a) of this section this subsection
may not be included on the list. In case of such dismissal the
teachers so for lack of need, a dismissed teacher shall be placed
upon a preferred list in the order of their length of service with
that board. and no No teacher shall be employed by the board until
each qualified teacher upon the preferred list, in order, shall
have has been offered the opportunity for reemployment in a
position for which they are he or she is qualified, And provided
further, That he or she has not including a teacher who has
accepted a teaching position elsewhere. Such The reemployment
shall be upon a teacher's preexisting continuing contract and shall
have has the same effect as though the contract had been suspended
during the time the teacher was not employed.
(d) In the assignment of position or duties of a teacher under
said a continuing contract, the board may provide for released time
of a teacher for any special professional or governmental
assignment without jeopardizing the contractual rights of such the
teacher or any other rights, privileges or benefits under the
provisions of this chapter. Released time shall be provided for
any professional educator while serving as a member of the
Legislature during any duly constituted session of that body and
its interim and statutory committees and commissions without
jeopardizing his or her contractual rights or any other rights,
privileges, benefits or accrual of experience for placement on the state minimum salary schedule in the following school year under
the provisions of this chapter, board policy and law.
(e) Any teacher who fails to fulfill his or her contract with
the board, unless prevented from so doing so by personal illness or
other just cause or unless released from such his or her contract
by the board, or who violates any lawful provision thereof of the
contract, shall be disqualified to teach in any other public school
in the state for a period of the next ensuing school year and the
State Department of Education or board may hold all papers and
credentials of such the teacher on file for a period of one year
for such the violation: Provided, That marriage of a teacher shall
not be considered a failure to fulfill, or violation of, the
contract.
(f) Any classroom teacher, as defined in section one, article
one of this chapter, who desires to resign employment with a county
board of education or request a leave of absence, such the
resignation or leave of absence to become effective on or before
the fifteenth day of July of the same year and after completion of
the employment term, may do so at any time during the school year
by written notification thereof of the resignation or leave of
absence and any such notification received by a county board of
education shall automatically extend such the teacher's public
employee insurance coverage until the thirty-first day of August of
the same year.
(g) Any classroom teacher who gives written notice to the
county board of education on or before the first day of February of the school year of their resignation or retirement from employment
with the board at the conclusion of the school year shall be paid
five hundred dollars from the "Early Notification of Retirement"
line item established for the Department of Education for this
purpose, subject to appropriation by the Legislature. If the
appropriations to the Department of Education for this purpose are
insufficient to compensate all applicable teachers, the Department
of Education shall request a supplemental appropriation in an
amount sufficient to compensate all such teachers. Additionally,
if funds are still insufficient to compensate all applicable
teachers, the priority of payment is for teachers who give written
notice the earliest. This payment shall not be counted as part of
the final average salary for the purpose of calculating retirement.
§18A-2-5a. Authorizing payment for notification of retirement.
Each county board is authorized to pay, entirely from local
funds, five hundred dollars or less to any service employee, or to
any professional employee who is not a classroom teacher, who gives
written notice to the county board on or before the first day of
February of the school year of his or her retirement from
employment with the board at the conclusion of the school year.
;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 599--A Bill to
amend and
reenact §18A-2-2 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new section, designated §18A-2-5a, all relating to employment of teachers and other school
employees; eliminating the early notification payment for a
classroom teacher who gives notice of resignation; authorizing a
payment for early notification of retirement to employees other
than classroom teachers under certain circumstances; and making
certain technical changes.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 599, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 599) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 612, Increasing criminal
penalties for violations of certain hunting and fishing laws by
nonresidents.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-9. Violations of chapter generally; penalties.
Any person violating any of the provisions of this chapter or
rules and regulations promulgated under the provisions of this
chapter, the punishment for which is not prescribed, shall be
guilty of a misdemeanor and, upon conviction thereof, shall for
each offense be fined not less than twenty nor more than three
hundred dollars or confined in jail not less than ten nor more than
one hundred days, or be both fined and imprisoned within the
limitations aforesaid and, in the case of a violation by a
corporation, every officer or agent thereof directing or engaging
in such violation shall be guilty of a misdemeanor and, upon
conviction thereof, shall be subject to the same penalties and
punishment as herein provided: Provided, That any person violating
subdivision (3), section five, article two of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than five hundred
dollars and shall be imprisoned for not less than ten days nor more
than one hundred days: Provided, however, That any person
violating sections forty-three and forty-five article two of this
chapter who is in violation of section twenty-seven, article two of
this chapter, as a result of their failure to have a valid Class E
nonresident hunting and trapping license, as defined by section
forty-two-d of this article, or a valid Class EE nonresident bear
hunting license, as defined by section forty-two-e of this article,
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than two hundred
fifty dollars nor more
than three five hundred dollars, or confined in jail not less than
ten nor more than one hundred days, or both fined and imprisoned
within the limitations aforesaid: Provided further, That any person
who is in violation of
section twenty-seven, article two of this
chapter,
as a result of their failure to have a Class F nonresident
fishing license, as defined by section forty-two-f of this article,
shall be guilty of a misdemeanor and, upon conviction thereof,
fined not less than one hundred dollars nor more than three hundred
dollars, or confined in jail not less than ten nor more than one
hundred days,
or both fined and imprisoned: And provided further,
That any person violating any parking or speeding regulations as
promulgated by the director on any state parks, state forests,
public hunting and fishing areas and all other lands and waters
owned, leased or under the control of the department Division of Natural Resources shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two nor more than
one hundred dollars or imprisoned in the county jail not more than
ten days, or both fined and imprisoned.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 612, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 612) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 631, Providing refundable exemption for certain contractor purchases.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section eight-d, line thirty-two, by striking
out the word "January" and inserting in lieu thereof the word
"July".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 631, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 631) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 748, Relating to structuring Electronic
Telecommunication Open Infrastructure Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
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 §5B-4-1, §5B-4-2, §5B-
4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9, §5B-4-
10, §5B-4-11, §5B-4-12, §5B-4-13, §5B-4-14 and §5B-4-15
,
all to
read as follows:
ARTICLE 4. ELECTRONIC TELECOMMUNICATION OPEN INFRASTRUCTURE ACT.
§5B-4-1. Short title.
This article may be cited as the Electronic Telecommunication
Open Infrastructure Act and may be referred to as ETOPIA.
§5B-4-2. Definitions.
The following terms, wherever used or referred to in this
article, shall have the following meanings unless a different
meaning clearly appears from the context:
(1) "Broadband infrastructure" means all facilities, hardware and software and other intellectual property necessary to provide
broadband services in this state, including, but not limited to,
voice, video and data.
(2) "Broadband services" means the services, including, but
not limited to, voice, video and data, that provide capacity for
transmission in excess of two hundred kilobits per second in at
least one direction, regardless of the technology or medium used,
including, but not limited to, wireless, copper wire, fiber-optic
cable or coaxial cable.
(3) "Commission" means the Joint Legislative Oversight
Commission on Transportation and Infrastructure established by the
provisions of section eleven of this article.
(4) "Department of Commerce" means the department within the
executive branch of West Virginia state government, established by
the provisions of subdivision (8), subsection (a), section two,
article one, chapter five-f of this code. It is headed by the
Secretary of Commerce, who is appointed by the Governor with the
advice and consent of the Senate.
(5) "E-business" means "electronic business" and includes any
business process that relies on automated information systems that
are principally performed with web-based technologies. E-business
involves business processes spanning electronic purchasing and
supply-chain management, the processing of orders electronically,
the handling of customer service and cooperation with business
partners. Special technical standards for e-business facilitate
the exchange of data between companies. E-business software solutions allow the integration of intra- and inter-firm business
processes. E-business can be conducted using the world wide web
(web), the internet, intranets, extranets or a combination of these
tools.
(6) "E-commerce" means "electronic commerce" or any range of
transactions that consists primarily of the distributing, buying,
selling, marketing and servicing of products or services over an
electronic system such as the internet or other computer networks.
The information technology industry may view this activity as an
electronic business application aimed at commercial transactions.
In this context, e-commerce can involve electronic funds transfer,
supply-chain management, e-marketing, online marketing, online
transaction processing, electronic data interchange (EDI),
automated inventory management systems and automated data
collection systems. Electronic commerce typically uses the
electronic communications technology of the world wide web at some
point in the transaction's lifecycle, although electronic commerce
frequently depends on computer technologies other than the world
wide web such as databases and e-mail and on other noncomputer
technologies such as transportation for physical goods sold via
e-commerce.
(7) "E-government" means "electronic government" or the use of
telecommunications technology to facilitate and provide for access
by the public to:
(A) Proceedings and operations of government;
(B) Records and information regarding the programs and services that are currently implemented or are to be proposed or
discontinued by a governmental entity;
(C) Any records, not otherwise exempt by law from disclosure,
that are kept by governmental entities and that would otherwise be
available through nonweb-based means; and
(D) Transactions between the government and the public such as
a citizen's receipt and return of forms and applications,
including, but not limited to, driver's license applications, the
payment of fines or penalties, or the filing of taxes. "E-
government" also includes the use of telecommunications technology
to facilitate and provide for exchanges of information between
separate governmental entities, whether local, state or federal,
and the use of videoconferencing to conduct governmental
proceedings with remote participants, including, but not limited
to, the establishment of telecourts that adequately provide for the
protection of the constitutional rights and privileges of persons
involved in civil or criminal litigation, such as arraignments,
hearings, conferences, trials and appeals held before such
tribunals, and allow for appropriate rulings to be made with
dispatch.
(8) "E-learning" means "electronic learning" or the use of
telecommunications technology to facilitate and provide education,
through lectures or other instructional training, as well as
providing access to stored knowledge and information and other
learning resources. The most common application of e-learning is
asynchronous e-learning which uses web-based learning modules but does not support real time interaction between the instructor and
the students, and other asynchronous functions that typically
support the learning environment. Synchronous e-learning requires
more bandwidth than asynchronous e-learning and consists
principally of on-line real-time lectures which typically have to
be joined by students at the time of their delivery. Most
demanding in terms of bandwidth are forms of collaborative e-
learning in which students have to interact continuously to solve
problems or engage in other learning activities.
(9) "Facilitator" or "nonprofit facilitator" means a nonprofit
corporation or any other lawfully constituted not-for-profit
organization or entity that can:
(A) Ally itself with both public and private partners to form
a strategic alliance with governmental entities, technology-minded
companies, institutions of higher learning and any other public and
private entities that support the growth and expansion of
electronic access to technology, technology planning, public policy
and public relations; and
(B) Design a workforce recruitment plan that will necessarily
be required to construct and implement the necessary broadband to
which this state has committed, i.e., to provide access to the
internet for all of the citizens of this state.
(10) "Information equipment" includes central processing
units, front-end processing units, miniprocessors, microprocessors
and related peripheral equipment such as 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.
(11) "Information systems" mean computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by
electronic or mechanical means.
(12) "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.
(13) "Local government" means any municipality, county, metro
or regional government, or other political subdivision of the State
of West Virginia.
(14) "Person" means an individual, corporation, limited or
general partnership, joint venture, limited liability company or a
government entity, including state authorities, municipalities,
counties, police, fire and other public safety organizations,
judicial entities, medical entities, schools, colleges,
universities, hospitals, libraries, community centers and local
economic development entities. Except to the extent that state
authorities, police, fire and other public safety organizations,
judicial entities, medical entities, schools, colleges,
universities, hospitals and libraries may constitute state
entities, "person" does not include the State of West Virginia.
(15) "Public body" means a governmental entity or institution
and its employees, including, but not limited to, any department,
division, agency, bureau, board, commission, court of law in its
nonjudicial functions only, council, institution, spending unit,
authority or other instrumentality thereof of whatever description
of the State of West Virginia, or any county commission, or any
county board of education, or any incorporated municipality, metro
or regional government or any other political subdivision.
(16) "Technology infrastructure" means information systems,
information technology, information equipment and facilities,
equipment, lines and services designed for or used for the
transmission, emission or reception of signs, signals, writings,
images or sounds of intelligence of any nature by wire, radio,
microwave or other electromagnetic or optical systems, related
hardware, software and programming and specifically including, but
not limited to, all features, facilities, equipment, systems,
functions, programming and capabilities and technical support used
by:
(
A) A cable operator;
(B) A commercial mobile service carrier;
(C) An open video system operator;
(D) A satellite carrier;
(E) A telecommunications carrier;
(F) Any other wireless carrier, providing current generation
broadband services or next generation broadband services to
subscribers through such qualified equipment; or
(G) Any carrier or operator using any other technology.
(17) "Telecommuting" means not only telecommuting, but also
includes or is related to "e-commuting", "e-work", "telework" or
"working from home" through an arrangement under which the employee
enjoys limited flexibility in working location and hours and avoids
commuting to a central place of work by utilizing telecommunication
links. Telework is a broader term, referring to substituting
telecommunications for any form of work-related travel, thereby
eliminating the distance restrictions of teleworking. A
telecommuting program requires a management style which is based on
results and not on close scrutiny of individual employees.
(18) "Telemedicine" means the use of telecommunications
technology to facilitate and broaden the application of the
practice of medicine, thus enabling health care providers to
deliver health care services from a distance, including, but not
limited to, diagnosis, consultation, treatment, transfer of medical
data, use of remote medical instruments and equipment and generally
establishing a convenient means of delivering medical services to
patients for whom such services might otherwise be unavailable. In
addition to clinical applications, telemedicine also includes web-
based information and communications technology that can provide
education (including continuing education programs) and reduce the
administrative costs of health care providers.
§5B-4-3. Legislative findings generally.
The Legislature finds as follows:
(1) It is a primary goal of this state, by the year two thousand ten, to make every municipality, community and rural area
in this state, border to border, accessible to the internet,
through the expansion and extension of broadband services and
technology.
(2) An increased availability of broadband through an advanced
technology infrastructure will allow more West Virginians to
connect with the "information super-highway" of the internet at
high speeds. With current technology infrastructure, West Virginia
can feasibly take action to assure that all of its citizens will
have access to broadband services through cable television or
telephone networks that support two-way communications using cable
modems or telephone lines and also by utilizing wireless mobile
technologies, satellite transmissions and other means of
communication. Ultimately, other means of achieving higher speed
connections will be conceived, evolved and made available for use
as conduits for the transmission and diffusion of data, information
and knowledge. West Virginia must be positioned to be on the edge
of each such development.
(3) Access to broadband services and the accompanying
applications of broadband technology will provide the State of West
Virginia with the capacity to foster or support new economic and
social opportunities and developments locally, regionally,
nationally and internationally.
(4) In achieving this primary goal of maximizing internet
accessibility, particular concerns of the Legislature and the
executive branch of government should be concentrated on and directed toward those of our citizens who are located in rural
areas of the state where access appears to be geographically or
physically difficult or economically impracticable. An idealized
achievement of this primary goal would equalize internet
availability to all of our citizens and communities, give them
access to the internet regardless of their location, provide them
with the knowledge, information and technology available on the
internet and expose them to a myriad of other broadband digital
applications and services with their attendant benefits.
(5) The development of broadband and its diffusion to
residential subscribers is still in the early stages and the market
is far from mature. The expansion of broadband into unserved areas
of the state requires capital investments for financing, for
building the appropriate technology infrastructure and for
providing the services and applications that can carry high speed
data, quality video and voice traffic. Deployment costs are high,
particularly in remote and scarcely populated areas. In these
circumstances, private operators often do not offer broadband
because it is not perceived as profitable to do so. This presents
a territorial gap in broadband coverage, with urban households and
businesses having ready options and access to broadband while rural
population areas may have no options for access.
(6) The primary goal of subdivision (1) of this section may be
achieved by the legislative and executive branches of state
government by:
(A) Aggressively expanding and extending broadband and other telecommunications services;
(B) Creating incentives for private and nonprofit entities to
establish broadband and other telecommunications services;
(C) Undertaking telecommunications planning at the local,
regional and state levels and requiring that in such planning, that
the participants shall include: (i) Citizens and organizations
representing and speaking on behalf of the public; (ii) officers
of, or spokesmen for, any involved or affected governmental body;
and (iii) representatives of various private sectors, including,
but not limited to, representatives of industry and commerce,
health care and education and research;
(D) Removing barriers to the full deployment of broadband
digital applications and services and providing incentives for the
removal of those barriers; and
(E) Removing barriers to public-private partnerships in areas
of the state where business entities in the private sector are
unable to economically justify capital investments in the
technology infrastructure.
(7) There is little doubt that rapid growth of the internet is
increasingly altering and driving our country in terms of commerce,
learning, medicine and other fields so that information technology
offers increased economic opportunities, higher living standards,
increased health, better education, more individual choices and
wider and more meaningful participation in government and public
life. The past decade has brought considerable advancement in
telecommunications and the way people communicate worldwide. Accordingly, telecommunications in general, and the internet in
particular, are becoming increasingly important to the efficient
and effective operation of both private and public sector entities.
With the advent of the internet and its applications to e-business,
e-commerce, e-government, telemedicine, e-learning, telecommuting
and media and entertainment, the ability of people in all parts of
this state to access the internet has become an important component
in the ability of the state and its people and institutions to
remain competitive in the information-based global economy.
(8) At the same time, however, progress by market forces and
industry should be respected and governmental assistance and
funding should be focused on areas and persons remaining unserved
and not displace accessible and generally competitively priced
broadband services in areas already served or where industry is
expected to offer accessible and generally competitively priced
broadband services by the end of the next following calendar year.
§5B-4-4. Legislative findings related to business, commerce and
industry.
With regard to the projected impact of internet access on
business, commerce and industry, the Legislature finds that there
is a need to create and develop a foundation and structure for "e-
business" or "electronic business" and for "e-commerce" or
"electronic commerce" as defined in section two of this article.
(1) That a private nonprofit facilitator, in partnership with
government and private enterprise, will best enable the
implementation of a legislative plan to expand and extend the boundaries of technology-based business and enhance West Virginia's
future workforce;
(2) That a broadband alliance formed by a nonprofit
facilitator and other entities should be focused on building and
sustaining a vital West Virginia economy through job creation and
improved business processes, technology, education and advocacy;
(3) That a significant part of the mission of a nonprofit
facilitator is to promote technology-based economic development for
the state by fostering collaboration among the leadership of public
and private companies, government agencies and institutions of
higher education and that by working with these entities the
private nonprofit facilitator will enable the State of West
Virginia to create more effective manufacturing processes, improve
communications, increase efficiency, expand market opportunities
and develop corporate growth strategies;
(4) That our modern economy is driven by processes and goods
with high technical content and superiority, competitiveness and
progress and such an economy relies upon a highly trained technical
workforce;
(5) That the citizens of West Virginia now live and work in
the midst of an economic and cultural environment that connects the
world through advanced communications and information technology
and, accordingly, progressive policies and the innovative use of
technology present the State of West Virginia with an opportunity
to thrive in this new environment;
(6) That in order to compete and thrive, West Virginia must proactively improve the ability of its citizens and businesses to
adopt and use advantageous resources; and
(7) That the use of computers, the internet and related
technologies advance the development of the skills that fuel a
progressive economy and, increasingly, companies will choose
locations and hire workers based upon the availability of workers
who possess technologically centric skills and resources.
§5B-4-5. Legislative findings related to access to government.
(a) The Legislature finds that access to government
information is fundamental to our democratic society. Streamlining
state and local government processes through internet-based tools
has proven to be a highly effective and cost-efficient way to
improve services.
(b) E-government can:
(1) Permit the resources, services and nonsecure information
of an agency of government to be promptly and easily electronically
accessed by other governmental entities or by constituents of
government, thus allowing those governmental bodies and their
constituents to efficiently and economically interact;
(2) Facilitate communications and transactions between state
and local government bodies with vendors or contractors who provide
goods or services to governmental entities or to private programs
funded by public moneys;
(3) Ensure that West Virginia's governmental officers and
employees who deal directly with the public, wherever located in
the state, have access to high-speed internet connectivity so that their electronic access will, for example, speed up license
renewals, provide online employment information and improve overall
service levels.
(c) As state and local governments provide an increasing
number of services online, the ability to access them through a
faster connection becomes paramount. Government, in partnership
with an alliance of a private nonprofit facilitator and other
entities, must take the lead in developing e-government solutions,
in reducing administrative costs and in increasing access to
services and the demand for broadband internet applications. As a
technology-based resource in those situations where private
investment in infrastructure is not available, a public-private
partnership with a facilitator can keep government officials
apprised of policy issues and build citizen participation through
the development of new applications, emergency preparedness
information, employment opportunities and links to other valuable
governmental resources.
§5B-4-6. Legislative findings related to health care or
"telemedicine".
The Legislature finds as follows:
(1) New technologies are enabling doctors to view and send
medical images from any location with access to broadband services
securely and quickly.
(2) Broadband access can reduce the disadvantages of physical
remoteness from cities, connecting rural health care providers with
potentially life-saving information. In addition, consumers can use the internet to search for health care information that was
previously only available by visiting their health care provider.
(3) The cost for health care providers to offer services
steadily increases, while the amount of revenue remains flat or
even decreases. As hospitals and physicians look for ways to lower
costs, broadband applications provide efficiencies and cost-saving
opportunities. Broadband connectivity can improve the quality of
services and profits for health care providers where reliability
is essential, speed is important and cost is a defining factor.
High-bandwidth connections enhance the dependability of web-based
mission-critical applications, reducing some of the cost and burden
of providing care. Ultimately, improved service levels are the key
to quality of life for both patients and physicians.
§5B-4-7. Legislative findings related to e-learning.
The Legislature finds as follows:
(1) State, business and education leaders use information
obtained through broadband communications in the design of their
plans for enhancing West Virginia's competitiveness in the
networked world.
(2) Access to information technology in West Virginia will
enhance the state's competitiveness in the networked world by
creating a better understanding of the existing technological
infrastructure, the availability of access to that infrastructure
and how it is being used today.
(3) Education leaders recognize the important role information
technology and broadband technologies will play in the long-term success of the state's economy. Through the adoption of new
technologies, education resources can be made available to our
citizens, even in the most rural parts of West Virginia.
§5B-4-8. Legislative findings related to early childhood
development.
The Legislature finds as follows:
(1) Developing and utilizing broadband applications that will
allow internet users to interact with educational programs
(e-learning) and to connect with other online databases, such as
e-commerce and telemedicine, will require capital investments and
the commitment of other resources, both public and private, in
these new and evolving information and communication technologies.
(2) Establishing a broadband connection at a local school
will enable students to gain access, in the classroom, to the
knowledge and resources available on the internet, and through high
speed cable, D.L., wireless or other means, will enable students
access outside of the classroom. Broadband infrastructure will
enable a school to provide interactive programs that project
information and training related to early childhood development
directly into the homes and families of children from birth to age
eight in the school's community.
(3) Mandating that the availability of broadband access is a
public or private service for all communities and rural areas in
this state requires recognition that the ongoing financial support
and resources of governmental and private entities must include the
costs of providing such access within their support and funding for education, social services, administration and other services.
(4) As efforts to continue developing and providing broadband
infrastructure, information technologies and appropriate
applications of technologies impact the area of early childhood
development, this article should be implemented in cooperation and
partnership among the Department of Commerce, the Department of
Education and the Department of Health and Human Resources.
§5B-4-9. Technology infrastructure needs assessment, inventory and
mapping; agency and local government cooperation;
information gathering; reporting requirements; rule-
making authority; and provision of broadband technology
to families with children from birth to age eight.
(a) The state encourages the coordinated deployment and
operation of technology infrastructure for present and future use.
Therefore, it is necessary for the state to maintain an ongoing,
continually updated record of the nature and extent of its
technology infrastructure comprised of information systems,
information equipment and information technology, the demands on
its technology infrastructure and those governmental entities which
use or desire to use the resources of the technology infrastructure
providing information services, cable service, advanced services,
broadband services, internet, internet protocol enabled services,
telecommunications services or similar services or support.
(b) The Secretary of the Department of Administration shall
develop systems and processes for maintaining accurate information
on the state of the technology infrastructure in the state on an ongoing basis and conduct an infrastructure resources survey of the
deployment and operation of technology infrastructure in this
state. The secretary shall determine the form and format of the
information submitted, and the availability of the results of
inventory and mapping, including the use of electronic submissions.
(c) To facilitate the infrastructure resources survey, the
Secretary of the Department of Administration shall propose
emergency and legislative rules in accordance with article three,
chapter twenty-nine-a of this code. These rules may include:
(1) The manner of reporting the technology infrastructure
information;
(2) Promulgation of a form or forms for reporting purposes;
(3) A means of providing training to individuals responsible
for the completion and submission of the information on the
proposed form;
(4) A means of reporting back to individual participating
public bodies, from time to time, at the request of a public body,
on findings specific to that body to allow the public body to
evaluate independently the information provided;
(5) A limitation that the information is to be used solely for
the purposes of this article;
(6) Safeguards to protect the confidential information as
provided in section ten of this article;
(7) Methodology for collection of information and the analysis
of the information;
(8) Protocols for an annual update of the infrastructure resources survey including information collection, analysis and
reporting thereof by the Department of Administration; and
(9) A policy
to encourage businesses and to require state and
local government agencies to report to the Chief Technology Officer
on donations of information technology to educational facilities,
nonprofit organizations and members of the public, including
without limitation, a description of each item donated and
identification of the recipient.
(d) Every public body
shall complete an infrastructure
resources survey no later than the first day of October, two
thousand seven,
and a survey each year thereafter as provided in
rules promulgated pursuant to this section.
(e) The secretary shall file annually a report with the Joint
Legislative Oversight Commission on Transportation and
Infrastructure created in section eleven of this article. The
report shall generally advise the Joint Legislative Oversight
Commission on Transportation and Infrastructure about the
deployment and operation of technology infrastructure in this state
and to make recommendations on policy and statutory changes that
may be needed
. The report shall include a discussion of each the
following:
(1) The connectivity, priorities and interoperability of the
technology infrastructure owned, leased or used by public bodies;
(2) The technology infrastructure that is owned, leased,
operated or used by the public bodies of the state;
(3) Technology infrastructure as it affects homeland security, public safety and health, systems reliability and providing
continuity of government operations;
(4) Technology infrastructure
identifying potential market
demand areas where expanded resources may be expected;
(5) Practices or suggestions to coordinate the development of
technology infrastructure and the deployment of services between
the public bodies through the coordinated delivery of these
systems; and
(6) Any other topic that may be beneficial in adequately
assessing technology infrastructure.
(f) To the extent technology infrastructure information is
readily provided by private persons or otherwise available, the
secretary shall utilize and incorporate that data to fulfill the
reporting requirements of this section.
(g) Not later than the first day of December, two thousand
seven, the Governor's Chief Technology Officer within the
Department of Administration shall submit a report to the
Legislature that:
(1) Assesses the availability of, and access to, broadband
technology in homes and families with children from birth to age
eight;
(2) Estimates the number of families with children from birth
to age eight who are using broadband technology in their homes;
(3) Estimates the unmet demand for broadband technology for
families with children from birth to age eight; and
(4) Sets forth a strategic plan to meet the demand described in subdivision (3) of this subsection.
§5B-4-10. Confidential information; exemption from disclosure.
(a) Information submitted by a public body as part of the
survey that may be a trade secret or otherwise confidential shall
be identified by that body as confidential information. The public
body claiming confidentiality shall provide written justification
to the secretary at the time the information is submitted stating
the reasons for confidentiality and why the information should not
be released.
(b) In addition to records or documents that may be considered
confidential under this code, confidential information means
records, reports or information, or a particular portion or any
combination or aggregation thereof, that if made public would
present a threat to the safety and security of any system or
component relating to the technology infrastructure and related
systems.
(c) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the public body. The confidential
information will be exempt from disclosure requirements under this
code.
(d) Information designated as confidential may be released to
the Department of Administration, its employees and agents when
compiling and analyzing the infrastructure resources survey
information and as may be necessary to develop the report required
by this article. Any individual receiving information designated confidential shall protect the information as confidential.
(e) Trade secrets or proprietary information obtained by the
Governor's Chief Technology Officer from broadband providers and
other persons or entities through activities related to surveying
and mapping broadband access in West Virginia shall be secured and
safeguarded by the state. Such information or data shall not be
disclosed to the public or to any firm, individual or agency other
than officials or authorized employees of this state. Any person
who makes any unauthorized disclosure of such confidential
information or data is guilty of a misdemeanor and, upon conviction
thereof, may be fined not more than five thousand dollars or
confined in a correctional facility for not more than one year, or
both.
(f) The official charged with securing and safeguarding trade
secrets and proprietary data is the Governor's Chief Technology
Officer, within the Department of Administration, who is authorized
to establish and direct appropriate security measures. The
Governor shall designate two additional persons to share the
responsibility of securing trade secrets or proprietary
information. No one will be allowed access without written
approval of a minimum of two of the three authorized persons
specified above.
§5B-4-11. Joint Legislative Oversight Commission on Transportation
and Infrastructure; examination and subpoena powers;
contempt proceedings; legislative reports.
(a) The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of transportation and
infrastructure matters, specifically including, but not limited to,
the ongoing oversight of the management and coordination of the
deployment and operation of infrastructure related to technology.
This commission shall be known as the Joint Legislative Oversight
Commission on Transportation and Infrastructure.
(b) The Joint Legislative Oversight Commission on
Transportation and Infrastructure may:
(1) Make a continuing investigation, study and review of the
practices, policies and procedures utilized to expand broadband
infrastructure in this state;
(2) Make a continuing investigation, study and review of all
matters related to broadband policy in the state;
(3) Review program development by the various agencies of
state government if those programs impact access to broadband
internet;
(4) Conduct studies on:
(A) The amount of funds expended by state government and by
public and private entities in this state for broadband services to
persons who are unable to pay for those services;
(B) The extent to which persons in this state forego broadband
access because of insufficient income and assets to pay for
broadband services;
(C) The extent to which the state is maximizing available
federal programs and moneys in providing and expanding broadband
services to the citizens of this state;
(D) The operation of the programs and funds created by this
article; and
(E) The roles of the public, private and private nonprofit
sectors in providing broadband services and access to the citizens
of this state;
(5) Review and study the feasibility and financial impact upon
the state of assuring increased access by school children to
broadband in their homes, families and other nonschool settings, if
available; and
(6) Conduct a study on the effects of extending broadband
infrastructure into rural areas, including effects on the quality,
cost and availability of broadband services.
(c) For purposes of carrying out its duties, the commission
may examine witnesses and subpoena such persons and books, records,
documents, papers or any other tangible things as it believes
should be examined to make a complete investigation.
(d) All witnesses appearing before the commission under
subpoena shall testify under oath or affirmation. Any member of
the commission may administer oaths or affirmations to such
witnesses.
(e) To compel the attendance of witnesses at such hearings or
the production of any books, records, documents, papers or any
other tangible thing, the commission may issue subpoenas, signed by one of the cochairpersons, in accordance with section five, article
one, chapter four of this code. Subpoenas may be served by any
person authorized by law to serve and execute legal process and
service shall be made without charge. Witnesses subpoenaed to
attend hearings shall be allowed the same mileage and per diem as
is allowed witnesses before any petit jury in this state.
(f) If any person subpoenaed to appear at any hearing refuses
to appear or to answer inquiries there propounded, or fails or
refuses to produce books, records, documents, papers or any other
tangible thing within his control when demanded, the commission
shall report the facts to the circuit court of Kanawha County or
any other court of competent jurisdiction and the court may compel
obedience to the subpoena as though such subpoena had been issued
by the court in the first instance.
(g) The commission shall submit annual reports to the
Legislature, which describe and evaluate in a concise manner:
(1) The major activities of agencies of state government and
public and private entities involved in expanding the
infrastructure of, and access to broadband for the fiscal year
immediately past, including important policy decisions reached on
initiatives undertaken during that year, especially as such
activities, decisions and initiatives relate to:
(A) Improving the accessibility of appropriate broadband
services in all areas of this state;
(B) Improving the ability of the citizens of this state to
reasonable afford broadband services.
(2) Other information considered by the commission to be
important, including recommendations for statutory, fiscal or
policy reforms and reasons for such recommendations.
(h) The reports may specify in what manner any practice,
policy or procedure may or should be modified to satisfy the goal
of efficient and effective access to broadband services as they
become increasingly available in this state.
§5B-4-12. Powers and duties of the Secretary of Commerce
.
(a) The primary responsibility of the secretary is to foster
and support economic development and the advancement and
commercialization of new and emerging technologies through
collaborative agreements between business, industry and the state.
(b) The secretary may provide consulting and additional
services, including, but not limited to, evaluation of technology,
verification and assessment of market applications, grant
administration for any person engaged in public-private
collaborations with the department pertaining to technology
advancement and commercialization activities and research into new
areas of economic development relating to technology, technology
infrastructure and telecommunications.
(c)
The secretary may receive and accept from any public body
or person or entity of any nature whatsoever grants to be expended
in accomplishing the objectives of this article and to receive and
accept state appropriations and grants from any public body and
from any other source, aid or contributions of either money,
property or other things of value to be held, used and applied only for the purposes for which the grants and contributions may be made
or collect fees for consulting services rendered to any public
body.
(d) The secretary may accept and expend any gift, grant,
contribution, bequest, endowment or other money for the purposes of
this article and to make a maximum effort to encourage external
support for programs intended to expand broadband infrastructure
into areas of the state not currently served. Any transfer of
endowment or other assets to the department shall be formalized in
a memorandum of agreement to assure, at a minimum, that any
restrictions governing the future disposition of funds are
preserved.
(e) The Department of Commerce shall cooperate with the
Department of Education and the Department of Health and Human
Resources
to coordinate state resources as they relate to the
expansion of broadband technology so as
to provide interactive
programs that project information and training related to early
childhood development directly into the homes and families of
children from birth to age eight.
(f) The Secretary of Commerce may promulgate rules to fulfill
the purposes of this section.
These rules are not subject to the
provisions of chapter twenty-nine-a of this code, but shall be
filed with the Secretary of State.
§5B-4-13. Need for study; reporting requirements; information
gathering.
(a) The Secretary of Commerce shall enhance well-being, prosperity, economic growth and community development through the
ongoing study and research into and development of best known
methods regarding the management practices, human factors and
cultural changes related to the implementation, operation and
utilization of technology, technology infrastructure and related
services. For the purposes of this section, "best known methods"
refers to plans that outline strategies and activities designed to
continue, diversify or expand the economic base of the state as a
whole; create jobs; develop a highly capable workforce; enhance
productivity; facilitate business access to capital, including
venture capital and capital markets; advertise and market the
resources offered by the state with respect to the technology needs
of business and industry; facilitate cooperation among state
government, entrepreneurship efforts, public private partnerships,
universities and colleges; and leverage funding from sources other
than the state, including federal and private sources.
(b)
In developing its study, the department shall consider
resources and technical support available through other agencies,
both public and private, including, but not limited to, the state
college and university systems; the West Virginia Housing
Development Fund; the Consumer Advocates Office of the Public
Service Commission; the West Virginia Economic Development
Authority; the West Virginia Parkways, Economic Development and
Tourism Authority; the West Virginia Chamber of Commerce; regional
planning and development councils; and state appropriations.
The
Infrastructure and Jobs Development Council, as created by the provisions of section three, article fifteen-a, chapter thirty-one
of this code, is also included with the above-named agencies and
entities, inasmuch as the broadband infrastructure project or
projects to be undertaken under the provisions of this article are
within the definition of the term "infrastructure project"
as it is
defined in section two, article fifteen-a, chapter thirty-one of
this code.
(c)
Upon completion of a study of best known methods in
private industry and public policy, the secretary shall file an
initial preliminary report with the Joint Legislative Oversight
Commission on Transportation and Infrastructure created in this
article no later than the first day of November, two thousand
seven. The report shall include consideration of the following:
(1) Strategies
and activities designed to continue, diversify
or expand the resources offered by the state with respect to the
technology needs of the state;
(2) Strategies to facilitate cooperation among state
government, local government, entrepreneurship efforts, public-
private partnerships and colleges and universities, with respect to
the technology needs of business and industry;
(3) Management and utilization of technology infrastructure
identifying potential growth areas where expanded resources may be
expected;
(4) Practices or methods to coordinate development and
utilization of technology infrastructure and the deployment of
technology infrastructure and related technology between public bodies through the coordinated delivery of these systems; and
(5) Any other information that may be beneficial in adequately
assessing technology available in determining the need for and the
preparation of technology infrastructure plans.
(d) The secretary shall report annually to the Joint
Legislative Oversight Commission on Transportation and
Infrastructure to advise the commission about the deployment and
operation of technology infrastructure in this state and to make
recommendations on policy and statutory changes that may be needed.
§5B-4-14. Providing technical and funding assistance to develop
technology infrastructure; contractual and joint
venture agreements.
(a) The Department of Commerce may:
(1) Provide assistance, including funding assistance to
develop technology infrastructure, and related technology through
a matching grant program. The department shall establish criteria
for awarding matching grants within the limits of funds
appropriated by the Legislature for the program or as may be
available from other sources;
(2) Provide technical assistance, including consulting
services for a fee to one or more public bodies pertaining to the
development of technology and technology infrastructure; and
(3) Enter into contractual or joint venture agreements with
one or more persons and public bodies pertaining to the development
of technology and technology infrastructure: Provided, That such
agreements may not be considered a debt of the state or a pledge of the credit of the state.
(b) The powers and authority granted by this article, however,
must be focused on technical and funding assistance in those areas
remaining unserved and not displace accessible and generally
competitively priced broadband services or where industry is
expected to offer accessible and generally competitively priced
broadband services by the end of the next following calendar year.
§5B-4-15. Complete authority of article; liberal construction.
This article is full and complete authority for carrying out
the powers and duties of the same as herein provided. The
provisions of this article shall be liberally construed to
accomplish its purpose and no procedure or proceedings, notices,
consents or approvals, are required in connection therewith except
as may be prescribed by this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 748--A Bill to amend the Code of West
Virginia, 1931, as amended,
by adding thereto a new article,
designated §5B-4-1, §5B-4-2, §5B-4-3, §5B-4-4, §5B-4-5, §5B-4-6,
§5B-4-7, §5B-4-8, §5B-4-9, §5B-4-10, §5B-4-11, §5B-4-12, §5B-4-13,
§5B-4-14 and §5B-4-15
,
all relating to expanding technology
infrastructure to provide broadband internet access throughout the
state of West Virginia;
creating the Electronic Telecommunication
Open Infrastructure Act (ETOPIA); providing definitions
for terms
used in the article
;
setting forth legislative findings;
requiring an inventory and mapping of the current availability of access to
broadband communications in this state; developing coordinated
deployment and operation of technology infrastructure within this
state; providing for technology infrastructure inventory, local
government cooperation and inventory survey reporting requirements;
authorizing emergency and legislative rules; prescribing the
authority of the Secretary of Department of Administration;
describing specific authorized disclosures of confidential
information; creating Joint Legislative Oversight Commission on
Transportation and Infrastructure; providing subpoena powers;
providing for enforcement of subpoena power through a court of
competent jurisdiction; prescribing the powers and duties of the
Secretary of Commerce; establishing reporting requirements;
authorizing secretary to provide technical and funding assistance
to develop technology infrastructure; authorizing secretary to
engage in consulting services for fee; authorizing contractual and
joint venture agreements; providing for the liberal construction of
article; utilizing broadband infrastructure, technology and
information to enhance early childhood development; providing for
the confidentiality of trade secrets and proprietary information;
and providing for criminal penalties for unlawful disclosure of
confidential information or data.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 748, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 748) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 748) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment to
the Senate amendments, as to
Eng. House Bill No. 2770, Enhancing penalties for certain acts
against court security personnel.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. House Bill No. 2770--
A Bill to amend and reenact §61-2-
10b of the Code of West Virginia, 1931, as amended, relating to
court security personnel and Public Service Commission motor
carrier inspector and enforcement officer;
enhancing penalties for
certain acts against court security personnel and Public Service
Commission motor carrier inspector and enforcement officer;
defining "court security personnel" and "Public Service Commission
motor carrier inspector and enforcement officer"; and incorporating
certain acts previously enacted by the Legislature during the 2007
regular session.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed House Bill No. 2770, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2770) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2804, Eliminating time
schedules for utility relocation on highway projects.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments
to the bill.
Engrossed Committee Substitute for House Bill No. 2804, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2804) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 697, Creating Appalachian
Region Interstate Compact.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting clause and
inserting in lieu thereof the following:
That §7-12-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §7-24-1, all to read as follows:
ARTICLE 12. COUNTY AND MUNICIPAL DEVELOPMENT AUTHORITIES.
§7-12-7. Powers generally.
(a) The development authority is hereby given power and
authority as follows: (1) To make and adopt all necessary bylaws
and rules for its organization and operations not inconsistent with
laws; (2) to elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operation; (3) to enter into contracts with any person, agency,
governmental department, firm or corporation, including both public
and private corporations, and generally to do any and all things
necessary or convenient for the purpose of promoting, developing
and advancing the business prosperity and economic welfare of the
county in which it is intended to operate, its citizens and
industrial complex, including, without limiting any of the
foregoing, the construction of any building or structure for lease
to the federal government or any of its agencies or departments,
and in connection therewith to prepare and submit bids and
negotiate with the federal government or such agencies or
departments in accordance with plans and specifications and in the
manner and on the terms and conditions and subject to any
requirements, regulations, rules and laws of the United States of
America for the construction of said buildings or structures and
the leasing thereof to the federal government or such agencies or
departments; (4) to amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon
such terms and conditions, for such consideration and for such term
of duration, with or without option of renewal, as may be agreed
upon by the authority and such person, agency, governmental
department, firm or corporation; (5) unless otherwise provided for
in, and subject to the provisions of, such contracts, or leases, to
operate, repair, manage and maintain such buildings and structures
and provide adequate insurance of all types, and in connection with
the primary use thereof and incidental thereto to provide such
services, such as barber shops, newsstands, drugstores and
restaurants, and to effectuate such incidental purposes, grant
leases, permits, concessions or other authorizations to any person
or persons, upon such terms and conditions, for such consideration
and for such term of duration as may be agreed upon by the
authority and such person, agency, governmental department, firm or
corporation; (6) to delegate any authority given to it by law to
any of its officers, committees, agents or employees; (7) to apply
for, receive and use grants-in-aid, donations and contributions
from any source or sources and to accept and use bequests, devises,
gifts and donations from any person, firm or corporation; (8) to
acquire real property by gift, purchase or construction, or in any
other lawful manner, and hold title thereto in its own name and to
sell, lease or otherwise dispose of all or part of such real
property which it may own, either by contract or at public auction,
upon the approval by the board of directors of the development
authority; (9) to purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of any personal property which it
may own, either by contract or at public auction; (10) pursuant to
a determination by the board that there exists a continuing need
for programs to alleviate and prevent unemployment within the
county in which the authority is intended to operate or aid in the
rehabilitation of areas in said county which are underdeveloped,
decaying or otherwise economically depressed, and that moneys or
funds of the authority are necessary therefor, to borrow money and
execute and deliver the authority's negotiable notes, mortgage
bonds, other bonds, debentures and other evidences of indebtedness
therefor, on such terms as the authority shall determine, and give
such security therefor as shall be requisite, including giving a
mortgage or deed of trust on its real or personal property and
facilities in connection with the issuance of mortgage bonds; (11)
to raise funds by the issuance and sale of revenue bonds in the
manner provided by the applicable provisions of article sixteen,
chapter eight of this code, it being hereby expressly provided that
a development authority created under this article is a "governing
body" within the definition of that term as used in article
sixteen, chapter eight of this code; and (12) to expend its funds
in the execution of the powers and authority herein given, which
expenditures, by the means authorized herein, are hereby determined
and declared as a matter of legislative finding to be for a public
purpose and use, in the public interest, and for the general
welfare of the people of West Virginia, to alleviate and prevent
economic deterioration and to relieve the existing critical condition of unemployment existing within the state.
(b) The amendment of this section enacted in the year one
thousand nine hundred ninety-eight is intended to clarify the
intent of the Legislature as to the manner in which an authority
may sell, lease or otherwise dispose of real and personal property
owned by an authority and shall be retroactive to the date of the
prior enactment of this section.
(c) Notwithstanding any provision of this code to the
contrary, any development authority participating in the
Appalachian Region Interstate Compact pursuant to chapter seven-a
of this code may agree to a revenue and economic growth-sharing
arrangement with respect to tax revenues and other income and
revenues generated by any facility owned by an authority. Any
development authority or member locality may be located in any
jurisdiction participating in the Appalachian Region Interstate
Compact or a similar agreement for interstate cooperation for
economic and workforce development authorized by law. The
obligations of the parties to any such agreement shall not be debt
within the meaning of section eight, article X of the Constitution
of West Virginia. Any such agreement shall be approved by a
majority vote of the governing bodies of the member localities
reaching such an agreement but does not require any other approval.
(d) "Member localities" means the counties, municipalities or
combination thereof which are members of an authority.
ARTICLE 24. APPALACHIAN REGION INTERSTATE COMPACT.
§7-24-1. Appalachian Region Interstate Compact; form of compact.
The Appalachian Region Interstate Compact (the compact) is
hereby created and entered into with all other jurisdictions
legally joining therein in the form substantially as follows:
Article I. Short Title.
This act shall be known and may be cited as the Appalachian
Region Interstate Compact.
Article II. Compact Established.
Pursuant to section ten, article I of the Constitution of the
United States, the signatories hereby provide a mechanism for the
creation of one or more authorities for the purpose of developing
one or more facilities to enhance the regional economy that shall
constitute instrumentalities of the signatories. For purposes of
this chapter, "Appalachian Region" means the areas included in
"region" as defined in §403 of the Appalachian Regional Development
Act of 1965, as amended (40 U. S. C. §14102 (a)(1)).
Article III. Agreement.
The State of West Virginia may enter into agreement with one
or more signatory states and, upon adoption of this compact, agree
as follows:
1. To study, develop and promote a plan for the design,
construction, financing and operation of interstate facilities of
strategic interest to the signatory states;
2. To coordinate efforts to establish a common legal framework
in all the signatory states to authorize and facilitate design,
construction, financing and operation of such facilities either as
publicly operated facilities or through other structures authorized by law;
3. To advocate for federal and other public and private
funding to support the establishment of interstate facilities of
interest to all signatory states;
4. To make available to such interstate facilities funding and
resources that are or may be appropriated and allocated for that
purpose; and
5. To do all things necessary or convenient to facilitate and
coordinate the economic and workforce development plans and
programs of the State of West Virginia and the other signatory
states to the extent such plans and programs are not inconsistent
with federal law and the laws of the State of West Virginia or
other signatory states.
Article IV. Compact Commission Established;
Membership; Chairman; Meetings; and Report.
Each signatory state to the compact shall establish a compact
commission. In West Virginia, the Appalachian Region Interstate
Compact Commission (the commission) shall be established as a
regional instrumentality and agency of the State of West Virginia
and the signatory states. The compact commissions of the signatory
states shall be empowered to carry out the purposes of their
respective compacts.
The Appalachian Region Interstate Compact Commission shall
consist of six members from each of the other signatory states to
be appointed pursuant to the laws of the signatory states and six
members of the West Virginia delegation to the commission to be appointed as follows: Three members to be appointed by the
President of the Senate and three members to be appointed by the
Speaker of the House of Delegates. Members of the West Virginia
delegation to the compact commission shall serve terms coincident
with their terms of office if an elected state or local
representative, and may be reappointed. Members who are not
elected officials shall serve a term of four years and may be
reappointed. The chairman of the commission shall be elected by
the members of the commission from among its membership. The
chairman shall serve for a term of two years and the chairmanship
shall rotate among the signatory states.
The commission shall meet not less than twice annually;
however, the commission shall not meet more than once consecutively
in the same state.
Article V. Powers and Duties of the Commission.
The commission is vested with the powers of a body corporate,
including the power to sue and be sued in its own name, plead and
be impleaded and adopt and use a common seal and alter the same as
may be deemed expedient. In addition to the powers set forth
elsewhere in this chapter, the commission may:
1. Adopt bylaws, rules and regulations to carry out the
provisions of this chapter;
2. Employ, either as regular employees or as independent
contractors, consultants, engineers, architects, accountants,
attorneys, financial experts, construction experts and personnel,
superintendents, managers and other professional personnel, personnel and agents as may be necessary in the judgment of the
commission and fix their compensation;
3. Determine the locations of, develop, establish, construct,
erect, repair, remodel, add to, extend, improve, equip, operate,
regulate and maintain facilities to the extent necessary or
convenient to accomplish the purposes of the compact;
4. Acquire, own, hold, lease, use, sell, encumber, transfer,
or dispose of, in its own name, any real or personal property or
interests therein;
5. Invest and reinvest funds of the commission;
6. Enter into contracts of any kind and execute all
instruments necessary or convenient with respect to its carrying
out the powers in this chapter to accomplish the purposes of the
compact;
7. Expend such funds as may be available to it for the purpose
of developing facilities, including, but not limited to: (i)
Purchasing real estate; (ii) grading sites; (iii) improving,
replacing and extending water, sewer, natural gas, electrical and
other utility lines; (iv) constructing, rehabilitating and
expanding buildings; (v) constructing parking facilities; (vi)
constructing access roads, streets and rail lines; (vii) purchasing
or leasing machinery and tools; and (viii) making any other
improvements deemed necessary by the commission to meet its
objectives;
8. Fix and revise, from time to time, and charge and collect
rates, rents, fees or other charges for the use of facilities or for services rendered in connection with the facilities in
accordance with applicable state and federal laws and as approved
by the commission;
9. Borrow money from any source for any valid purpose,
including working capital for its operations, reserve funds or
interest; mortgage, pledge or otherwise encumber the property or
funds of the commission; and contract with or engage the services
of any person in connection with any financing, including financial
institutions, issuers of letters of credit or insurers;
10. Issue bonds the principal and interest on which are
payable exclusively from the revenues and receipts of a specific
facility in accordance with applicable laws;
11. Accept funds and property from the state and other
signatory jurisdictions, persons, counties, cities and towns and
use the same for any of the purposes for which the commission is
created;
12. Apply for and accept grants or loans of money or other
property from any federal agency for any of the purposes authorized
in this chapter and expend or use the same in accordance with the
directions and requirements attached thereto or imposed thereon by
any such federal agency;
13. Make loans or grants to, and enter into cooperative
arrangements with, any person, partnership, association,
corporation, business or governmental entity in furtherance of the
purposes of this chapter for the purposes of promoting economic and
workforce development, provided that such loans or grants shall be made only from revenues of the commission that have not been
pledged or assigned for the payment of any of the commission's
bonds, and to enter into such contracts, instruments, and
agreements as may be expedient to provide for such loans, and any
security therefor. The word "revenues" as used in this subdivision
includes grants, loans, funds and property, as set out in
subdivisions (11) and (12) of this article;
14. Enter into agreements with political subdivisions of the
state for joint or cooperative action;
15. Exercise any additional powers granted to it by subsequent
legislation; and
16. Do all things necessary or convenient to carry out the
purposes of this chapter.
Article VI. Funding and Compensation.
The commission may utilize for its operation and expenses: (i)
Funds that may be generated by borrowing, gifts and grants; (ii)
funds appropriated to it for such purposes by the West Virginia
Legislature and the legislatures of the other signatory states,
(iii) federal funds; and (iv) revenues collected for the use of any
facility approved by the commission.
Members of the West Virginia delegation to the commission
shall not receive compensation but shall be reimbursed for
reasonable and necessary expenses incurred in the performance of
their duties to the commission. All such expenses shall be paid
from existing appropriations, gifts, grants, federal funds or other
revenues collected for the use of any facility approved by the commission. Members of the commission representing other signatory
states shall receive compensation and reimbursement of expenses
incurred in the performance of their duties to the commission in
accordance with the applicable laws of the respective signatory
states.
The provisions of this act shall become effective upon the
enactment of the Appalachian Region Interstate Compact as
authorized by this article and upon the enactment of this compact
by at least one other state in accordance with its terms and
federal law.
;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 697--A Bill to amend and
reenact §7-12-7 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new article, designated §7-
24-1, all relating to the Appalachian Region Interstate Compact;
authorizing revenue sharing agreements between development
authorities or similar authorities outside the state; providing
that certain obligations of development authorities are not debts
pursuant to section eight, article X of the Constitution of West
Virginia; creating the Appalachian Region Interstate Compact;
providing a short title; establishing the compact and authorizing
membership under certain conditions; setting forth powers and
duties of compact members; providing for six compact commissioners;
authorizing appointment by the President of the Senate and the Speaker of the House of Delegates; specifying terms of service;
providing for funding for operating expenses; providing that
members will receive compensation and reimbursement for reasonable
and necessary expenses as determined by each state; and providing
that the act will become effective upon adoption of at least one
other state.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 697, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 697) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2309, Relating to tourism
development projects and tourism expansion projects.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments
to the bill.
Engrossed Committee Substitute for House Bill No. 2309, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2309) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment to
the Senate amendment, as to
Eng. House Bill No. 3184, Relating to confidentiality,
disclosure and authorization for disclosure of mental health
information.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendment to the bill was reported by the Clerk:
On page three, section one, subsection (b), subdivision (6),
after the words "to the patient" by inserting the words "or legal
representative".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendment to
the bill.
Engrossed House Bill No. 3184, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3184) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Chafin, the Senate recessed until 10 p.m.
tonight.
Upon expiration of the recess, the Senate reconvened and
resumed business under the third order.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendment to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2007, Budget Bill, making
appropriations of public money out of the treasury in accordance
with section fifty-one, article six of the Constitution.
On motion of Senator Chafin, the Senate refused to recede from
its amendment to the bill and requested the appointment of a
committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Helmick, Plymale, Prezioso, Bowman and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Love, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 65, Budget bill.
On third reading, coming up in regular order, was reported by
the Clerk.
On motion of Senator Helmick, the bill was recommitted to the
Committee on Finance.
Eng. Com. Sub. for House Bill No. 2027, Allowing awards under
the crime victims compensation program to be made to victims of
identity theft.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt,
Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Barnes, Hall, Sprouse and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2027) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2078, Clarifying the
procedure for tagging bear, bobcats, deer and wild turkey taken
while hunting.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2078) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2130, Eliminating any reduction in the
benefit of a deputy sheriff who is disabled on the job.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2130) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2204, Providing that retiring municipal
police officers may keep their service revolver.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2204) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2206, Prohibiting a person
not the owner of a dog from removing tags, collars or apparel from
a dog without the permission of the owner.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2206) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2380, Exempting the purchase
of certain drugs, durable medical goods, etc., from the consumers
sales and service tax.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2380) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2380) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2481, Allowing a registrant to transfer
the registration of a Class C vehicle to another Class C type
vehicle titled in the name of the registrant.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2481) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2525, Extending the
termination of the West Virginia statewide addressing and mapping
board.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Prior to the call of the roll, Senator Plymale moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Sharpe--1.
Excused from voting: Plymale--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2525) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Sharpe--1.
Excused from voting: Plymale--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2525) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2526, Allowing acupuncturists to form
limited liability companies.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2526) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2571, Clarifying the deadline for
redeeming delinquent lands.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2571) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2578, Continuing current mental health
parity laws for group insurance plans.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2578) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2578) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2583, Relating to the
expansion of newborn testing.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 2583 pass?"
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2583) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Thereafter, at the request of Senator Bailey, and by unanimous
consent, the remarks by Senator Chafin regarding the passage of Engrossed Committee Substitute for House Bill No. 2583 were ordered
printed in the Appendix to the Journal.
At the request of Senator Hunter, unanimous consent being
granted, the remarks by Senator Prezioso regarding the passage of
Engrossed Committee Substitute for House Bill No. 2583 were ordered
printed in the Appendix to the Journal.
Eng. House Bill No. 2703, Authorizing certain students
receiving instruction in fly fishing to fly fish while under the
supervision of an instructor without obtaining a license.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2703) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2710, Relating to the elimination of the
licensure exemption for certain contractors of manufactured housing installation.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2710) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2745, Increasing the fine for furnishing
alcohol to persons under 21 years of age.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2745) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2781, Modifying the statutory limitation
on the length of school buses.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2781) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2787, Creation of the
Address Confidentiality Program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2787) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2840, Relating to
transportation of wildlife outside of the state.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2840) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2877, Funding entities
ensuring public safety on state highways.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2877) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2877) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2938, Including motor
carrier inspectors and enforcement officers in the definition of
law-enforcement officer.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2938) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2944, Enhancing the end-of-life care given
to residents of nursing homes.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2944) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2989, Relating to certain tax shelters
used to avoid paying state income taxes.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2989) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2989) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2991, Authorizing the Tax Commissioner to
conduct criminal record checks of prospective employees of the Tax
Division.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2991) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2991) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3057, Relating to programs for all-inclusive care of the elderly, known as "PACE".
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3057) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3072, Relating to defining "charitable
exemptions" for purposes of the municipal business and occupation
tax.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and
Tomblin (Mr. President)--26.
The nays were: Barnes, Caruth, Guills, Hall, Sprouse, Sypolt
and Yoder--7.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3072) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3093, Providing a form for
a combined medical power of attorney and living will.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3093) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3097, Relating to government employees deferred compensation plans.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3097) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3141, Relating to whom assessors may issue
proof of payment of personal property taxes.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3141) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3145, West Virginia Film
Industry Investment Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3145) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3270, Relating to the compensation and
expenses of fiduciaries.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3270) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3271, Clarifying spendthrift trusts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3271) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2670, Authorizing the
Department of Commerce to promulgate legislative rules.
Whereupon, Senator Fanning, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2670, Authorizing the
Department of Commerce to promulgate legislative rules.
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 Engrossed
Committee Substitute for House Bill No. 2670 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 Senate, striking out everything after the enacting section, and agree to the same as follows:
ARTICLE 10. AUTHORIZATION FOR DEPARTMENT OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Office of Miners' Health, Safety and Training.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of April, two thousand six, authorized under the
authority of sections six, thirty-eight and fifty-five, article
two, chapter twenty-two-a of this code, modified by the Office of
Miners' Health, Safety and Training to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of January, two thousand seven,
relating to the Office of Miners' Health, Safety and Training
(protective clothing and equipment, 56 CSR 4), is authorized with
the following amendments:
On page one, subsection 1.1., by striking out the words "these
emergency rules" and inserting in lieu thereof the words "this
rule";
On page one, subsection 2.1., by striking out the word
"State's" and inserting in lieu thereof the word "state's";
On page one, subsection 2.1., line four, by striking out the
words "these legislative rules" and inserting in lieu thereof the
words "this rule";
On page two, subsection 2.2., by striking out the words "these
rules" and inserting in lieu thereof the words "this rule";
On page two, subsection 3.1., by striking out the words "as
they are defined" and inserting in lieu thereof the word "used";
On page two, subsection 3.2., by striking out the words "shall
mean" and inserting in lieu thereof the word "means";
On page two, subsection 3.3., by striking out the words "shall
herein refer" and inserting in lieu thereof the word "means";
On page three, subsection 4.1., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
On page four, subsection 5.2., by striking out the words
"department of labor" and inserting in lieu thereof the words
"Department of Labor";
On page four, subsection 5.2., after the word "Provided," by
striking out the word "However,";
On page four, subsection 5.3., line three, after the word
"training" by striking out the comma and the word "provided" and
inserting in lieu thereof a colon and the words "Provided, That"
and by striking out the word "manufacturers" and inserting in lieu
thereof the word "manufacturers'";
On page four, subsection 5.3., after the words "limited to" by
changing the semicolon to a colon;
On page five, subsection 6.1., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
On page five, subsection 6.2., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
On page eight, subparagraph 6.10.4.a.1., by striking out §56-
4-6" and inserting in lieu thereof "56 CSR 4-6";
On page nine, subsection 6.14., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
On page nine, by striking out subsection 6.15. in its
entirety;
On pages ten and eleven, by striking out subsection 7.4. in
its entirety;
On page eleven, by redesignating subdivision 8.1.1. as
subsection 8.2. and redesignating the remaining subsections
accordingly;
On page eleven, by redesignating subdivision 8.3.1. as
subsection 8.5. and redesignating the remaining subsections
accordingly;
On page fifteen, subsection 8.13., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
On pages fifteen and sixteen, by striking out subsection 8.15.
in its entirety;
On page seventeen, subsection 9.10., by striking out the words
"these rules" and inserting in lieu thereof the words "this rule";
And,
On page twenty, by striking out subsection 9.18. in its
entirety.
(b) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of sections six and thirty-eight, article one, chapter
twenty-two-a of this code, modified by the Office of Miners'
Health, Safety and Training to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of January, two thousand seven, relating to the Office of Miners' Health, Safety and Training
(standards for certification of coal mine electricians, 48 CSR 7),
is authorized with the following amendments:
"On page three, subsection 4.1., by striking out the words
"Section 8.2.1." and inserting in lieu thereof the words "8.3";
On page four, section five, by designating the last two
paragraphs of the section as subsections 5.2. and 5.3.,
respectively;
On page four, section six, by designating the second paragraph
of the section as subsection 6.2. and by redesignating the
following subsection accordingly;
On page five, section six, by designating the last paragraph
of the section as subsection 6.4.;
On page five, subsection 8.1., by striking out the words
"Section 8.2.1." and inserting in lieu thereof the words "Section
8.3";
On pages five and six, by striking out subdivision 8.2.1. in
its entirety and inserting in lieu thereof the following:
"8.3. Criteria and standards for alternative electrical
training programs must be adopted by unanimous approval of the
Director and the Board of Miner Training, Education and
Certification. An alternative electrical training program will not
become effective until approved by the Secretary of State as an
emergency rule or by the Legislature as an amendment to this rule."
and redesignating the remaining subsection accordingly;
And,
On page six, section nine, by designating the last paragraph
of the section as subsection 9.3."
§64-10-2. Bureau of Employment Programs.
The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand six, authorized 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 twelfth day of January, two
thousand seven, relating to the Bureau of Employment Programs
(requiring state agencies to revoke or not to grant, issue or renew
approval documents with employing units on the bureau's default
list, 96 CSR 1), is authorized.
§64-10-3. Division of Forestry.
The legislative rule filed in the State Register on the
twenty-second day of June, two thousand six, authorized under the
authority of section three-a, article one-a, chapter nineteen of
this code, modified by the Division of Forestry to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twelfth day of January, two
thousand seven, relating to the Division of Forestry (ginseng, 22
CSR 1), is authorized with the following amendments:
On page two, section three, by striking out "3.1.";
On page three, by redesignating subdivision 6.1.1. as
subsection 6.2. and by redesignating the remaining subsections
accordingly;
On page four, section seven, by striking out "7.1.";
On page four, section eight, by striking out "8.1.";
On page five, by redesignating subdivision paragraph 9.2.2.1.
as subdivision 9.2.2.;
On page five, section ten, by striking out "10.1.";
On page six, section eleven, by striking out "11.1.";
And,
On page six, subsection 13.2., after the words "Freedom of
Information Act" by striking out the remainder of the subsection
and inserting in lieu thereof the following: "as having a
significant commercial value to the extent permitted by W. Va. Code
§29B-1-4(1)."
§64-10-4. Division of Natural Resources.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized 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-eighth day of July, two thousand six, authorized under the
authority of section seven, article one, chapter twenty of this
code, relating to the Division of Natural Resources (special
boating rules, 58 CSR 26), is authorized.
(c) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized 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 eighteenth day of December,
two thousand six, relating to the Division of Natural Resources
(deer hunting, 58 CSR 50), is authorized.
(d) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized 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 second day of November, two
thousand six, relating to the Division of Natural Resources
(wildlife disease management, 58 CSR 69), is authorized with the
following amendments:
On page 2, subsection 2.3, line eight, after the word
"landscape" and the period, by striking the remainder of the
subsection and inserting in lieu thereof the following: "The
Director shall, at least annually after the establishment of a
containment area, review and evaluate any and all new information
relating to wildlife disease epidemiology and surveillance to
determine whether any such designation of a containment area should
be modified or rescinded and shall report these findings to the
Natural Resources Commission. Prior to the establishment of a
containment area, the Director shall consult with:
2.3.a. wildlife biologists within the Wildlife Resources
Section that are knowledgeable of wildlife diseases;
2.3.b. a Department of Agriculture veterinarian knowledgeable
of wildlife diseases;
2.3.c. conservation officers familiar with local and regional
landscape features; and
2.3.d. the Natural Resources Commission.";
And,
One page 3, by striking subsection 4.1 and inserting the
following: "4.1. It is illegal to feed cervids or other wildlife
in a containment area as determined by the Director and established
for the management, control or eradication of chronic wasting
disease, bovine tuberculosis, avian influenza or other wildlife
diseases. Provided, that song and insectivorous birds may be fed
so long as the person or persons feeding the same shall not do so
in a manner that causes a congregation of cervids or other wildlife
or in a manner that said person or persons reasonably should have
known would cause a congregation of cervids or other wildlife
Provided further, that captive cervids may be fed inside cervid
facilities permitted by the Division of Natural Resources."
(e) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized 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 second day of November, two
thousand six, relating to the Division of Natural Resources (public
use of campgrounds and recreation areas in West Virginia state wildlife management areas under the Division of Natural Resources,
58 CSR 70), is authorized with the following amendments:
On page one, subsection 2.2., by striking out the word "shall"
and inserting in lieu thereof the word "may";
On page two, section three, by striking out "3.1.";
On page two, subsection 2.18., by striking out the word
"shall" and inserting in lieu thereof the word "may";
And,
On page two, by striking out subsection 3.2. in its entirety.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 2670--A Bill to amend and
reenact article 10, chapter 64 of the Code of West Virginia, 1931,
as amended, all relating generally to the promulgation of
administrative rules by the Department of Commerce and the
procedures relating thereto; legislative mandate or authorization
for the promulgation of certain legislative rules by various
executive or administrative agencies of the state; authorizing
certain of the agencies to promulgate certain legislative rules in
the form that the rules were filed in the State Register;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee;
authorizing certain of the agencies to promulgate certain
legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules
with various modifications presented to and recommended by the
Legislative Rule-Making Review Committee and as amended by the
Legislature; authorizing the Office of Miners' Health, Safety and
Training to promulgate a legislative rule relating to protective
clothing and equipment; authorizing the Office of Miners' Health,
Safety and Training to promulgate a legislative rule relating to
standards for certification of coal mine electricians; authorizing
the Bureau of Employment Programs to promulgate a legislative rule
relating to requiring agencies to revoke or not grant issue or
renew approval documents with employing units on the Bureau's
default list; authorizing the Division of Forestry to promulgate a
legislative rule relating to ginseng; authorizing the Division of
Natural Resources to promulgate a legislative rule relating to
commercial whitewater outfitters; authorizing the Division of
Natural Resources to promulgate a legislative rule relating to
special boating rules; authorizing the Division of Natural
Resources to promulgate a legislative rule relating to deer
hunting; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to wildlife disease
management; and authorizing the Division of Natural Resources to
promulgate a legislative rule relating to public use of campgrounds
and recreation areas in West Virginia state wildlife management
areas under the Division of Natural Resources.
Respectfully submitted,
Bonnie Brown, Chair, William F. Stemple, Bill Hamilton, Conferees on the part of the House of Delegates.
John Pat Fanning, Chair, C. Randy White, Clark S. Barnes,
Conferees on the part of the Senate.
On motions of Senator Fanning, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2670, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2670) passed with its conference amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2670) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Green, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 67, Relating
to school access safety generally.
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 Committee Substitute for Senate Bill No. 67 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 of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §18-9D-2 and §18-9D-15 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 §18-9D-20; and
that said code be amended by adding thereto a new article, designated §18-9F-1, §18-9F-2, §18-9F-3, §18-9F-4, §18-9F-5, §18-
9F-6, §18-9F-7 and §18-9F-8, all to read as follows:
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.
The following terms, wherever used or referred to in this
article, have the following meanings For the purposes of this
article, unless a different meaning clearly appears from the
context:
(1) "Authority" means the School Building Authority of West
Virginia; or, if the authority is abolished, any board or officer
succeeding to the principal functions of the School Building
Authority or to whom the powers given to the authority are given by
law
(2) "Bonds" means bonds issued by the authority pursuant to
this article;
(3) "Construction project" means a project in the furtherance
of a facilities plan with a cost of the project greater than five
hundred thousand dollars for the new construction, expansion or
major renovation of facilities, buildings and structures for school
purposes, including: the
(A) The acquisition of land for current or future use in
connection with the construction project; as well as new
(B) New or substantial upgrading of existing equipment,
machinery, furnishings; installation
(C) Installation of utilities and other similar items
convenient in connection with placing related to making the construction project into operation: Provided, That a construction
operational.
(D) Construction project may does not include such items as
books, computers or equipment used for instructional purposes;
fuel; supplies; routine utility services fees; routine maintenance
costs; ordinary course of business improvements; and other items
which are customarily considered to result in a current or ordinary
course of business operating charge; Provided, however, That a
construction project may not include or a major improvement
project;
(4) "Cost of project" means the cost of construction,
expansion, renovation, repair and safety upgrading of facilities,
buildings and structures for school purposes; the cost of land,
equipment, machinery, furnishings, installation of utilities and
other similar items convenient in connection with placing the
project into operation related to making the project operational;
and the cost of financing, interest during construction,
professional service fees and all other charges or expenses
necessary, appurtenant or incidental to the foregoing, including
the cost of administration of this article;
(5) "Facilities plan" means a the ten-year countywide
comprehensive educational facilities plan established by the a
county board in accordance with guidelines adopted by the authority
to meet the goals and objectives of this article that: (i)
(A) Addresses the existing school facilities and facility
needs of the county to provide a thorough and efficient education in accordance with the provisions of this code and policies of the
state board; (ii) best
(B) Best serves the needs of the individual student students,
the general school population and the communities served by the
facilities; (iii) includes a
(C) Includes the school major improvement plan; as defined in
this section; (iv) is
(D) Includes the county board's school access safety plan
required by section three, article nine-f of this chapter;
(E) Is updated annually to reflect projects completed, current
enrollment projections and new or continuing needs; and (v) is
(F) Is approved by the state board and the authority prior to
the distribution of state funds pursuant to this article to any
county board or other entity applying for funds;
(6) "Project" means a construction project or a major
improvement project;
(7) "Region" means the area encompassed within and serviced by
a regional education service agency established pursuant to section
twenty-six, article two of this chapter;
(8) "Revenue" or "revenues" means moneys: deposited
(A) Deposited in the School Building Capital Improvements Fund
pursuant to the operation of section ten, article nine-a of this
chapter; moneys deposited
(B) Deposited in the School Construction Fund pursuant to the
operation of section thirty, article fifteen, chapter eleven of
this code and pursuant to the operation of section eighteen, article twenty-two, chapter twenty-nine of this code; moneys
deposited
(C) Deposited in the School Building Debt Service Fund
pursuant to section eighteen, article twenty-two, chapter
twenty-nine of this code; moneys deposited
(D) Deposited in the School Major Improvement Fund pursuant to
the operation of section thirty, article fifteen, chapter eleven of
this code; any moneys received
(E) Received, directly or indirectly, from any source for use
in any project completed pursuant to this article; and any other
moneys received
(F) Received by the authority for the purposes of this
article;
(9) "School major improvement plan" means a ten-year school
maintenance plan that: (i)
(A) Is prepared by a county board of education in accordance
with the guidelines established by the authority and incorporated
in its Countywide Comprehensive Educational Facilities Plan, or is
prepared by the state board of education or the administrative
council of an area vocational educational center in accordance with
the guidelines if the entities seek funding from the authority for
a major improvement project; (ii) addresses
(B) Addresses the regularly scheduled maintenance for all
school facilities of the county or under the jurisdiction of the
entity seeking funding; (iii) includes
(C) Includes a projected repair and replacement schedule for all school facilities of the county or of entity seeking funding;
(iv) addresses
(D) Addresses the major improvement needs of each school
within the county or under the jurisdiction of the entity seeking
funding; and (v) is
(E) Is required prior to the distribution of state funds for
a major improvement project pursuant to this article to the county
board, state board or administrative council; and
(10) "School major improvement project" means a project with
a cost greater than fifty thousand dollars and less than five
hundred thousand dollars for the renovation, expansion, repair and
safety upgrading of existing school facilities, buildings and
structures, including the substantial repair or upgrading of
equipment, machinery, building systems, utilities and other similar
items convenient in connection with such related to the renovation,
repair or upgrading in the furtherance of a school major
improvement plan. Provided, That a A major improvement project may
does not include such items as books, computers or equipment used
for instructional purposes; fuel; supplies; routine utility
services fees; routine maintenance costs; ordinary course of
business improvements; and or other items which are customarily
considered to result in a current or ordinary course of business
operating charge.
§18-9D-15. Legislative intent; allocation of money among
categories of projects; lease purchase options; limitation on
time period for expenditure of project allocation; county maintenance budget requirements; project disbursements over
period of years; preference for multicounty arrangements;
submission of project designs; set-aside to encourage local
participation.
(a) It is the intent of the Legislature to empower the School
Building Authority to facilitate and provide state funds and to
administer all federal funds provided for the construction and
major improvement of school facilities so as to meet the
educational needs of the people of this state in an efficient and
economical manner. The authority shall make funding determinations
in accordance with the provisions of this article and shall assess
existing school facilities and each facility's school major
improvement plan in relation to the needs of the individual
student, the general school population, the communities served by
the facilities and facility needs statewide.
(b) An amount that is no not more than three percent of the
sum of moneys that are determined by the authority to be available
for distribution during the then current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
paid into the School Major Improvement Fund pursuant to section six of this article and moneys deposited into the School Access Safety
Fund pursuant to section five, article nine-f of this chapter, may
be allocated and may be expended by the authority for projects
authorized in accordance with the provisions of section sixteen of
this article that service the educational community statewide or,
upon application by the state board, for educational programs that
are under the jurisdiction of the state board. In addition, upon
application by the state board or the administrative council of an
area vocational educational center established pursuant to article
two-b of this chapter, the authority may allocate and expend under
this subsection moneys for school major improvement projects
authorized in accordance with the provisions of section sixteen of
this article proposed by the state board or an administrative
council for school facilities under the direct supervision of the
state board or an administrative council, respectively.
Furthermore, upon application by a county board, the authority may
allocate and expend under this subsection moneys for school major
improvement projects for vocational programs at comprehensive high
schools, vocational schools cooperating with community and
technical college programs, or both. Each county board is
encouraged to cooperate with community and technical colleges in
the use of existing or development of new vocational technical
facilities. All projects eligible for funds from this subsection
shall be submitted directly to the authority which shall be solely
responsible for the project's evaluation, subject to the following:
(A) Provided, That the The authority may not expend any moneys for a school major improvement project proposed by the state board
or the administrative council of an area vocational educational
center unless the state board or an administrative council has
submitted a ten-year facilities plan; and
(B) Provided, however, That the The authority shall, before
allocating any moneys to the state board or the administrative
council of an area vocational educational center for a school
improvement project, consider all other funding sources available
for the project.
(c) An amount that is no not more than two percent of the
moneys that are determined by the authority to be available for
distribution during the current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, shall be set aside by the
authority as an emergency fund to be distributed in accordance with
the guidelines adopted by the authority.
(d) An amount that is no not more than five percent of the
moneys that are determined by the authority to be available for distribution during the current fiscal year from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, may be reserved by the
authority for multiuse vocational-technical education facilities
projects that may include post-secondary programs as a first
priority use. The authority may allocate and expend under this
subsection moneys for any purposes authorized in this article on
multiuse vocational-technical education facilities projects,
including equipment and equipment updates at the facilities,
authorized in accordance with the provisions of section sixteen of
this article. If the projects approved under this subsection do
not require the full amount of moneys reserved, moneys above the
amount required may be allocated and expended in accordance with
other provisions of this article. A county board, the state board,
an administrative council or the joint administrative board of a
vocational-technical education facility which includes post-
secondary programs may propose projects for facilities or
equipment, or both, which are under the direct supervision of the respective body: Provided, That the authority shall, before
allocating any moneys for a project under this subsection, consider
all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be
available for distribution during the then current fiscal year
from:
(1) Moneys paid into the School Building Capital Improvements
Fund pursuant to section ten, article nine-a of this chapter;
(2) The issuance of revenue bonds for which moneys in the
School Building Debt Service Fund are pledged as security;
(3) Moneys paid into the School Construction Fund pursuant to
section six of this article; and
(4) Any other moneys received by the authority, except moneys
deposited into the School Major Improvement Fund and moneys
deposited into the School Access Safety Fund pursuant to section
five, article nine-f of this chapter, shall be allocated and
expended on the basis of need and efficient use of resources for
projects funded in accordance with the provisions of section
sixteen of this article.
(f) If a county board of education proposes to finance a
project that is authorized in accordance with section sixteen of
this article through a lease with an option to purchase leased
premises upon the expiration of the total lease period pursuant to
an investment contract, the authority may not allocate no moneys to
the county board in connection with the project: Provided, That
the authority may transfer moneys to the state board of Education which, with the authority, shall lend the amount transferred to the
county board to be used only for a one-time payment due at the
beginning of the lease term, made for the purpose of reducing
annual lease payments under the investment contract, subject to the
following conditions:
(1) The loan shall be secured in the manner required by the
authority, in consultation with the state board, and shall be
repaid in a period and bear interest at a rate as determined by the
state board and the authority and shall have any terms and
conditions that are required by the authority, all of which shall
be set forth in a loan agreement among the authority, the state
board and the county board;
(2) The loan agreement shall provide for the state board and
the authority to defer the payment of principal and interest upon
any loan made to the county board during the term of the investment
contract, and annual renewals of the investment contract, among the
state board, the authority, the county board and a lessor, subject
to the following:
(A) Provided, That in In the event a county board which has
received a loan from the authority for a one-time payment at the
beginning of the lease term does not renew the subject lease
annually until performance of the investment contract in its
entirety is completed, the county board is in default and the
principal of the loan, together with all unpaid interest accrued to
the date of the default, shall, at the option of the authority, in
consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the
authority and the county board;
(B) Provided, however, That if If a county board renews the
lease annually through the performance of the investment contract
in its entirety, the county board shall exercise its option to
purchase the leased premises;
(C) Provided further, That the The failure of the county board
to make a scheduled payment pursuant to the investment contract
constitutes an event of default under the loan agreement;
(D) And provided further, That upon Upon a default by a county
board, the principal of the loan, together with all unpaid interest
accrued to the date of the default, shall, at the option of the
authority, in consultation with the state board, become due and
payable immediately or subject to renegotiation among the state
board, the authority and the county board; and
(E) And provided further, That if If the loan becomes due and
payable immediately, the authority, in consultation with the state
board, shall use all means available under the loan agreement and
law to collect the outstanding principal balance of the loan,
together with all unpaid interest accrued to the date of payment of
the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and
the authority to forgive all principal and interest of the loan
upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment contract
in its entirety.
(g) To encourage county boards to proceed promptly with
facilities planning and to prepare for the expenditure of any state
moneys derived from the sources described in this section, any
county board or other entity to whom moneys are allocated by the
authority that fails to expend the money within three years of the
allocation shall forfeit the allocation and thereafter is
ineligible for further allocations pursuant to this section until
it is ready to expend funds in accordance with an approved
facilities plan: Provided, That the authority may authorize an
extension beyond the three-year forfeiture period not to exceed an
additional two years. Any amount forfeited shall be added to the
total funds available in the School Construction Fund of the
authority for future allocation and distribution. Funds may not be
distributed for any project under this article unless the
responsible entity has a facilities plan approved by the state
board and the School Building Authority and is prepared to commence
expenditure of the funds during the fiscal year in which the moneys
are distributed.
(h) The remaining moneys that are determined by the authority
to be available for distribution during the then current fiscal
year from moneys paid into the School Major Improvement Fund
pursuant to section six of this article shall be allocated and
distributed on the basis of need and efficient use of resources for
projects authorized in accordance with the provisions of section
sixteen of this article, subject to the following:
(1) Provided, That the The moneys may not be distributed for any project under this section unless the responsible entity has a
facilities plan approved by the state board and the authority and
is to commence expenditures of the funds during the fiscal year in
which the moneys are distributed;
(2) Provided, however, That any Any moneys allocated to a
project and not distributed for that project shall be deposited in
an account to the credit of the project, the principal amount to
remain to the credit of and available to the project for a period
of two years; and
(3) Any moneys which are unexpended after a two-year period
shall be redistributed on the basis of need from the School Major
Improvement Fund in that fiscal year.
(i) No local Local matching funds may not be required under
the provisions of this section. However, this article does not
negate the responsibilities of the county boards of education to
maintain school facilities. are not negated by the provisions of
this article To be eligible to receive an allocation of school
major improvement funds from the authority, a county board must
have expended in the previous fiscal year an amount of county
moneys equal to or exceeding the lowest average amount of money
included in the county board's maintenance budget over any three of
the previous five years and must have budgeted an amount equal to
or greater than the average in the current fiscal year: Provided,
That the state board shall promulgate rules relating to county
boards' maintenance budgets, including items which shall be
included in the budgets.
(j) Any county board may use moneys provided by the authority
under this article in conjunction with local funds derived from
bonding, special levy or other sources. Distribution to a county
board, or to the state board or the administrative council of an
area vocational educational center pursuant to subsection (b) of
this section, may be in a lump sum or in accordance with a schedule
of payments adopted by the authority pursuant to guidelines adopted
by the authority.
(k) Funds in the School Construction Fund shall first be
transferred and expended as follows:
(1) Any funds deposited in the School Construction Fund shall
be expended first in accordance with an appropriation by the
Legislature.
(2) To the extent that funds are available in the School
Construction Fund in excess of that amount appropriated in any
fiscal year, the excess funds may be expended for projects
authorized in accordance with the provisions of section sixteen of
this article. Any projects which the authority identified and
announced for funding on or before the first day of August, one
thousand nine hundred ninety-five, or identified and announced for
funding on or before the thirty-first day of December, one thousand
nine hundred ninety-five, shall be funded by the authority in an
amount which is not less than the amount specified when the project
was identified and announced.
(l) It is the intent of the Legislature to encourage county
boards to explore and consider arrangements with other counties that may facilitate the highest and best use of all available
funds, which may result in improved transportation arrangements for
students or which otherwise may create efficiencies for county
boards and the students. In order to address the intent of the
Legislature contained in this subsection, the authority shall grant
preference to those projects which involve multicounty arrangements
as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of
new school buildings to the School Building Authority for review
and approval prior to preparation of final bid documents.
Provided, That a A vendor who has been debarred pursuant to the
provisions of sections thirty-three-a through thirty-three-f,
inclusive, article three, chapter five-a of this code may not bid
on or be awarded a contract under this section.
(n) The authority may elect to disburse funds for approved
construction projects over a period of more than one year subject
to the following:
(1) The authority may not approve the funding of a school
construction project over a period of more than three years;
(2) The authority may not approve the use of more than fifty
percent of the revenue available for distribution in any given
fiscal year for projects that are to be funded over a period of
more than one year; and
(3) In order to encourage local participation in funding
school construction projects, the authority may set aside limited
funding, not to exceed five hundred thousand dollars, in reserve for one additional year to provide a county the opportunity to
complete financial planning for a project prior to the allocation
of construction funds. Any funding shall be on a reserve basis and
converted to a part of the construction grant only after all
project budget funds have been secured and all county commitments
have been fulfilled. Failure of the county to solidify the project
budget and meet its obligations to the state within eighteen months
of the date the funding is set aside by the authority will result
in expiration of the reserve and the funds shall be reallocated by
the authority in the succeeding funding cycle.
§18-9D-20. Rules.
(a) The authority 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.
(b) All rules adopted or promulgated by the authority and in
effect immediately prior to the effective date of this section
shall be refiled pursuant to the provisions of article three-a,
chapter twenty-nine-a of this code on or before the first day of
September, two thousand seven.
(1) Any interpretive or procedural rule shall continue in
effect until rescinded or appropriately refiled by the authority.
(2) Any legislative rule shall continue in effect until
approved or rejected by the Legislature or rescinded by the
authority.
ARTICLE 9F. SCHOOL ACCESS SAFETY ACT.
§18-9F-1. Legislative findings and intent.
(a) The Legislature finds that:
(1) Establishing and maintaining safe and secure schools is
critical to fostering a healthy learning environment and maximizing
student achievement;
(2) All school facilities in the state should be designed,
constructed, furnished and maintained in a manner that enhances a
healthy learning environment and provides necessary safeguards for
the health, safety and security of persons who enter and use the
facilities;
(3) Adequate safeguards for the ingress to and egress from
school facilities of pupils, school employees, parents, visitors
and emergency personnel are critical to the overall safety of the
public schools in this state;
(4) Safety upgrades to the means of ingress to and egress from
school facilities for pupils, school employees, parents, visitors
and emergency personnel must be part of a comprehensive analysis of
overall school safety issues that takes into consideration the
input of local law-enforcement agencies, local emergency services
agencies, community leaders, parents, pupils, teachers,
administrators and other school employees interested in the
prevention of school crime and violence.
(b) It is the intent of the Legislature to empower the School
Building Authority to facilitate and provide state funds for the
design, construction, renovation, repair and upgrading of
facilities so as to enhance school access safety and provide secure
ingress to and egress from school facilities to pupils, school employees, parents, visitors and emergency personnel.
§18-9F-2. Definitions.
As used in this article, these terms have the meanings
ascribed unless the context clearly indicates a different meaning:
(1) "Authority" means the School Building Authority of West
Virginia;
(2) "Department of Education" means the West Virginia
Department of Education;
(3) "New school building" means any public school in the state
for educating students in any of grades kindergarten through
twelve, for which design and construction begin after the first day
of July, two thousand seven;
(4) "Project cost" means the cost of:
(A) Evaluating a school facility to ascertain its safety
needs;
(B) Determining appropriate measures to address safety needs;
(C) Developing a safety plan;
(D) Administering a safety project;
(E) The design, construction, renovation, repair and safety
upgrading of a school's means of ingress and egress;
(F) Equipment, machinery, installation of utilities and other
similar items necessary to making the project operational;
(G) Effectively maintaining structural and equipment
investments made pursuant to this article, including, but not
limited to, such provisions as maintenance contracts on security
equipment and video surveillance services; and
(H) All other charges necessary, appurtenant or incidental to
the provisions of this subdivision, including the cost of
administering this article;
(5) "School Access Safety Fund" means the special account
established in section five of this article;
(6) "School access safety plan" or "safety plan" means the
comprehensive countywide school access safety plan that:
(A) Is prepared by each county board seeking funding under
this article and incorporated into its comprehensive educational
facilities plan in accordance with guidelines established by the
authority;
(B) Addresses the access safety needs for all school
facilities in the county;
(C) Includes a projected school access safety repair and
renovation schedule for all school facilities of the county; and
(D) Is required prior to the disbursement of state funds for
a school access safety project pursuant to this article; and
(7) "School access safety project" or "safety project" means
a project administered in furtherance of a school access safety
plan pursuant to the provisions of this article.
§18-9F-3. School access safety plan.
(a) To facilitate the goals of this article and to ensure the
prudent and resourceful expenditure of state funds, each county
board seeking funds for school access safety projects during a
fiscal year shall submit to the authority a school access safety
plan or annual plan update that addresses the school access safety needs of each school facility in the county. In developing its
plan, the county board shall consult with the Countywide Council on
Productive and Safe Schools, in accordance with the provisions of
this section and section forty-two, article five of this chapter.
(b) The safety plan shall include at least the following:
(1) A countywide inventory of each school facility's means of
ingress to and egress from the school for students, school
employees, parents, visitors and emergency personnel including, but
not limited to:
(A) The number of controlled points of ingress to the school
facility;
(B) The number and placement of exterior doors;
(C) The use of monitoring systems on exterior doors;
(D) The use of timed, magnetic or other locks on exterior
doors;
(E) The use of two-way communication systems between points of
ingress and school personnel;
(F) The use of functional panic or other alarm hardware on
exterior doors; and
(G) The use of remote visitor access systems on points of
ingress;
(2) The recommendations and guidelines developed by the
Countywide Council on Productive and Safe Schools pursuant to
section forty-two, article five of this chapter, together with the
county board's assessment of the recommendations and guidelines;
(3) Recommendations for effective communication and coordination between school facilities, local law-enforcement
agencies and local emergency services agencies in the county;
(4) An assessment of the current status of crime committed on
school campuses and at school-related functions;
(5) A projected school access safety repair and renovation
schedule for all school facilities in the county;
(6) A prioritized list of all projects contained in the plan,
including the projected cost of each project;
(7) A description of how:
(A) The plan addresses the goals of this article and
guidelines established by the authority;
(B) Each project furthers the county board's safety plan,
facilities plan and school major improvement plan;
(8) Notation of the funds available for allocation and
disbursement to the county board pursuant to section six of this
article;
(9) A description of any source of local funds that the county
board intends to contribute to the safety projects, or an approved
financial hardship waiver, to satisfy the local contribution
requirements of section six of this article; and
(10) Any other element considered appropriate by the authority
or required by the guidelines established pursuant to section three
of this article, including any project and maintenance
specification.
§18-9F-4. Guidelines and procedures for school access safety plans;
project evaluation; on-site inspection of facilities.
(a) By the first day of June, two thousand seven, the
authority shall establish and distribute to each county board
guidelines and procedures regarding school access safety plans and
school access safety projects, which shall address at least the
following:
(1) All of the necessary elements of the school access safety
plan required in accordance with the provisions of section three of
this article;
(2) The manner, time line and process for submission to the
authority of each safety plan and annual plan update, including
guidelines for modification of an approved safety plan;
(3) Any project and maintenance specifications considered
appropriate by the authority;
(4) Procedures for a county board to submit a preliminary
plan, plan outline or plan proposal to the authority prior to
submitting the safety plan. The preliminary plan, plan outline or
plan proposal shall be the basis for a consultation meeting between
representatives of the county board and the authority. The meeting
shall be held as soon as practicable following submission in order
to:
(A) Ensure understanding of the goals of this article;
(B) Discuss ways the plan may be structured to meet the goals
of this article; and
(C) Ensure efficiency and productivity in the approval
process; and
(5) Procedures for notifying county boards of the funds available for allocation and disbursement during each fiscal year
pursuant to section six of this article.
(b) By the first day of June, two thousand seven, the
authority shall establish and distribute to each county board
guidelines and procedures for evaluating safety plans and safety
projects that address at least the following:
(1) Whether the proposed safety project furthers the safety
plan and complies with the guidelines established by the authority;
(2) How the safety plan and safety project will ensure the
prudent and resourceful expenditure of state funds and achieve the
purposes of this article;
(3) Whether the safety plan and safety project advance student
health and safety needs, including, but not limited to, critical
health and safety needs;
(4) Whether the safety plan and safety project include
regularly scheduled preventive maintenance; and
(5) Consideration of the prioritized list of projects required
by section three of this article.
(c) The authority shall establish guidelines and procedures
for allocating and disbursing funds in accordance with section six
of this article, subject to the availability of funds.
(d) Each county board receiving funds pursuant to this article
annually shall conduct an on-site inspection and submit an audit
review to the state board. The inspection shall be conducted in
accordance with the provisions of the Department of Education's
Handbook on Planning School Facilities.
§18-9F-5. School Access Safety Fund.
(a) There is hereby established in the State Treasury a
special account designated the School Access Safety Fund.
(b) All funds accruing to the authority pursuant to the
provisions of this article shall be deposited into the fund and
expended in accordance with provisions of this article.
(c) Any funds remaining in the account at the end of a fiscal
year, including accrued interest, do not revert to the General
Revenue Fund, but remain in the account.
(d) The authority may transfer moneys from the fund to
custodial accounts maintained by the authority with a state
financial institution, as necessary to the performance of any
contracts executed by the authority in accordance with the
provisions of this article.
§18-9F-6. Allocation of funds; eligibility for funding.
(a) On or before the first day of May of each year, the
authority shall determine the amount of funds available in the
School Access Safety Fund for allocation and disbursement during
that fiscal year.
(b) The authority shall divide the amount of funds available
pursuant to subsection (a) of this section by the total net
enrollment in public schools for the state as a whole. That
quotient is the per pupil amount. The authority shall allocate to
each county board the per pupil amount of funds for each student in
net enrollment of that county, as defined in section two, article
nine-a of this chapter.
(c) The authority shall notify in writing each county board of
education the amount of funds available to that board as soon as
practicable upon determining that amount pursuant to subsection (b)
of this section.
(d) Except as provided in subdivision (3) of this subsection,
to be eligible to receive a disbursement of funds pursuant to this
article, a county board shall contribute local funds derived from
bonding, special levy or other identified sources to the school
access safety projects contained in the county board's school
access safety plan.
(1) The amount of a county board's contribution shall equal at
least fifteen percent of the funds available to the county board
pursuant to subsection (b) of this section.
(2) A county board may submit a financial hardship waiver
request to the state board for consideration regarding the county
board's inability to provide the contribution required by this
subsection. Upon review and approval of the request by the state
board, the authority shall waive the contribution requirement for
that county board and allocate and disburse funds pursuant to this
article.
(e) The authority may disburse funds pursuant to this section
only to a county board that:
(1) Has a safety plan that has been approved by the authority;
and
(2) Is prepared to commence expending the funds during the
fiscal year in which the funds are disbursed.
(f) The authority may disburse funds to a county board in a
lump sum or according to a schedule of payments adopted by the
authority that is consistent with its guidelines.
(g) To encourage county boards to proceed promptly with school
access safety planning and to prepare for the expenditure of funds
derived pursuant to this article, a county board forfeits any funds
that it fails to expend within one year of disbursement by the
authority. The county board is ineligible for any additional
allocation or disbursement pursuant to this article until it is
prepared to expend funds according to an approved school access
safety plan.
(1) The authority may authorize an extension beyond the one-
year forfeiture period not to exceed an additional six months.
(2) Any forfeited funds shall be returned to the School Access
Safety Fund and made available for future allocation and
disbursement.
§18-9F-7. School access safety requirements for new schools.
(a) Notwithstanding any other provision of this code to the
contrary, and in an effort to enhance school access safety, the
design and construction of any new school building receiving funds
from the authority shall comply with the school access safety
standards established by the authority. Any new school building
that does not comply with the school access safety standards may
not receive any funds from the authority pursuant to this article.
(b) The authority shall propose a rule for legislative
approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code that establishes standards for
school access safety in public school buildings. The rule shall
require for any project that will receive funding pursuant to this
article that the county board shall submit any new school design to
the authority for review and approval for compliance with this
section prior to preparing final bid documents.
§18-9F-8. Report.
The authority shall report to the Legislative Oversight
Commission on Education Accountability during the June and
September, two thousand seven, and January, two thousand eight,
interim meeting periods, regarding implementation of the provisions
of this article.;
And,
That both houses agree to a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 67--A Bill to
amend and reenact §18-9D-2 and §18-9D-15 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a
new section, designated §18-9D-20; and to amend said code by adding
thereto a new article, designated §18-9F-1, §18-9F-2, §18-9F-3,
§18-9F-4, §18-9F-5, §18-9F-6, §18-9F-7 and §18-9F-8, all relating
to the School Building Authority and school access safety
generally; declaring legislative findings and intent; defining
certain terms; authorizing the School Building Authority to
facilitate and provide funding for enhancing the safe ingress to
and egress from public schools; providing for county boards to
develop and submit to the authority school access safety plans; requiring authority to establish certain guidelines and procedures
regarding the plans, plan modifications and evaluation of projects
developed pursuant to the plans; creating a special account in the
State Treasury; authorizing carry-forward of account funds;
providing process, requirements and eligibility for allocating and
disbursing moneys to counties; establishing school access safety
requirements for certain new school buildings; authorizing
legislative rules; requiring refiling of authority rules; requiring
certain rules of authority to be refiled as legislative rules; and
requiring report on implementation of school access safety
requirements.
Respectfully submitted,
Mike Green, Chair, Ron Stollings, Mike Hall, Conferees on the
part of the Senate.
Kevin J. Craig, Chair, Timothy R. Ennis, Jeffery Tansill,
Conferees of the part of the House of Delegates.
Senator Green, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Green, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 67, as amended by the conference report, was then
put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--32.
The nays were: Deem--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 67) passed with its
conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Plymale, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 541, Relating
to public school finance.
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 Committee Substitute for Senate Bill No. 541 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 of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-1C-5b; that §11-8-6f of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §11-21-23; that
§18-9A-2, §18-9A-11 and §18-9A-15 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §18-9A-2a, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-5b. Assessment for purpose of calculating local share.
(a) This section is effective the first day of July, two
thousand thirteen.
(b) The Tax Commissioner shall calculate the total assessed
values for the purpose of calculating local share for each county
each year pursuant to this section and report the total assessed
values to the State Board of Education on or before the first day
of December of each year.
(c) To provide for assessors to assess at sixty percent of
market value, it is the intent of the Legislature that local share,
as set forth in section eleven, article nine-a, chapter eighteen of
this code, be calculated assuming that the types of property
included in the assessment ratio study in each county are assessed
at a level in which the assessment ratio study indicates would be
sixty percent of market value.
(d) For each of Classes II, III and IV as set forth in section
five, article eight of this chapter, all real property of the type
that is or would be included in the assessment ratio study if sold
is assumed for the purpose of calculating local share to be assessed at the amount the property would be assessed at if all the
property in the class were adjusted under the assumption that,
using a ratio of sixty percent, all the property were under or over
assessed to the same extent as that property included in the
assessment ratio study so that using the assessment ratio study as
an indicator all the property in the class would be assessed at the
ratio of sixty percent of market value: Provided, That if the
sales ratio analysis indicates that assessments are within ten
percent of sixty percent of market value, assessments are
considered to be sixty percent of market value for the purposes of
this section.
(e) The amount of the assumed assessed values determined
pursuant to subsection (d) of this section shall be added to the
actual assessed values of personal property, farmland, managed
timberland, public utility property or any other centrally assessed
property provided in paragraphs (A), (B), (C) and (D), subdivision
(2), subsection (a), section five of this article and the sum of
these values is the total assessed value for the purpose of
calculating local share.
ARTICLE 8. LEVIES.
§11-8-6f. Regular school board levy rate; creation and
implementation of Growth County School Facilities Act;
creation of Growth County School Facilities Act Fund.
(a) Notwithstanding any other provision of law, where any
annual appraisal, triennial appraisal or general valuation of
property would produce a statewide aggregate assessment that would cause an increase of one two percent or more in the total property
tax revenues that would be realized were the then current regular
levy rates of the county boards of education to be imposed, the
rate of levy for county boards of education shall be reduced
uniformly statewide and proportionately for all classes of property
for the forthcoming tax year so as to cause the rate of levy to
produce no more than one hundred one two percent of the previous
year's projected statewide aggregate property tax revenues from
extending the county board of education levy rate, unless
subsection (b) of this section is complied with. The reduced rates
of levy shall be calculated in the following manner: (1) The total
assessed value of each class of property as it is defined by
section five of this article for the assessment period just
concluded shall be reduced by deducting the total assessed value of
newly created properties not assessed in the previous year's tax
book for each class of property; (2) the resulting net assessed
value of Class I property shall be multiplied by .01; the value of
Class II by .02; and the values of Class III and IV, each by .04;
(3) total the current year's property tax revenue resulting from
regular levies for the boards of education throughout this state
and multiply the resulting sum by one hundred one two percent:
Provided, That the one hundred one two percent figure shall be
increased by the amount the boards of educations' increased levy
provided for in subsection (b), section eight, article one-c of
this chapter; (4) divide the total regular levy tax revenues, thus
increased in subdivision (3) of this subsection, by the total weighted net assessed value as calculated in subdivision (2) of
this subsection and multiply the resulting product by one hundred;
the resulting number is the Class I regular levy rate, stated as
cents-per-one hundred dollars of assessed value; and (5) the Class
II rate is two times the Class I rate; Classes III and IV, four
times the Class I rate as calculated in the preceding subdivision.
An additional appraisal or valuation due to new construction
or improvements, including beginning recovery of natural resources,
to existing real property or newly acquired personal property shall
not be an annual appraisal or general valuation within the meaning
of this section, nor shall the assessed value of the improvements
be included in calculating the new tax levy for purposes of this
section. Special levies shall not be included in any calculations
under this section.
(b) After conducting a public hearing, the Legislature may, by
act, increase the rate above the reduced rate required in
subsection (a) of this section if an increase is determined to be
necessary.
(c) The State Tax Commissioner shall report to the Joint
Committee on Government and Finance and the Legislative Oversight
Commission on Education Accountability by the first day of March of
each year on the progress of assessors in each county in assessing
properties at the constitutionally required sixty percent of market
value and the effects of increasing the limit on the increase in
total property tax revenues set forth in this section to two
percent.
(c) (d) Growth County School Facilities Act. -- Legislative
findings. -
The Legislature finds and declares that there has been,
overall, a statewide decline in enrollment in the public schools of
this state; due to this decline, most public schools have ample
space for students, teachers and administrators; however, some
counties of this state have experienced significant increases in
enrollment due to significant growth in those counties; that those
counties experiencing significant increases do not have adequate
facilities to accommodate students, teachers and administrators.
Therefore, the Legislature finds that county commissions boards of
education in those high-growth counties should have the authority
to designate revenues generated from the application of the regular
school board levy due to new construction or improvements placed in
a Growth County School Facilities Act Fund be used for school
facilities in those counties to promote the best interests of this
state's students.
(1) For the purposes of this subsection, "growth county" means
any county that has experienced an increase in second month net
enrollment excluding kindergarten students less than five years of
age without an individualized education program of fifty or more
during any three of the last five years, as determined by the State
Department of Education.
(2) The provisions of this subsection shall only apply to any
growth county, as defined in subdivision (1) of this subsection,
that, by resolution of its county board of education, chooses to use the provisions of this subsection.
(3) For any growth county, as defined in subdivision (1) of
this subsection, that adopts a resolution choosing to use the
provisions of this subsection, pursuant to subdivision (2) of this
subsection, assessed values resulting from additional appraisal or
valuation due to new construction or improvements including
beginning recovery of natural resources, to existing real property
or newly acquired personal property, shall be designated as new
property values and identified by the county assessor. The
statewide regular school board levy rate as established by the
Legislature shall be applied to the assessed value designated as
new property values and the resulting property tax revenues
collected from application of the regular school board levy rate
shall be placed in a separate account, designated as the Growth
Counties School Facilities Act Fund. Revenues deposited in the
Growth Counties School Facilities Act Fund shall be appropriated by
the county board of education for construction, maintenance or
repair of school facilities. Revenues in the fund may be carried
over for an indefinite length of time and may be used as matching
funds for the purpose of obtaining funds from the School Building
Authority or for the payment of bonded indebtedness incurred for
school facilities. For any growth county choosing to use the
provisions of this subsection, estimated school board revenues
generated from application of the regular school board levy rate to
new property values are not to be considered as local funds for
purposes of the computation of local share under the provisions of section eleven, article nine-a, chapter eighteen of this code.
(d) This section, as amended during the legislative session in
the year two thousand four, shall be effective as to any regular
levy rate imposed for the county boards of education for taxes due
and payable on or after the first day of July, two thousand four.
If any provision of this section is held invalid, the invalidity
shall not affect other provisions or applications of this section
which can be given effect without the invalid provision or its
application and to this end the provisions of this section are
declared to be severable.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-23. Refundable credit for real property taxes paid in
excess of two and a half percent of income.
(a) For the tax years beginning on or after the first day of
January, two thousand eight, any homeowner living in his or her
homestead shall be allowed a refundable credit against the taxes
imposed by this article equal to the amount of real property taxes
paid in excess of four percent of their income. If the refundable
credit provided in this section exceeds the amount of taxes imposed
by this article, the State Department of Revenue shall refund that
amount to the homeowner.
(b) Due to the administrative cost of processing, the
refundable credit authorized by this section may not be refunded if
less than ten dollars.
(c) The credit for each property tax year shall be claimed by
filing a claim for refund within twelve months after the real property taxes are paid on the homestead.
(d) For the purposes of this section:
(1) "Gross household income" is defined as federal adjusted
gross income plus the sum of the following:
(A) Modifications in subsection (b), section twelve, article
twenty-one of this chapter increasing federal adjusted gross
income;
(B) Federal tax-exempt interest reported on federal tax
return;
(C) Workers' compensation and loss of earnings insurance; and
(D) Nontaxable social security benefits; and
(2) For the tax years beginning before the first day January,
two thousand eight, "real property taxes paid" means the aggregate
of regular levies, excess levies and bond levies extended against
the homestead that are paid during the calendar year and determined
after any application of any discount for early payment of taxes
but before application of any penalty or interest for late payment
of property taxes for property tax years that begin on or after the
first day of January, two thousand eight.
(e) A homeowner is eligible to benefit from this section or
section twenty-one of this article, whichever section provides the
most benefit as determined by the homeowner. No homeowner may
receive benefits under both this section and section twenty-one of
this article during the same taxable year. Nothing in this section
denies those entitled to the homestead exemption provided in
section three, article six-b of this chapter.
(f) No homeowner may receive a refundable tax credit imposed
by this article in excess of one thousand dollars. This amount
shall be reviewed annually by the Legislature to determine if an
adjustment is necessary.
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2. Definitions.
For the purpose of this article:
(a) "State board" means the West Virginia Board of Education.
(b) "County board" or "board" means a county board of
education.
(c) "Professional salaries" means the state legally mandated
salaries of the professional educators as provided in article four,
chapter eighteen-a of this code.
(d) "Professional educator" shall be synonymous with and shall
have the same meaning as "teacher" as defined in section one,
article one of this chapter.
(e) "Professional instructional personnel" means a
professional educator whose regular duty is as that of a classroom
teacher, librarian, counselor, attendance director, school
psychologist or school nurse with a bachelor's degree and who is
licensed by the West Virginia Board of Examiners for Registered
Professional Nurses. A professional educator having both
instructional and administrative or other duties shall be included
as professional instructional personnel for that ratio of the
school day for which he or she is assigned and serves on a regular full-time basis in appropriate instruction, library, counseling,
attendance, psychologist or nursing duties.
(f) "Service personnel salaries" shall mean means the state
legally mandated salaries for service personnel as provided in
section eight-a, article four, chapter eighteen-a of this code.
(g) "Service personnel" shall mean means all personnel as
provided for in section eight, article four, chapter eighteen-a of
this code. For the purpose of computations under this article of
ratios of service personnel to adjusted enrollment, a service
employee shall be counted as that number found by dividing his or
her number of employment days in a fiscal year by two hundred:
Provided, That the computation for any such service person employed
for three and one-half hours or less per day as provided in section
eight-a, article four, chapter eighteen-a of this code shall be
calculated as one-half an employment day.
(h) "Net enrollment" means the number of pupils enrolled in
special education programs, kindergarten programs and grades one to
twelve, inclusive, of the public schools of the county. Commencing
with the school year beginning on the first day of July, one
thousand nine hundred eighty-eight, net enrollment further shall
include adults enrolled in regular secondary vocational programs
existing as of the effective date of this section, subject to the
following:
(1) Provided, That net Net enrollment shall include includes
no more than one thousand such of those adults counted on the basis
of full-time equivalency and apportioned annually to each county in proportion to the adults participating in regular secondary
vocational programs in the prior year counted on the basis of
full-time equivalency; and
(2) Provided, however, That no Net enrollment does not include
any adult charged tuition or special fees beyond that required of
the regular secondary vocational student. is charged for such
adult students
(i) "Adjusted enrollment" means the net enrollment plus twice
the number of pupils enrolled for special education. Commencing
with the school year beginning on the first day of July, one
thousand nine hundred ninety, adjusted enrollment means the net
enrollment plus twice the number of pupils enrolled for special
education, including gifted pupils in grades one through eight and
exceptional gifted pupils in grades nine through twelve, plus the
number of pupils in grades nine through twelve enrolled for honors
and advanced placement programs, plus the number of pupils enrolled
on the first day of July, one thousand nine hundred eighty-nine, in
the gifted program in grades nine through twelve, subject to the
following:
(1) Provided, That commencing with the school year beginning
on the first day of July, one thousand nine hundred ninety, no No
more than four percent of net enrollment of grades one through
eight may be counted as enrolled in gifted education and no more
than six percent of net enrollment of grades nine through twelve
may be counted as enrolled in gifted education, exceptional gifted
education (subject to the limitation set forth in section one, article twenty of this chapter) and honors and advanced placement
programs for the purpose of determining adjusted enrollment within
a county;
(2) Provided, however, That nothing Nothing herein shall be
construed to limit the number of students who may actually enroll
in gifted, exceptional gifted, honors or advanced placement
education programs in any county; Provided further, That until the
school year beginning on the first day of July, one thousand nine
hundred ninety-two, the preceding percentage limitations shall not
restrict the adjusted enrollment definition for a county to the
extent that those limitations are exceeded by students enrolled in
gifted education programs on the first day of July, one thousand
nine hundred eighty-nine:
(3) And provided further, That no No pupil may be counted more
than three times for the purpose of determining adjusted
enrollment;
(4) Such The enrollment shall be adjusted to the equivalent of
the instructional term and in accordance with such the eligibility
requirements and rules as established by the state board; and
(5) No pupil shall be counted more than once by reason of
transfer within the county or from another county within the state,
and no pupil shall be counted who attends school in this state from
another state.
(j) "Levies for general current expense purposes" means
ninety-eight ninety-four percent of the levy rate for county boards
of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this
code: Provided, That beginning the first day of July, two thousand
eight, "levies for general current expense purposes" means ninety
percent of the levy rate for county boards of education calculated
or set by the Legislature pursuant to the provisions of said
section: Provided, however, That effective the first day of July,
two thousand ten, the definitions set forth in this subsection are
subject to the provisions of section two-a of this article.
"Basic resources per pupil" for the state and the several
counties means the total of (a) ninety-five percent of the property
tax revenues computed at the levy rate for county boards of
education calculated or set by the Legislature pursuant to the
provisions of section six-f, article eight, chapter eleven of this
code, but excluding revenues from increased levies as provided in
section ten, article X of the Constitution of West Virginia, and
(b) basic state aid as provided in sections twelve and thirteen of
this article, but excluding the foundation allowance to improve
instructional programs as provided in section ten of this article,
and excluding any funds appropriated for the purpose of achieving
salary equity among county board employees, this total divided by
the number of students in adjusted enrollment: Provided, That
beginning with the school year commencing on the first day of July,
one thousand nine hundred ninety-one, and thereafter, the
foundation allowance for transportation costs as provided in
section seven of this article shall also be excluded and the total
shall be divided by the number of students in net enrollment: Provided, however, That any year's allocations to the counties of
the eighty percent portion of the foundation allowance to improve
instructional programs, as provided in section ten of this article,
shall be determined on the basis of the immediately preceding
school year's basic resources per pupil.
§18-9A-2a. Definition of levies for general current expense
purposes.
(a) For the purposes of this section only, "property" means
only Classes II, III and IV properties exclusive of natural
resources property as defined in section ten, article one-c,
chapter eleven of this code, personal property, farmland, managed
timberland, public utility property or any other centrally assessed
property provided in paragraphs (A), (B), (C) and (D), subdivision
(2), subsection (a), section five of said article: Provided, That
nothing in this subsection may be construed to require that levies
for general current expense purposes be applied only to those
properties that are included in this definition.
(b) For the purposes of this section only, the median ratio of
the assessed values to actual selling prices in the assessment
ratio study applicable to the immediately preceding fiscal year
shall be used as the indicator to determine the percentage market
value that properties are being assessed at.
(c) Notwithstanding any other provision of this section or
section two of this article, effective the first day of July, two
thousand ten, for any county that is not assessing property at
least at fifty-four percent of market value, "levies for general current expense purposes" means ninety-eight percent of the levy
rate for county boards of education set by the Legislature pursuant
to section six-f, article eight, chapter eleven of this code.
(d) Any county that receives additional state aid due to its
using a percentage less than ninety-eight percent in the
calculation of levies for general current expense purposes shall
report to the state board how the additional state aid was used.
The state board shall compile the reports from all the county
boards into a single report and shall report to the Legislative
Oversight Commission on Education Accountability how the county
boards used this additional state aid. The report shall be made
annually as soon as practical after the end of each fiscal year.
§18-9A-11. Computation of local share; appraisal and assessment of
property; public library support.
(a) On the basis of each county's certificates of valuation as
to all classes of property as determined and published by the
assessors pursuant to section six, article three, chapter eleven of
this code for the next ensuing fiscal year in reliance upon the
assessed values annually developed by each county assessor pursuant
to the provisions of articles one-c and three of said chapter, the
state board shall for each county compute by application of the
levies for general current expense purposes, as defined in section
two of this article, the amount of revenue which the levies would
produce if levied upon one hundred percent of the assessed value of
each of the several classes of property contained in the report or
revised report of the value, made to it by the Tax Commissioner as follows:
(1) The state board shall first take ninety-five percent of
the amount ascertained by applying these rates to the total
assessed public utility valuation in each classification of
property in the county.
(2) The state board shall then apply these rates to the
assessed taxable value of other property in each classification in
the county as determined by the Tax Commissioner and shall deduct
therefrom five percent as an allowance for the usual losses in
collections due to discounts, exonerations, delinquencies and the
like. All of the amount so determined shall be added to the
ninety-five percent of public utility taxes computed as provided in
subdivision (1) of this subsection and this total shall be further
reduced by the amount due each county assessor's office pursuant to
the provisions of section eight, article one-c, chapter eleven of
this code and this amount shall be the local share of the
particular county.
As to any estimations or preliminary computations of local
share that may be required prior to the report to the Legislature
by the Tax Commissioner, the state Board of Education shall use the
most recent projections or estimations that may be available from
the Tax Department for that purpose.
(b) Commencing with the two thousand thirteen fiscal year, and
each fiscal year thereafter, subsection (a) of this section is void
and local share shall be calculated in accordance with the
following:
(1) The state board shall for each county compute by
application of the levies for general current expense purposes, as
defined in sections two and two-a of this article, the amount of
revenue which the levies would produce if levied upon one hundred
percent of the assessed value calculated pursuant to section
five-b, article one-c, chapter eleven of this code;
(2) Five percent shall be deducted from the revenue calculated
pursuant to subdivision (1) of this subsection as an allowance for
the usual losses in collections due to discounts, exonerations,
delinquencies and the like; and
(3) The amount calculated in subdivision (2) of this
subsection shall further be reduced by the sum of money due each
assessor's office pursuant to the provisions of section eight,
article one-c, chapter eleven of this code and this reduced amount
shall be the local share of the particular county.
(b) (c) Whenever in any year a county assessor or a county
commission shall fail or refuse to comply with the provisions of
this section in setting the valuations of property for assessment
purposes in any class or classes of property in the county, the
State Tax Commissioner shall review the valuations for assessment
purposes made by the county assessor and the county commission and
shall direct the county assessor and the county commission to make
corrections in the valuations as necessary so that they shall
comply with the requirements of chapter eleven of this code and
this section and the Tax Commissioner shall enter the county and
fix the assessments at the required ratios. Refusal of the assessor or the county commission to make the corrections
constitutes grounds for removal from office.
(c) (d) For the purposes of any computation made in accordance
with the provisions of this section, in any taxing unit in which
tax increment financing is in effect pursuant to the provisions of
article eleven-b, chapter seven of this code, the assessed value of
a related private project shall be the base-assessed value as
defined in section two of said article.
(d) (e) For purposes of any computation made in accordance
with the provisions of this section, in any county where the county
board of education has adopted a resolution choosing to use the
provisions of the Growth County School Facilities Act set forth in
section six-f, article eight, chapter eleven of this code,
estimated school board revenues generated from application of the
regular school board levy rate to new property values, as that term
is designated in said section, may not be considered local share
funds and shall be subtracted before the computations in
subdivisions (1) and (2), subsection (a) of this section or in
subdivisions (2) and (3), subsection (b) of this section as
applicable, are made.
(f) The Legislature finds that public school systems
throughout the state provide support in varying degrees to public
libraries through a variety of means, including budgeted
allocations, excess levy funds and portions of their regular school
board levies as may be provided by special act. A number of public
libraries are situated on the campuses of public schools and several are within public school buildings serving both the
students and public patrons. To the extent that public schools
recognize and choose to avail the resources of public libraries
toward developing within their students such legally recognized
elements of a thorough and efficient education as literacy,
interests in literature, knowledge of government and the world
around them and preparation for advanced academic training, work
and citizenship, public libraries serve a legitimate school purpose
and may do so economically. For the purposes of any computation
made in accordance with the provisions of this section, the library
funding obligation on the regular school board levies created by a
special act shall be paid from that portion of the levies which
exceeds the proportion determined to be local share. If the
library funding obligation is greater than the amount available in
excess of the county's local share, the obligation created by the
special act is reduced to the amount which is available,
notwithstanding any provisions of the special act to the contrary.
(g) It is the intent of the Legislature that whenever a
provision of subsection (f) of this section is contrary to any
special act of the Legislature which has been or may in the future
be enacted by the Legislature that creates a library funding
obligation on the regular school board levy of a county, said
subsection controls over the special act. Specifically, the
special acts which are subject to said subsection upon the
enactment of this section during the two thousand seven regular
session of the Legislature include:
(1) Enrolled Senate Bill No. 11, passed on the twelfth day of
February, one thousand nine hundred seventy, applicable to the
Berkeley County Board of Education;
(2) Enrolled House Bill No. 1352, passed on seventh day of
April, one thousand nine hundred eighty-one, applicable to the
Hardy County Board of Education;
(3) Enrolled Committee Substitute for House Bill No. 2833,
passed on the fourteenth day of March, one thousand nine hundred
eighty-seven, applicable to the Harrison County Board of Education;
(4) Enrolled House Bill No. 161, passed on the sixth day of
March, one thousand nine hundred fifty-seven, applicable to the
Kanawha County Board of Education;
(5) Enrolled Senate Bill No. 313, passed on the twelfth day of
March, one thousand nine hundred thirty-seven, as amended by
Enrolled House Bill No. 1074, passed on the eighth day of March,
one thousand nine hundred sixty-seven, and as amended by Enrolled
House Bill No. 1195, passed on the eighteenth day of January, one
thousand nine hundred eighty-two, applicable to the Ohio County
Board of Education;
(6) Enrolled House Bill No. 938, passed on the twenty-eighth
day of February, one thousand nine hundred sixty-nine, applicable
to the Raleigh County Board of Education;
(7) Enrolled House Bill No. 398, passed on the first day of
March, one thousand nine hundred thirty-five, applicable to the
Tyler County Board of Education;
(8) Enrolled Committee Substitute for Senate Bill No. 450, passed on the eleventh day of March, one thousand nine hundred
ninety-four, applicable to the Upshur County Board of Education;
and
(9) Enrolled House Bill No. 2994, passed on the thirteenth day
of March, one thousand nine hundred eighty-seven, applicable to the
Wood County Board of Education.
(h) Notwithstanding any provision of any special act set forth
in subsection (g) of this section to the contrary, the county board
of any county with a special act creating a library obligation out
of the county's regular school levy revenues may transfer that
library obligation so that it becomes an obligation of its excess
levy revenues instead of its regular school levy revenues, subject
to the following:
(1) If a county board chooses to transfer the library
obligation pursuant to this subsection, the library funding
obligation shall remain an obligation of the regular school levy
revenues until after the fiscal year in which a vote on an excess
levy occurs;
(2) If a county board chooses to transfer the library
obligation pursuant to this subsection, the county board shall
include the funding of the public library obligation in the same
amount as its library funding obligation on its regular levy
revenues as the purpose or one of the purposes for the excess levy
to be voted on;
(3) If a county board chooses to transfer the library
obligation pursuant to this subsection, regardless of whether or not the excess levy passes, effective the fiscal year after the
fiscal year in which a vote on the excess levy occurs, a county's
library obligation on its regular levy revenues is void
notwithstanding any provision of the special acts set forth in
subsection (g) of this section to the contrary; and
(4) Nothing in subdivision (3) of this subsection prohibits a
county board from funding its public library obligation
voluntarily.
§18-9A-15. Allowance for increased enrollment; extraordinary
sustained increased enrollment impact supplement.
(a) To provide for the support of increased net enrollments in
the counties in a school year over the net enrollments used in the
computation of total state aid for that year, there shall be
appropriated for that purpose from the General Revenue Fund an
amount to be determined in accordance with this section as follows:
(b) On or before the first day of September, two thousand
five, (1) The state board shall promulgate a rule pursuant to
article three-b, chapter twenty-nine-a of this code that
establishes an objective method for projecting the increase in net
enrollment for each school district. The state superintendent
shall use the method prescribed by the rule to project the increase
in net enrollment for each school district.
(c) (2) The state superintendent shall multiply the average
total state aid per net pupil by the sum of the projected increases
in net enrollment for all school districts and report this amount
to the Governor for inclusion in his or her proposed budget to the Legislature. The Legislature shall appropriate to the West
Virginia Department of Education the amount calculated by the state
superintendent and proposed by the Governor.
(d) (3) The state superintendent shall calculate each school
district's share of the appropriation by multiplying the projected
increase in net enrollment for the school district by the average
total state aid per net pupil and shall distribute sixty percent of
each school district's share to the school district on or before
the first day of September of each year. The state superintendent
shall make a second distribution of the remainder of the
appropriation in accordance with subsection (e) subdivision (4) of
this section.
(e) (4) After the first distribution pursuant to subsection
(d) subdivision (3) of this subsection is made and after the actual
increase in net enrollment is available, the state superintendent
shall compute the total actual amount to be allocated to each
school district for the year. The total actual amount to be
allocated to each school district for the year is the actual
increase in the school district's net enrollment multiplied by the
average total state aid per net pupil. The state superintendent
shall make the second distribution to each school district in an
amount determined so that the total amount distributed to the
district for the year, in both the first and second distributions,
equals the actual increase in net enrollment multiplied by the
average total state aid per net pupil. The state superintendent
shall make the second distribution on or before the thirty-first day of December of each year: Provided, That if the amount
distributed to a school district during the first distribution is
greater than the total amount to which a district is entitled to
receive for the year, the district shall refund the difference to
the Department of Education prior to the thirtieth day of June of
the fiscal year in which the excess distribution is made.
(f) (5) If the amount of the appropriation for increased
enrollment is not sufficient to provide payment in full for the
total of these several allocations, each county allocation shall be
reduced to an amount which is proportionate to the appropriation
compared to the total of the several allocations and the
allocations as thus adjusted shall be distributed to the counties
as provided in this section: Provided, That the Governor shall
request a supplemental appropriation at the next legislative
session for the reduced amount.
(b) To help offset the budgetary impact of extraordinary and
sustained increases in net enrollment in a county, there shall be
included in the basic state aid of any county, whose most recent
three-year average growth in second month net enrollment is two
percent or more, an amount equal to one fourth of the state average
per pupil state aid multiplied by the increase in the county's
second month net enrollment in the latest year.
(g) (c) No provision of this section shall be construed to in
any way affect the allocation of moneys for educational purposes to
a county under other provisions of law.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 541--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §11-1C-5b; to amend and reenact
§11-8-6f of said code; to amend said code by adding thereto a new
section, designated §11-21-23; to amend and reenact §18-9A-2, §18-
9A-11 and §18-9A-15 of said code; and to amend said code by adding
thereto a new section, designated §18-9A-2a, all relating to public
school finance; requiring local share to be calculated assuming
properties are being assessed at sixty percent of market value;
increasing the limit on revenue generated by the regular school
board levy; amending "growth county" definition and clarifying what
new property values to include for the purposes of the Growth
County School Facilities Act; increasing state aid to counties by
reducing the percentage used to calculate levies for general
current expense purposes subject to exception; providing for a
refundable property tax credit for real property taxes paid in
excess of a certain percent of income; requiring that a library
funding obligation created by special act be paid from certain
funds; limiting a library funding obligation; allowing, under
certain conditions, a transfer of the library funding obligation so
that the obligation is paid from excess levy revenues; voiding the
library funding obligation under certain conditions; and providing
extraordinary sustained increased enrollment impact supplement.
Respectfully submitted,
Robert H. Plymale, Chair, Larry J. Edgell, Billy Wayne Bailey,
Jr., Erik P. Wells, Donna J. Boley, Conferees on the part of the
Senate.
Mary M. Poling, Chair, Thomas W. Campbell, Richard Browning,
David G. Perry, Walter Duke, Conferees on the part of the House of
Delegates.
On motions of Senator Plymale, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 541, as amended by the conference report, was then
put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 541) passed with its
conference amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 541) takes effect July 1,
2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Bowman, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 747, Creating Municipal Home Rule Pilot
Program.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Senate
Bill No. 747 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 of Delegates, striking out everything
after the enacting section, and agree to the same as follows:
ARTICLE 1. PURPOSE AND SHORT TITLE; DEFINITIONS; GENERAL
PROVISIONS; CONSTRUCTION.
§8-1-5a. Pilot program to increase powers of municipal self-
government.
(a) The Legislature finds and declares that:
(1) The future economic progress for the State of West
Virginia is directly related to the success of its municipalities
in that stronger municipalities will make for a stronger West
Virginia;
(2) Municipalities face numerous challenges managing their
budgets and delivering services required by federal or state law or
demanded by their constituents;
(3) Municipalities are sometimes restricted by state statutes,
policies, rules and responsibilities that prevent them from
carrying out their duties and responsibilities in a cost-effective,
efficient and timely manner; and
(4) Authorizing pilot municipalities and metro governments in
West Virginia to exercise broad-based home rule will allow the
Legislature the opportunity to evaluate the viability of allowing
municipalities to have broad-based state home rule to improve urban
and state development.
(b) It is the intent of the Legislature in enacting this
section to establish a framework for municipalities within which
new ideas can be explored to see if they can or should be
implemented on a statewide basis.
(c) Effective the first day of July, two thousand seven, there is hereby created a pilot program to be known as the Municipal Home
Rule Pilot Program authorizing five selected Class I, Class II
and/or Class III municipalities and/or metro governments the
authority to enact any ordinances, acts, resolutions, rules and
regulations not contrary to the constitutions of the United States
or West Virginia, federal law or chapters sixty-a, sixty-one and
sixty-two of this code.
(d) To be eligible to participate in the Municipal Home Rule
Pilot Program, the applicant shall:
(1) Be a Class I, Class II and/or Class III municipality
and/or a metro government: Provided, That a municipality
considering consolidation or establishing a metro government shall
have no more than two years from the date it is selected for the
pilot program to complete its consolidation or metro government
process or its participation in the pilot program will terminate at
the end of the two-year period; and
(2) Have a written plan stating in detail the following:
(A) The specific laws, policies, rules or regulations which
prevent the municipality from carrying out its duties in the most
cost-efficient, effective and timely manner;
(B) The problems created by the laws, policies, rules or
regulations; and
(C) The proposed solutions to the problems, including all
proposed changes to ordinances, acts, resolutions, rules and
regulations.
(e) Effective the first day of July, two thousand seven, there is hereby created a Municipal Home Rule Board consisting of the
following seven members:
(1) The Governor, or a designee, who shall serve as chair;
(2) The Executive Director of the West Virginia Development
Office, or a designee;
(3) The chair of the Senate Committee on Government
Organization, or a designee;
(4) The chair of the House of Delegates Committee on
Government Organization, or a designee; and
(5) One member shall be a representative of the Business and
Industry Council;
(6) One member shall be a representative of the largest labor
organization in the state; and
(7) One member shall be a representative of the West Virginia
Chapter of American Institute of Certified Planners.
(f) The board has the powers necessary to implement the
provisions of this section, including the following:
(1) Reviewing, evaluating and making recommendations to the
proposed plans submitted by eligible municipalities and/or metro
governments;
(2) Consulting with state agencies affected by the proposed
plans;
(3) Selecting municipalities and/or metro governments to
participate in the pilot program;
(4) Approving the plans of recommended pilot program
participants, as submitted or as modified; and
(5) Authorizing amendments to approved plans.
(g) On or before the first day of January, two thousand eight,
an eligible municipality and/or metro government wanting to
participate in the pilot program shall submit a written plan as
described in subdivision (2), subsection (d) of this section to the
board.
(h) Prior to submitting a written plan, the municipality
shall:
(1) Conduct a public hearing on the proposed written plan;
(2) Provide at least thirty days' notice of the public hearing
by a Class II legal advertisement;
(3) Make a copy of the proposed written plan available for
public inspection at least thirty days prior to the public hearing;
and
(4) After the public hearing, adopt a municipal ordinance
authorizing the municipality to submit a proposed written plan to
the Municipal Home Rule Board after the proposed municipal
ordinance has been read two times.
(i) On or before the first day of June, two thousand eight,
the board shall select by a majority vote of the board at least one
but not more than five municipalities and/or metro governments to
participate in the pilot program.
(j) The pilot municipalities and/or metro governments selected
to participate in the pilot program shall have the following
powers:
(1) The authority to pass any ordinances, acts, resolutions, rules and regulations not contrary to the constitutions of the
United States or West Virginia, federal law or chapters sixty-a,
sixty-one and sixty-two of this code as specified in their written
and approved plans: Provided, That the pilot municipalities may not
adopt any ordinance, rule, regulation or resolution or take any
action that would create a defined contribution employee pension or
retirement plan for its employees currently covered by a defined
benefit pensions plan; and
(2) Any other powers necessary to implement the provisions of
its approved plan.
(k) Before the first day of July, two thousand twelve, the
Joint Committee on Government and Finance shall conduct a
performance review on the pilot program and the participating
municipalities and/or metro governments. The review shall include
the following:
(1) An evaluation of the effectiveness of expanded home rule
on the participating municipalities and/or metro governments;
(2) A recommendation as to whether the expanded home rule
should be continued, reduced, expanded or terminated;
(3) A recommendation as to whether any legislation is
necessary; and
(4) Any other issues considered relevant.
(l) On or before the first day of January, two thousand
thirteen, the Joint Committee on Government and Finance shall
report to the Joint Committee on Government Organization the
findings of the performance review.
(m) The pilot program terminates on the first day of July, two
thousand thirteen.
(n) No ordinances, acts, resolutions, rules or regulations may
be enacted by a municipality or metro government after the first
day of July, two thousand thirteen, pursuant to the provisions of
this section, unless otherwise authorized by the Legislature.
§8-1-7. Construction of powers and authority granted.
(a) The enumeration of powers and authority granted in this
chapter shall not operate to exclude the exercise of other powers
and authority fairly incidental thereto or reasonably implied and
within the purposes of this chapter and the or in accordance with
the provisions of the Municipal Home Rule Amendment to the
Constitution of this state, the powers and authority granted by
such Constitution, other provisions of this code and any existing
charter. The provisions of this chapter shall be given full effect
without regard to the common law rule of strict construction and
particularly when the powers and authority are exercised by charter
provisions framed and adopted or adopted by revision of a charter
as a whole or adopted by charter amendment under the provisions of
this chapter.
(b) Any charter provision framed and adopted or adopted by
revision of a charter as a whole or adopted by charter amendment
under the provisions of former chapter eight-a of this code or
under the provisions of this chapter which is beyond the power and
authority of a city municipality and any ordinance provision which
is beyond the power and authority of a municipality shall be of no force and effect.;
And,
That both houses agree to a new title, to read as follows:
Eng. Senate Bill No. 747--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §8-1-5a; and to amend and reenact §8-1-7 of said code,
all relating to creating the Municipal Home Rule Pilot Program;
legislative findings and intent; eligibility requirements; creating
the Municipal Home Rule Board; powers of the board and
participating municipalities and metro governments; requiring the
municipality to hold a public hearing and adopt a municipal
ordinance prior to submission of a written plan; requiring
performance review; reporting requirements; terminating pilot
program; certain grandfather provisions; and reaffirming home rule
powers for all municipalities.
Respectfully submitted,
Edwin J. Bowman, Chair, Brooks F. McCabe, Jr., C. Randy White,
Joseph M. Minard, Karen L. Facemyer, Conferees on the part of the
Senate.
Barbara Evans Fleischauer, Chair, Ricky Moye, Nancy Peoples
Guthrie, Alex J. Shook, John N. Ellem, Conferees on the part of the
House of Delegates.
Senator Bowman, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Bowman, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 747, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 747) passed with its conference amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 747) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Edgell, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 603, Establishing 21st
Century Tools for 21st Century Schools Technology Initiative.
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 603 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 of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §18-2E-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18-9A-10 of said code be
amended and reenacted, all to read as follows:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-7. Providing for twenty-first century instruction and
learning in all public schools.
(a) The Legislature finds that:
(1) The knowledge and skills children need to succeed in the
twenty-first century are changing dramatically and that West
Virginia students must develop proficiency in twenty-first century
content, technology tools and learning skills to succeed and
prosper in life, in school and on the job;
(2) Students must be equipped to live in a multitasking,
multifaceted, technology-driven world;
(3) The provision of twenty-first century technologies and
software resources in grades prekindergarten through twelve is
necessary to meet the goal that high school graduates will be
prepared fully for college, other post-secondary education or
gainful employment;
(4) This goal reflects a fundamental belief that the youth of
the state exit the system equipped with the skills, competencies
and attributes necessary to succeed, to continue learning
throughout their lifetimes and to attain self-sufficiency;
(5) To promote twenty-first century learning, teachers must be
competent in twenty-first century content and learning skills and
must be equipped to fully integrate technology to transform
instructional practice and to support twenty-first skills
acquisition;
(6) For students to learn twenty-first century skills,
students and teachers must have equitable access to high quality,
twenty-first century technology tools and resources;
(7) When aligned with standards and curriculum, technology-
based assessments can be a powerful tool for teachers; and
(8) Teachers must understand how to use technology to create
classroom assessments for accurate, timely measurements of student
proficiency in attainment of academic content and twenty-first
century skills.
(b) The state board shall ensure that the resources to be used to provide technology services to students in grades
prekindergarten through twelve are included in a West Virginia 21st
Century Strategic Technology Learning Plan to be developed by the
Department of Education as an integral component of the county and
school electronic strategic improvement plans as required in
section five of this article. The provision of technologies and
services to students and teachers shall be based on a plan
developed by each individual school team and aligned with the goals
and objectives of the West Virginia 21st Century Strategic
Technology Learning Plan. This plan shall be an integral component
of the county and school electronic strategic improvement plans as
required in section five of this article. Funds shall be allocated
equitably to county school systems following peer review of the
plans that includes providing necessary technical assistance prior
to submission and allows timely review and approval by the West
Virginia Department of Education. Technology tools, including
hardware, software, network cabling, network electronics and
related professional development, shall be purchased pursuant to
the provisions of article three, chapter five-a of this code in the
amount equal to anticipated revenues being appropriated and based
on the approved county and school plans. County allocations that
support this legislation shall adhere to state contract prices:
Provided, That, contingent upon approval of the county technology
plan, counties that identify, within that plan, specific software
or peripheral equipment not listed on the state contract, but
necessary to support implementation of twenty-first century skills, may request the West Virginia Department of Education to secure
state purchasing prices for those identified items. Total
expenditure to purchase these additional items may not exceed ten
percent of the annual county allocation. To the extent
practicable, the technology shall be used:
(1) To maximize student access to learning tools and resources
at all times including during regular school hours, before and
after school or class, in the evenings, on weekends and holidays
and for public education, noninstructional days and during
vacations; and
(2) For student use for homework, remedial work, independent
learning, career planning and adult basic education.
(c) The implementation of this section should provide a
technology infrastructure capable of supporting multiple
technology-based learning strategies designed to enable students to
achieve at higher academic levels. The technology infrastructure
should facilitate student development by addressing the following
areas:
(1) Mastery of rigorous core academic subjects in grades
prekindergarten through eight by providing software, other
technology resources or both aligned with state standards in
reading, mathematics, writing, science, social studies, twenty-
first century learning skills and twenty-first century learning
tools;
(2) Mastery of rigorous core academic subjects in grades nine
through twelve by providing appropriate twenty-first century technology tools aligned with state standards for learning skills
and technology tools;
(3) Attainment of twenty-first century skills outcomes for all
students in the use of technology tools and learning skills;
(4) Proficiency in new, emerging twenty-first century content;
(5) Participation in relevant, contextual instruction that
uses dynamic, real-world contexts that are engaging and meaningful
for students, making learning relevant to life outside of school
and bridging the gap between how students live and how they learn
in school;
(6) Ability to use digital and emerging technologies to manage
information, communicate effectively, think critically, solve
problems, work productively as an individual and collaboratively as
part of a team and demonstrate personal accountability and other
self-directional skills;
(7) Providing students with information on post-secondary
educational opportunities, financial aid and the skills and
credentials required in various occupations that will help them
better prepare for a successful transition following high school;
(8) Providing greater access to advanced and other curricular
offerings than could be provided efficiently through traditional
on-site delivery formats, including increasing student access to
quality distance learning curricula and online distance education
tools;
(9) Providing resources for teachers in differentiated
instructional strategies, technology integration, sample lesson plans, curriculum resources and online staff development that
enhance student achievement; and
(10) Providing resources to support basic skills acquisition
and improvement at the above mastery and distinguished levels.
(d) Developed with input from appropriate stakeholder groups,
the West Virginia 21st Century Strategic Technology Learning Plan
shall be an integral component of the electronic strategic county
and school improvement plans as required in section five of this
article. The West Virginia 21st Century Strategic Technology
Learning Plan shall be comprehensive and shall address, but not
necessarily be limited to, the following provisions:
(1) Allocation of adequate resources to provide students with
equitable access to twenty-first century technology tools,
including instructional offerings and appropriate curriculum,
assessment and technology integration resources aligned to both the
content and rigor of state content standards as well as to learning
skill and technology tools;
(2) Providing students and staff with equitable access to a
technology infrastructure that supports the acquisition of twenty-
first century skills, including the ability to access information,
solve problems, communicate clearly, make informed decisions,
acquire new knowledge, construct products, reports and systems, and
access online assessment systems;
(3) Inclusion of various technologies that enable and enhance
the attainment of twenty-first century skills outcomes for all
students;
(4) Collaboration with various partners, including parents,
community organization, higher education, schools of education in
colleges and universities, employers and content providers;
(5) Seeking of applicable federal government funds,
philanthropic funds, other partnership funds or any combination of
those types of funds to augment state appropriations and
encouraging the pursuit of funding through grants, gifts, donations
or any other sources for uses related to education technology;
(6) Sufficient bandwidth to support teaching and learning and
to provide satisfactorily for instructional management needs;
(7) Protection of the integrity and security of the network,
as well as student and administrative workstations;
(8) Flexibility to adjust the plan based on developing
technology, federal and state requirements and changing local
school and county needs;
(9) Incorporation of findings based upon validation from
research-based evaluation findings from previous West Virginia-
based evaluation projects;
(10) Continuing study of emerging technologies for application
in a twenty-first century learning environment and inclusion in the
technology plan, as appropriate;
(11) An evaluation component to determine the effectiveness of
the program and make recommendations for ongoing implementation;
(12) A program of embedded, sustained professional development
for teachers that is strategically developed to support a twenty-
first century education for all students and that aligns with state standards for technology, integrates twenty-first century skills
into educational practice and supports the implementation of
twenty-first century software, technology and assessment resources
in the classroom;
(13) Providing for uniformity in technological hardware and
software standards and procedures;
(14) The strategy for ensuring that the capabilities and
capacities of the technology infrastructure is adequate for
acceptable performance of the technology being implemented in the
public schools;
(15) Providing for a comprehensive, statewide uniform,
integrated education management and information system for data
collection and reporting to the Department of Education, as
provided in section twenty-six, article two of this chapter and
commonly referred to as the West Virginia Education Information
System;
(16) Providing for an effective model for the distance
delivery, virtual delivery or both types of delivery of instruction
in subjects where there exists low student enrollment or a shortage
of certified teachers or where the delivery method substantially
improves the quality of an instructional program such as the West
Virginia Virtual School;
(17) Providing a strategy to implement, support and maintain
technology in the public schools;
(18) Providing a strategy to provide ongoing support and
assistance to teachers in integrating technology into twenty-first century instruction such as with technology integration
specialists;
(19) A method of allowing public education to take advantage
of appropriate bulk purchasing abilities and to purchase from
competitively bid contracts initiated through the Southern Regional
Education Board Educational Technology Cooperative and the America
TelEdCommunications Alliance;
(20) Compliance with United States Department of Education
regulations and Federal Communications Commission requirements for
federal E-rate discounts; and
(21) Other provisions as considered appropriate, necessary or
both to align with applicable guidelines, policies, rules,
regulations and requirements of the West Virginia Legislature, the
Board of Education and the Department of Education.
(e) Any state code and budget references to the Basic
Skills/Computer Education Program and the SUCCESS Initiative will
be understood to refer to the statewide technology initiative
referenced in this section, commonly referred to as the 21st
Century Tools for 21st Century Schools Technology Initiative.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-10. Foundation allowance to improve instructional programs.
(a) For each school year, beginning on the first day of July,
one thousand nine hundred ninety-eight, and thereafter, the sum of
the allocations shall be the amount appropriated by the Legislature
for those purposes: The total allowance to improve instructional
programs shall be the sum of the following:
(1) For instructional improvement in accordance with county
and school electronic strategic improvement plans required by
section five, article two-e of this chapter, an amount equal to
fifteen percent of the increase in the local share amount for the
next school year above any required allocation pursuant to section
six-b of this article shall be added to the amount of the
appropriation for this purpose for the immediately preceding school
year. The sum of these amounts shall be distributed to the
counties as follows:
(A) One hundred fifty thousand dollars shall be allocated to
each county;
(2) (B) Distribution to the counties of the remainder of these
funds shall be made proportional to the average of each county's
average daily attendance for the preceding year and the county's
second month net enrollment. Moneys allocated by provision of this
section shall be used to improve instructional programs according
to a plan for instructional improvement which the affected county
board shall file with the state board by the first day of August of
each year, to be approved by the state board by the first day of
September of that year if the plan substantially complies with
standards to be adopted by the state board: the county and school
electronic strategic improvement plans required by section five,
article two-e of this chapter and approved by the state board:
Provided, That notwithstanding any other provision of this code to
the contrary, moneys allocated by provision of this section may
also be used in the implementation and maintenance of the uniform integrated regional computer information system.
(3) Up to twenty-five percent of this allocation may be used
to employ professional educators and service personnel in counties
after all applicable provisions of sections four and five of this
article have been fully utilized.
Prior to the use of any funds from this section for personnel
costs, the county board must receive authorization from the State
Superintendent of Schools. The state superintendent shall require
the district county board to demonstrate: (1) The need for the
allocation; (2) efficiency and fiscal responsibility in staffing;
and (3) sharing of services with adjoining counties and the
regional education service agency for that county in the use of the
total local district board budget; and (4) employment of technology
integration specialists to meet the needs for implementation of the
West Virginia 21st Century Strategic Technology Learning Plan.
District County boards shall make application for available funds
for the next fiscal year by the first day of May of each year. On
or before the first day of June, the state superintendent shall
review all applications and notify applying district county boards
of the distribution of the allocation. The funds shall be
distributed during the fiscal year appropriate. The state
superintendent shall require the county board to demonstrate the
need for an allocation for personnel based upon the county's
inability to meet the requirements of state law or state board
policy: Provided, That the funds available for personnel under
this section may not be used to increase the total number of professional noninstructional personnel in the central office
beyond four. The instructional improvement plan shall be made
available for distribution to the public at the office of each
affected county board; plus
(2) For the purposes of the West Virginia 21st Century
Strategic Technology Learning Plan provided for in section seven,
article two-e of this chapter, an amount equal to fifteen percent
of the increase in the local share amount for the next school year
above any required allocation pursuant to section six-b of this
article shall be added to the amount of the appropriation for this
purpose for the immediately preceding school year. The sum of
these amounts shall be allocated to the counties as provided in
section seven, article two-e of this chapter to meet the objectives
of the West Virginia 21st Century Strategic Technology Learning
Plan; plus
(b) (3) An amount not less than the amount required to meet
debt service requirements on any revenue bonds issued prior to the
first day of January, one thousand nine hundred ninety-four, and
the debt service requirements on any revenue bonds issued for the
purpose of refunding revenue bonds issued prior to the first day of
January, one thousand nine hundred ninety-four, shall be paid into
the School Building Capital Improvements Fund created by section
six, article nine-d of this chapter and shall be used solely for
the purposes of that article. The School Building Capital
Improvements Fund shall not be utilized to meet the debt services
requirement on any revenue bonds or revenue refunding bonds for which moneys contained within the School Building Debt Service Fund
have been pledged for repayment pursuant to that section.
(b) When the school improvement bonds secured by funds from
the School Building Capital Improvements Fund mature, the State
Board of Education shall annually deposit an amount equal to
twenty-four million dollars from the funds allocated in this
section into the School Construction Fund created pursuant to the
provisions of section six, article nine-d of this chapter to
continue funding school facility construction and improvements.
(c) Any project funded by the School Building Authority shall
be in accordance with a comprehensive educational facility plan
which must be approved by the state board and the School Building
Authority.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Senate Bill No. 603--A Bill to amend and
reenact §18-2E-7 of the Code of West Virginia, 1931, as amended;
and to amend and reenact §18-9A-10 of said code, all relating to
establishing a 21st Century Tools for 21st Century Schools
Technology Initiative to replace and enhance current technology
programs and provide formula funding therefore; findings; requiring
a West Virginia 21st Century Strategic Technology Learning Plan and
setting forth specific areas it should address; requiring that the
provision of technologies and services to students and teachers be
based on a plan aligned with the goals of the West Virginia 21st Century Strategic Technology Learning Plan; allocation of
technology funds; purchasing; use of technology and technology
infrastructure; including funding stream in public school support
plan from proportion of growth in local share; changing plans used
for the allocation of funds to improve instructional programs; and
including employment of technology integration specialists as
justification prior to authorization to expend certain funds.
Respectfully submitted,
Larry J. Edgell, Chair, Ron Stollings, Mike Hall, Conferees on
the part of the Senate.
Richard Browning, Chair, David G. Perry, Walter E. Duke,
Conferees on the part of the House of Delegates.
On motions of Senator Edgell, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 603, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 603) passed with its conference amended
title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 603) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Bailey, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 657, Requiring State Board of Education
incorporate 21st Century Skills Initiative into certain standards.
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 Senate
Bill No. 657 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 of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §18-2E-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §29A-3B-9 and §29A-3B-10 of said
code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-5. Process for improving education; education standards;
statewide assessment program; accountability measures; Office
of Education Performance Audits; school accreditation and
school system approval; intervention to correct low
performance.
(a) Legislative findings, purpose and intent. -- The
Legislature makes the following findings with respect to the
process for improving education and its purpose and intent in the
enactment of this section:
(1) The process for improving education includes four primary
elements, these being:
(A) Standards which set forth the things knowledge and skills
that students should know and be able to do as the result of a
thorough and efficient education that prepares them for the
twenty-first century, including measurable criteria to evaluate
student performance and progress;
(B) Assessments of student performance and progress toward meeting the standards;
(C) A system for holding schools and school systems
accountable for student performance and progress toward obtaining
the knowledge and skills intrinsic to a high quality education in
the twenty-first century which is delivered in an efficient manner;
and
(D) A method for building the capacity and improving the
efficiency of schools and school systems to improve student
performance and progress.
(2) As the constitutional body charged with the general
supervision of schools as provided by general law, the state board
has the authority and the responsibility to establish the
standards, assess the performance and progress of students against
the standards, hold schools and school systems accountable and
assist schools and school systems to build capacity and improve
efficiency so that the standards are met, including, when
necessary, seeking additional resources in consultation with the
Legislature and the Governor.
(3) As the constitutional body charged with providing for a
thorough and efficient system of schools, the Legislature has the
authority and the responsibility to establish and be engaged
constructively in the determination of the things knowledge and
skills that students should know and be able to do as the result of
a thorough and efficient education. This determination is made by
using the process for improving education to determine when school
improvement is needed, by evaluating the results and the efficiency of the system of schools, by ensuring accountability and by
providing for the necessary capacity and its efficient use.
(4) In consideration of these findings, the purpose of this
section is to establish a process for improving education that
includes the four primary elements as set forth in subdivision (1)
of this subsection to provide assurances that the high-quality
standards are, at a minimum, being met and that a thorough and
efficient system of schools is being provided for all West Virginia
public school students on an equal education opportunity basis.
(5) The intent of the Legislature in enacting this section and
section five-c of this article is to establish a process through
which the Legislature, the Governor and the state board can work in
the spirit of cooperation and collaboration intended in the process
for improving education to consult and examine the performance and
progress of students, schools and school systems and, when
necessary, to consider alternative measures to ensure that all
students continue to receive the thorough and efficient education
to which they are entitled. However, nothing in this section
requires any specific level of funding by the Legislature.
(b) Unified Electronic county and school strategic improvement
plans. -- The state board shall promulgate a rule consistent with
the provisions of this section and in accordance with article
three-b, chapter twenty-nine-a of this code establishing a unified
an electronic county strategic improvement plan for each county
board and a unified an electronic school strategic improvement plan
for each public school in this state. Each respective plan shall be a five-year plan that includes the mission and goals of the
school or school system to improve student, school or school system
performance and progress, as applicable. The strategic plan shall
be revised annually in each area in which the school or system is
below the standard on the annual performance measures. The revised
annual plan also shall identify any deficiency which is reported on
the check lists identified in paragraph (G), subdivision (5),
subsection (j) (l) of this section including any deficit more than
a casual deficit by the county board. The plan shall be revised
when required pursuant to this section to include each annual
performance measure upon which the school or school system fails to
meet the standard for performance and progress, the action to be
taken to meet each measure, a separate time line and a date certain
for meeting each measure, a cost estimate and, when applicable, the
assistance to be provided by the department and other education
agencies to improve student, school or school system performance
and progress to meet the annual performance measure.
The department shall make available to all public schools
through its website or the West Virginia Education Information
System an electronic unified school strategic improvement plan
boilerplate designed for use by all schools to develop a unified an
electronic school strategic improvement plan which incorporates all
required aspects and satisfies all improvement plan requirements of
the No Child Left Behind Act.
(c) High quality education standards and efficiency standards.
-- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code, the state board shall adopt and
periodically review and update high quality education standards for
student, school and school system performance and processes in the
following areas:
(1) Curriculum;
(2) Workplace readiness skills;
(3) Finance;
(4) Transportation;
(5) Special education;
(6) Facilities;
(7) Administrative practices;
(8) Training of county board members and administrators;
(9) Personnel qualifications;
(10) Professional development and evaluation;
(11) Student performance and progress;
(12) School and school system performance and progress;
(13) A code of conduct for students and employees;
(14) Indicators of efficiency; and
(15) Any other areas determined by the state board.
The standards, as applicable, shall incorporate the state's
21st Century Skills Initiative and shall assure that graduates are
prepared for continuing post-secondary education, training and work
and that schools and school systems are making progress toward
achieving the education goals of the state.
(d) Comprehensive statewide student assessment program. -- The
state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code
establishing a comprehensive statewide student assessment program
to assess student performance and progress in grades three through
twelve. The state board may require that student proficiencies be
measured through the ACT EXPLORE and the ACT PLAN assessments or
other comparable assessments, which are approved by the state board
and provided by future vendors. The state board may require that
student proficiencies be measured through the West Virginia writing
assessment at any of the grade levels four, seven and ten
determined by the state board to be appropriate: Provided, That,
effective the first day of July, two thousand eight, the state
board may require that student proficiencies be measured through
the West Virginia writing assessment at any of the grade levels
four, seven and eleven determined by the state board to be
appropriate. The state board may provide through the statewide
assessment program other testing or assessment instruments
applicable to grade levels kindergarten through grade twelve which
may be used by each school upon approval by the school curriculum
team to promote student achievement. The use of assessment results
are subject to the following:
(1) The assessment results for grade levels three through
eight and eleven are the only assessment results which may be used
for determining whether any school or school system has made
adequate yearly progress (AYP);
(2) Only the assessment results in the subject areas of
reading/language arts and mathematics may be used for determining whether a school or school system has made adequate yearly progress
(AYP);
(3) The results of the West Virginia writing assessment, the
ACT EXPLORE assessments and the ACT PLAN assessments may not be
used for determining whether a school or school system has made
adequate yearly progress (AYP);
(4) The results of testing or assessment instruments provided
by the state board for optional use by schools and school systems
to promote student achievement may not be used for determining
whether a school or school system has made adequate yearly progress
(AYP); and
(5) All assessment provisions of the comprehensive statewide
student assessment program in effect for the school year two
thousand six--two thousand seven shall remain in effect until
replaced by the state board rule.
(d) (e) Annual performance measures for Public Law 107-110,
the Elementary and Secondary Education Act of 1965, as amended (No
Child Left Behind Act of 2001). -- The standards shall include
annual measures of student, school and school system performance
and progress for the grade levels and the content areas defined by
the act. The following annual measures of student, school and
school system performance and progress shall be the only measures
for determining school accreditation and school system approval
whether adequately yearly progress under the No Child Left Behind
Act has been achieved:
(1) The acquisition of student proficiencies as indicated by student performance and progress in grades three through eight,
inclusive, and grade ten shall be measured by a uniform statewide
assessment program. The indicators for student progress in reading
and mathematics in grades kindergarten through second grade shall
be measured by the informal assessment established by the West
Virginia Department of Education or other assessments, as
determined by the school curriculum team. If the school fails to
meet adequate yearly progress in reading or mathematics for two
consecutive years, the county superintendent, the school principal
and the school curriculum team shall decide whether a different
assessment should be used to verify that benchmarks are being met.
If the county superintendent, the school principal and the school
curriculum team differ on what assessment is used, then each entity
shall have one vote. Furthermore, the state board may require that
student proficiencies be measured through the West Virginia writing
assessment at any of the grades that are determined by the state
board to be appropriate. It is the intent of the Legislature that
in the future a grade eleven uniform statewide assessment be
administered in lieu of the grade ten uniform statewide assessment.
The state board shall perform an analysis of the costs and the
benefits of administering the grade eleven uniform statewide
assessment in lieu of the grade ten uniform statewide assessment.
The analysis shall include a review of the need for end of course
exams in grades nine through twelve. The state board shall report
the results of the analysis to the legislative oversight commission
on education accountability. The state board may provide other testing or assessment instruments applicable to grade levels
kindergarten through grade twelve through the statewide assessment
program for optional use by each school as determined by the school
curriculum team to measure student performance and progress; on the
required accountability assessments at the grade levels and content
areas as required by the act subject to the limitations set forth
in subsection (d) of this section;
(2) The student participation rate in the uniform statewide
assessment must be at least ninety-five percent or the average of
the participation rate for the current and the preceding two years
is ninety-five percent for the school, county and state;
(2) (3) Only for schools that do not include grade twelve, the
school attendance rate which shall be no less than ninety percent
in attendance for the school, county and state. The following
absences shall be excluded:
(A) Student absences excused in accordance with the state
board rule promulgated pursuant to section four, article eight of
this chapter;
(B) Students not in attendance due to disciplinary measures;
and
(C) Absent students for whom the attendance director has
pursued judicial remedies compelling attendance to the extent of
his or her authority; and
(3) (4) The high school graduation rate which shall be no less
than eighty percent for the school, county and state; or if the
high school graduation rate is less than eighty percent, the high school graduation rate shall be higher than the high school
graduation rate of the preceding year as determined from
information on the West Virginia Education Information System on
the fifteenth day of August.
(f) State annual performance measures for school and school
system accreditation. -- The state board shall establish a system
to assess and weigh annual performance measures for state
accreditation of schools and school systems in a manner that gives
credit or points such as an index to prevent any one measure alone
from causing a school to achieve less than full accreditation
status or a school system from achieving less than full approval
status: Provided, That a school or school system that achieves
adequate yearly progress is eligible for no less than full
accreditation or approval status, as applicable, and the system
established pursuant to this subsection shall only apply to schools
and school systems that do not achieve adequate yearly progress.
The following types of measures, as may be appropriate at the
various programmatic levels, may be approved by the state board for
the school and school system accreditation:
(1) The acquisition of student proficiencies as indicated by
student performance and progress on the uniform statewide
assessment program at the grade levels as provided in subsection
(d) of this section. The state board may approve providing bonus
points or credits for students scoring at or above mastery and
distinguished levels;
(2) Writing assessment results in grades tested;
(3) School attendance rates;
(4) Percentage of courses taught by highly qualified teachers;
(5) Percentage of students scoring at benchmarks on the
currently tested ACT EXPLORE and ACT PLAN assessments or other
comparable assessments, which are approved by the state board and
provided by future vendors;
(6) Graduation rates;
(7) Job placement rates for vocational programs;
(8) Percent of students passing end-of-course career/technical
tests;
(9) Percent of students not requiring college remediation
classes; and
(10) Bonus points or credits for sub-group improvement,
advanced placement percentages, dual credit completers and
international baccalaureate completers.
(e) (g) Indicators of exemplary performance and progress. --
The standards shall include indicators of exemplary student, school
and school system performance and progress. The indicators of
exemplary student, school and school system performance and
progress shall be used only as indicators for determining whether
accredited and approved schools and school systems should be
granted exemplary status. These indicators shall include, but are
not limited to, the following:
(1) The percentage of graduates who declare their intent to
enroll in college and other post-secondary education and training
following high school graduation;
(2) The percentage of graduates who receive additional
certification of their skills, competence and readiness for
college, other post-secondary education or employment above the
level required for graduation; and
(3) The percentage of students who successfully complete
advanced placement, dual credit and honors classes.
(f) (h) Indicators of efficiency. -- In accordance with the
provisions of article three-b, chapter twenty-nine-a of this code,
the state board shall adopt by rule and periodically review and
update indicators of efficiency for use by the appropriate
divisions within the department to ensure efficient management and
use of resources in the public schools in the following areas:
(1) Curriculum delivery including, but not limited to, the use
of distance learning;
(2) Transportation;
(3) Facilities;
(4) Administrative practices;
(5) Personnel;
(6) Utilization Use of regional education service agency
programs and services, including programs and services that may be
established by their assigned regional education service agency, or
other regional services that may be initiated between and among
participating county boards; and
(7) Any other indicators as determined by the state board.
(g) (i) Assessment and accountability of school and school
system performance and processes. -- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code,
the state board shall establish by rule a system of education
performance audits which measures the quality of education and the
preparation of students based on the annual measures of student,
school and school system performance and progress. The system of
education performance audits shall provide information to the state
board, the Legislature and the Governor, individually and
collectively as the Process for Improving Education Council, upon
which they may determine whether a thorough and efficient system of
schools is being provided. The system of education performance
audits shall include:
(1) The assessment of student, school and school system
performance and progress based on the annual measures set forth in
subsection (d) of this section;
(2) The evaluation of records, reports and other information
collected by the department upon which the quality of education and
compliance with statutes, policies and standards may be determined;
(3) The review of school and school system unified electronic
strategic improvement plans; and
(4) The on-site review of the processes in place in schools
and school systems to enable school and school system performance
and progress and compliance with the standards.
(h) (j) Uses of school and school system assessment
information. - The state board and the Process for Improving
Education Council established pursuant to section five-c of this
article shall use information from the system of education performance audits to assist them in ensuring that a thorough and
efficient system of schools is being provided and to improve
student, school and school system performance and progress.
Information from the system of education performance audits further
shall be used by the state board for these purposes, including, but
not limited to, the following:
(1) Determining school accreditation and school system
approval status;
(2) Holding schools and school systems accountable for the
efficient use of existing resources to meet or exceed the
standards; and
(3) Targeting additional resources when necessary to improve
performance and progress.
The state board shall make accreditation information available
to the Legislature, the Governor, the general public and to any
individual who requests the information, subject to the provisions
of any act or rule restricting the release of information.
(i) (k) Early detection and intervention programs. -- Based on
the assessment of student, school and school system performance and
progress, the state board shall establish early detection and
intervention programs using the available resources of the
Department of Education, the regional education service agencies,
the Center for Professional Development and the Principals Academy,
as appropriate, to assist underachieving schools and school systems
to improve performance before conditions become so grave as to
warrant more substantive state intervention. Assistance shall include, but is not limited to, providing additional technical
assistance and programmatic, professional staff development,
providing monetary, staffing and other resources where appropriate,
and, if necessary, making appropriate recommendations to the
Process for Improving Education Council.
(j) (l) Office of Education Performance Audits. -
(1) To assist the state board and the Process for Improving
Education Council in the operation of a system of education
performance audits, the state board shall establish an Office of
Education Performance Audits consistent with the provisions of this
section. The Office of Education Performance Audits shall be
operated under the direction of the state board independently of
the functions and supervision of the State Department of Education
and state superintendent. The Office of Education Performance
Audits shall report directly to and be responsible to the state
board and the Process for Improving Education Council created in
section five-c of this article in carrying out its duties under the
provisions of this section.
(2) The office shall be headed by a director who shall be
appointed by the state board and who shall serve at the will and
pleasure of the state board. The annual salary of the director
shall be set by the state board and may not exceed eighty percent
of the salary cap of the State Superintendent of Schools.
(3) The state board shall organize and sufficiently staff the
office to fulfill the duties assigned to it by law and by the state
board. Employees of the State Department of Education who are transferred to the Office of Education Performance Audits shall
retain their benefits and seniority status with the Department of
Education.
(4) Under the direction of the state board, the Office of
Education Performance Audits shall receive from the West Virginia
Education Information System staff research and analysis data on
the performance and progress of students, schools and school
systems, and shall receive assistance, as determined by the state
board, from staff at the State Department of Education, the
regional education service agencies, the Center for Professional
Development, the Principals Academy and the state School Building
Authority to carry out the duties assigned to the office.
(5) In addition to other duties which may be assigned to it by
the state board or by statute, the Office of Education Performance
Audits also shall:
(A) Assure that all statewide assessments of student
performance used as annual performance measures are secure as
required in section one-a of this article;
(B) Administer all accountability measures as assigned by the
state board, including, but not limited to, the following:
(i) Processes for the accreditation of schools and the
approval of school systems; and
(ii) Recommendations to the state board on appropriate action,
including, but not limited to, accreditation and approval action;
(C) Determine, in conjunction with the assessment and
accountability processes, what capacity may be needed by schools and school systems to meet the standards established by the state
board and recommend to the state board and the Process for
Improving Education Council, plans to establish those needed
capacities;
(D) Determine, in conjunction with the assessment and
accountability processes, whether statewide system deficiencies
exist in the capacity of schools and school systems to meet the
standards established by the state board, including the
identification of trends and the need for continuing improvements
in education, and report those deficiencies and trends to the state
board and the Process for Improving Education Council;
(E) Determine, in conjunction with the assessment and
accountability processes, staff development needs of schools and
school systems to meet the standards established by the state board
and make recommendations to the state board, the Process for
Improving Education Council, the Center for Professional
Development, the regional education service agencies, the Higher
Education Policy Commission and the county boards;
(F) Identify, in conjunction with the assessment and
accountability processes, exemplary schools and school systems and
best practices that improve student, school and school system
performance and make recommendations to the state board and the
Process for Improving Education Council for recognizing and
rewarding exemplary schools and school systems and promoting the
use of best practices. The state board shall provide information
on best practices to county school systems and shall use information identified through the assessment and accountability
processes to select schools of excellence; and
(G) Develop reporting formats, such as check lists, which
shall be used by the appropriate administrative personnel in
schools and school systems to document compliance with various of
the applicable laws, policies and process standards as considered
appropriate and approved by the state board, including, but not
limited to, the following:
(i) The use of a policy for the evaluation of all school
personnel that meets the requirements of sections twelve and
twelve-a, article two, chapter eighteen-a of this code;
(ii) The participation of students in appropriate physical
assessments as determined by the state board, which assessment may
not be used as a part of the assessment and accountability system;
(iii) The appropriate licensure of school personnel; and
(iv) The school provides multicultural activities.
Information contained in the reporting formats is subject to
examination during an on-site review to determine compliance with
laws, policies and standards. Intentional and grossly negligent
reporting of false information are grounds for dismissal.
(k) (m) On-site reviews. -
(1) The system of education performance audits shall include
on-site reviews of schools and school systems which shall be
conducted only at the specific direction of the state board upon
its determination that the performance and progress of the school
or school system are persistently below standard or that other circumstances exist that warrant an on-site review. Any discussion
by the state board of schools to be subject to an on-site review or
dates for which on-site reviews will be conducted may be held in
executive session and is not subject to the provisions of article
nine-a, chapter six of this code relating to open governmental
proceedings. An on-site review shall be conducted by the Office of
Education Performance Audits of a school or school system for the
purpose of investigating the reasons for performance and progress
that are persistently below standard and making recommendations to
the school and school system, as appropriate, and to the state
board on such measures as it considers necessary to improve
performance and progress to meet the standard. The investigation
may include, but is not limited to, the following:
(A) Verifying data reported by the school or county board;
(B) Examining compliance with the laws and policies affecting
student, school and school system performance and progress;
(C) Evaluating the effectiveness and implementation status of
school and school system unified electronic strategic improvement
plans;
(D) Investigating official complaints submitted to the state
board that allege serious impairments in the quality of education
in schools or school systems;
(E) Investigating official complaints submitted to the state
board that allege that a school or county board is in violation of
policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and inspections have been conducted by the appropriate agencies,
including, but not limited to, the State Fire Marshal, the Health
Department, the School Building Authority and the responsible
divisions within the Department of Education, and whether noted
deficiencies have been or are in the process of being corrected.
The Office of Education Performance Audits may not conduct a
duplicate review or inspection of any compliance reviews or
inspections conducted by the department or its agents or other duly
authorized agencies of the state, nor may it mandate more stringent
compliance measures.
(2) The Director of the Office of Education Performance Audits
shall notify the county superintendent of schools five school days
prior to commencing an on-site review of the county school system
and shall notify both the county superintendent and the principal
five school days prior to commencing an on-site review of an
individual school: Provided, That the state board may direct the
Office of Education Performance Audits to conduct an unannounced
on-site review of a school or school system if the state board
believes circumstances warrant an unannounced on-site review.
(3) The Office of Education Performance Audits shall conduct
on-site reviews which are limited in scope to specific areas in
which performance and progress are persistently below standard as
determined by the state board unless specifically directed by the
state board to conduct a review which covers additional areas.
(4) An on-site review of a school or school system shall
include a person or persons from the Department of Education or a public education agency in the state who has expert knowledge and
experience in the area or areas to be reviewed and who has been
trained and designated by the state board to perform such
functions. If the size of the school or school system and issues
being reviewed necessitate the use of an on-site review team or
teams, the person or persons designated by the state board shall
advise and assist the director to appoint the team or teams. The
person or persons designated by the state board shall be the team
leaders.
The persons designated by the state board shall be responsible
for completing the report on the findings and recommendations of
the on-site review in their area of expertise. It is the intent of
the Legislature that the persons designated by the state board
participate in all on-site reviews that involve their area of
expertise, to the extent practicable, so that the on-site review
process will evaluate compliance with the standards in a uniform,
consistent and expert manner.
(5) The Office of Education Performance Audits shall reimburse
a county board for the costs of substitutes required to replace
county board employees while they are serving on a review team.
(6) At the conclusion of an on-site review of a school system,
the director and team leaders shall hold an exit conference with
the superintendent and shall provide an opportunity for principals
to be present for at least the portion of the conference pertaining
to their respective schools. In the case of an on-site review of
a school, the exit conference shall be held with the principal and curriculum team of the school and the superintendent shall be
provided the opportunity to be present. The purpose of the exit
conference is to review the initial findings of the on-site review,
clarify and correct any inaccuracies and allow the opportunity for
dialogue between the reviewers and the school or school system to
promote a better understanding of the findings.
(7) The Office of Education Performance Audits shall report
the findings of an on-site review to the county superintendent and
the principals whose schools were reviewed within thirty days
following the conclusion of the on-site review. The Office of
Education Performance Audits shall report the findings of the
on-site review to the state board within forty-five days after the
conclusion of the on-site review. A copy of the report shall be
provided to the Process for Improving Education Council at its
request. A school or county that believes one or more findings of
a review are clearly inaccurate, incomplete or misleading,
misrepresent or fail to reflect the true quality of education in
the school or county, or address issues unrelated to the health,
safety and welfare of students and the quality of education, may
appeal to the state board for removal of the findings. The state
board shall establish a process for it to receive, review and act
upon the appeals. The state board shall report to the Legislative
Oversight Commission on Education Accountability during its July
interim meetings, or as soon thereafter as practical, on each
appeal during the preceding school year.
(8) The Legislature finds that the accountability and oversight of the following activities and programmatic areas in the
public schools is controlled through other mechanisms and that
additional accountability and oversight are not only unnecessary
but counterproductive in distracting necessary resources from
teaching and learning. Therefore, notwithstanding any other
provision of this section to the contrary, the following activities
and programmatic areas are not subject to review by the Office of
Education Performance Audits:
(A) Work-based learning;
(B) Use of advisory councils;
(C) Program accreditation and student credentials;
(D) Student transition plans;
(E) Graduate assessment form;
(F) Casual deficit;
(G) Accounting practices;
(H) Transportation services;
(I) Special education services;
(J) Safe, healthy and accessible facilities;
(K) Health services;
(L) Attendance director;
(M) Business/community partnerships;
(N) Pupil-teacher ratio/split grade classes;
(O) Local school improvement council, faculty senate, student
assistance team and curriculum team;
(P) Planning and lunch periods;
(Q) Skill improvement program;
(R) Certificate of proficiency;
(S) Training of county board members;
(T) Excellence in job performance;
(U) Staff development; and
(V) Preventive discipline, character education and student and
parental involvement.
(l) (n) School accreditation. - The state board annually shall
review the information from the system of education performance
audits submitted for each school and shall issue to every school
one of the following approval levels: Exemplary accreditation
status, distinction accreditation status, full accreditation
status, temporary accreditation status, conditional accreditation
status or seriously impaired low-performing accreditation status.
(1) Full accreditation status shall be given to a school when
the school's performance and progress meet or exceed the standards
adopted by the state board pursuant to subsection (d) subsection
(e) or (f), as applicable, of this section and it does not have any
deficiencies which would endanger student health or safety or other
extraordinary circumstances as defined by the state board. A
school that meets or exceeds the performance and progress standards
but has the other deficiencies shall remain on full accreditation
status for the remainder of the accreditation period and shall have
an opportunity to correct those deficiencies, notwithstanding other
provisions of this subsection.
(2) Temporary accreditation status shall be given to a school
when the school's performance and progress are below the level required for full accreditation status. Whenever a school is given
temporary accreditation status, the county board shall ensure that
the school's unified electronic strategic improvement plan is
revised in accordance with subsection (b) of this section to
increase the performance and progress of the school to a full
accreditation status level. The revised plan shall be submitted to
the state board for approval.
(3) Conditional accreditation status shall be given to a
school when the school's performance and progress are below the
level required for full accreditation, but the school's unified
electronic strategic improvement plan meets the following criteria:
(A) The plan has been revised to improve performance and
progress on the standard or standards by a date or dates certain;
(B) The plan has been approved by the state board; and
(C) The school is meeting the objectives and time line
specified in the revised plan.
(4) Exemplary accreditation status shall be given to a school
when the school's performance and progress meet or substantially
exceed the standards adopted by the state board pursuant to
subsections (d) and (e) (f) and (g) of this section. The state
board shall promulgate legislative rules in accordance with the
provisions of article three-b, chapter twenty-nine-a of this code
designated to establish standards of performance and progress to
identify exemplary schools.
(5) Distinction accreditation status shall be given to a
school when the school's performance and progress exceed the standards adopted by the state board. The state board shall
promulgate legislative rules in accordance with the provisions of
article three-b, chapter twenty-nine-a of this code establishing
standards of performance and progress to identify schools of
distinction.
(5) (6) Seriously impaired Low-performing accreditation status
shall be given to a school whenever extraordinary circumstances
exist as defined by the state board.
(A) These circumstances shall include, but are not limited to,
the following:
(i) The failure of a school on temporary accreditation status
to obtain approval of its revised unified electronic school
strategic improvement plan within a reasonable time period as
defined by the state board;
(ii) The failure of a school on conditional accreditation
status to meet the objectives and time line of its revised unified
electronic school strategic improvement plan; or
(iii) The failure of a school to meet a standard by the date
specified in the revised plan.
(B) Whenever the state board determines that the quality of
education in a school is seriously impaired low performing, the
state board shall appoint a team of improvement consultants to make
recommendations within sixty days of appointment for correction of
the impairment low performance. When the state board approves the
recommendations, they shall be communicated to the county board.
If progress in correcting the impairment low performance as determined by the state board is not made within six months from
the time the county board receives the recommendations, the state
board shall place the county board on temporary approval status and
provide consultation and assistance to the county board to assist
it in the following areas:
(i) Improving personnel management;
(ii) Establishing more efficient financial management
practices;
(iii) Improving instructional programs and rules; or
(iv) Making any other improvements that are necessary to
correct the impairment low performance.
(C) If the impairment low performance is not corrected by a
date certain as set by the state board:
(i) The state board shall appoint a monitor who shall be paid
at county expense to cause improvements to be made at the school to
bring it to full accreditation status within a reasonable time
period as determined by the state board. The monitor's work
location shall be at the school and the monitor shall work
collaboratively with the principal. The monitor shall, at a
minimum, report monthly to the state board on the measures being
taken to improve the school's performance and the progress being
made. The reports may include requests for additional assistance
and recommendations required in the judgment of the monitor to
improve the school's performance, including, but not limited to,
the need for targeting resources strategically to eliminate
deficiencies;
(ii) The state board may make a determination, in its sole
judgment, that the improvements necessary to provide a thorough and
efficient education to the students at the school cannot be made
without additional targeted resources, in which case, it shall
establish a plan in consultation with the county board that
includes targeted resources from sources under the control of the
state board and the county board to accomplish the needed
improvements. Nothing in this subsection shall be construed to
allow a change in personnel at the school to improve school
performance and progress, except as provided by law;
(iii) If the impairment low performance is not corrected
within one year after the appointment of a monitor, the state board
may make a determination, in its sole judgment, that continuing a
monitor arrangement is not sufficient to correct the impairment low
performance and may intervene in the operation of the school to
cause improvements to be made that will provide assurances that a
thorough and efficient system of schools will be provided. This
intervention may include, but is not limited to, establishing
instructional programs, taking such direct action as may be
necessary to correct the impairments low performance, declaring the
position of principal is vacant and assigning a principal for the
school who shall serve at the will and pleasure of and, under the
sole supervision of, the state board: Provided, That prior to
declaring that the position of the principal is vacant, the state
board must make a determination that all other resources needed to
correct the impairment low performance are present at the school. If the principal who was removed elects not to remain an employee
of the county board, then the principal assigned by the state board
shall be paid by the county board. If the principal who was
removed elects to remain an employee of the county board, then the
following procedure applies:
(I) The principal assigned by the state board shall be paid by
the state board until the next school term, at which time the
principal assigned by the state board shall be paid by the county
board;
(II) The principal who was removed shall be eligible for all
positions in the county, including teaching positions, for which
the principal is certified, by either being placed on the transfer
list in accordance with section seven, article two, chapter
eighteen-a of this code, or by being placed on the preferred recall
list in accordance with section seven-a, article four of said
chapter; and
(III) The principal who was removed shall be paid by the
county board and may be assigned to administrative duties, without
the county board being required to post that position until the end
of the school term;
(6) The county board shall take no action nor refuse any
action if the effect would be to impair further the school in which
the state board has intervened.
(7) The state board may appoint a monitor pursuant to the
provisions of this subsection to assist the school principal after
intervention in the operation of a school is completed.
(m) (o) Transfers from seriously impaired low-performing
schools. - Whenever a school is determined to be seriously impaired
low performing and fails to improve its status within one year,
following state intervention in the operation of the school to
correct the impairment low performance, any student attending the
school may transfer once to the nearest fully accredited school in
the county, subject to approval of the fully accredited school and
at the expense of the school from which the student transferred.
(n) (p) School system approval. -- The state board annually
shall review the information submitted for each school system from
the system of education performance audits and issue one of the
following approval levels to each county board: Full approval,
temporary approval, conditional approval or nonapproval.
(1) Full approval shall be given to a county board whose
schools have all been given full, temporary or conditional
accreditation status and which does not have any deficiencies which
would endanger student health or safety or other extraordinary
circumstances as defined by the state board. A fully approved
school system in which other deficiencies are discovered shall
remain on full accreditation status for the remainder of the
approval period and shall have an opportunity to correct those
deficiencies, notwithstanding other provisions of this subsection.
(2) Temporary approval shall be given to a county board whose
education system is below the level required for full approval.
Whenever a county board is given temporary approval status, the
county board shall revise its unified electronic county strategic improvement plan in accordance with subsection (b) of this section
to increase the performance and progress of the school system to a
full approval status level. The revised plan shall be submitted to
the state board for approval.
(3) Conditional approval shall be given to a county board
whose education system is below the level required for full
approval, but whose unified electronic county strategic improvement
plan meets the following criteria:
(i) The plan has been revised in accordance with subsection
(b) of this section;
(ii) The plan has been approved by the state board; and
(iii) The county board is meeting the objectives and time line
specified in the revised plan.
(4) Nonapproval status shall be given to a county board which
fails to submit and gain approval for its unified electronic county
strategic improvement plan or revised unified electronic county
strategic improvement plan within a reasonable time period as
defined by the state board or which fails to meet the objectives
and time line of its revised unified electronic county strategic
improvement plan or fails to achieve full approval by the date
specified in the revised plan.
(A) The state board shall establish and adopt additional
standards to identify school systems in which the program may be
nonapproved and the state board may issue nonapproval status
whenever extraordinary circumstances exist as defined by the state
board.
(B) Whenever a county board has more than a casual deficit, as
defined in section one, article one of this chapter, the county
board shall submit a plan to the state board specifying the county
board's strategy for eliminating the casual deficit. The state
board either shall approve or reject the plan. If the plan is
rejected, the state board shall communicate to the county board the
reason or reasons for the rejection of the plan. The county board
may resubmit the plan any number of times. However, any county
board that fails to submit a plan and gain approval for the plan
from the state board before the end of the fiscal year after a
deficit greater than a casual deficit occurred or any county board
which, in the opinion of the state board, fails to comply with an
approved plan may be designated as having nonapproval status.
(C) Whenever nonapproval status is given to a school system,
the state board shall declare a state of emergency in the school
system and shall appoint a team of improvement consultants to make
recommendations within sixty days of appointment for correcting the
emergency. When the state board approves the recommendations, they
shall be communicated to the county board. If progress in
correcting the emergency, as determined by the state board, is not
made within six months from the time the county board receives the
recommendations, the state board shall intervene in the operation
of the school system to cause improvements to be made that will
provide assurances that a thorough and efficient system of schools
will be provided. This intervention may include, but is not
limited to, the following:
(i) Limiting the authority of the county superintendent and
county board as to the expenditure of funds, the employment and
dismissal of personnel, the establishment and operation of the
school calendar, the establishment of instructional programs and
rules and any other areas designated by the state board by rule,
which may include delegating decision-making authority regarding
these matters to the state superintendent;
(ii) Declaring that the office of the county superintendent is
vacant;
(iii) Delegating to the state superintendent both the
authority to conduct hearings on personnel matters and school
closure or consolidation matters and, subsequently, to render the
resulting decisions and the authority to appoint a designee for the
limited purpose of conducting hearings while reserving to the state
superintendent the authority to render the resulting decisions;
(iv) Functioning in lieu of the county board of education in
a transfer, sale, purchase or other transaction regarding real
property; and
(v) Taking any direct action necessary to correct the
emergency including, but not limited to, the following:
(I) Delegating to the state superintendent the authority to
replace administrators and principals in low-performing schools and
to transfer them into alternate professional positions within the
county at his or her discretion; and
(II) Delegating to the state superintendent the authority to
fill positions of administrators and principals with individuals determined by the state superintendent to be the most qualified for
the positions. Any authority related to intervention in the
operation of a county board granted under this paragraph is not
subject to the provisions of article four, chapter eighteen-a of
this code;
(o) (q) Notwithstanding any other provision of this section,
the state board may intervene immediately in the operation of the
county school system with all the powers, duties and
responsibilities contained in subsection (n) (p) of this section,
if the state board finds the following:
(1) That the conditions precedent to intervention exist as
provided in this section; and that delaying intervention for any
period of time would not be in the best interests of the students
of the county school system; or
(2) That the conditions precedent to intervention exist as
provided in this section and that the state board had previously
intervened in the operation of the same school system and had
concluded that intervention within the preceding five years.
(p) (r) Capacity. -- The process for improving education
includes a process for targeting resources strategically to improve
the teaching and learning process. Development of unified
electronic school and school system strategic improvement plans,
pursuant to subsection (b) of this section, is intended, in part,
to provide mechanisms to target resources strategically to the
teaching and learning process to improve student, school and school
system performance. When deficiencies are detected through the assessment and accountability processes, the revision and approval
of school and school system unified electronic strategic
improvement plans shall ensure that schools and school systems are
efficiently using existing resources to correct the deficiencies.
When the state board determines that schools and school systems do
not have the capacity to correct deficiencies, the state board
shall work with the county board to develop or secure the resources
necessary to increase the capacity of schools and school systems to
meet the standards and, when necessary, seek additional resources
in consultation with the Legislature and the Governor.
The state board shall recommend to the appropriate body
including, but not limited to, the Process for Improving Education
Council, the Legislature, county boards, schools and communities
methods for targeting resources strategically to eliminate
deficiencies identified in the assessment and accountability
processes. When making determinations on recommendations, the
state board shall include, but is not limited to, the following
methods:
(1) Examining reports and unified electronic strategic
improvement plans regarding the performance and progress of
students, schools and school systems relative to the standards and
identifying the areas in which improvement is needed;
(2) Determining the areas of weakness and of ineffectiveness
that appear to have contributed to the substandard performance and
progress of students or the deficiencies of the school or school
system;
(3) Determining the areas of strength that appear to have
contributed to exceptional student, school and school system
performance and progress and promoting their emulation throughout
the system;
(4) Requesting technical assistance from the School Building
Authority in assessing or designing comprehensive educational
facilities plans;
(5) Recommending priority funding from the School Building
Authority based on identified needs;
(6) Requesting special staff development programs from the
Center for Professional Development, the Principals Academy, higher
education, regional education service agencies and county boards
based on identified needs;
(7) Submitting requests to the Legislature for appropriations
to meet the identified needs for improving education;
(8) Directing county boards to target their funds
strategically toward alleviating deficiencies;
(9) Ensuring that the need for facilities in counties with
increased enrollment are appropriately reflected and recommended
for funding;
(10) Ensuring that the appropriate person or entity is held
accountable for eliminating deficiencies; and
(11) Ensuring that the needed capacity is available from the
state and local level to assist the school or school system in
achieving the standards and alleviating the deficiencies.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 3B. STATE BOARD OF EDUCATION RULEMAKING.
§29A-3B-9. Submission of legislative rules to the Legislative
Oversight Commission on Education Accountability.
(a) When the board proposes a legislative rule, the board
shall submit the following to the Legislative Oversight Commission
on Education Accountability: at its offices or at a regular meeting
of the commission: twenty copies of: (1) The full text of the
legislative rule as proposed by the board and filed with the office
of the Secretary of State, with new language underlined and with
language to be deleted from any existing rule stricken through but
clearly legible; (2) a brief summary of the content of the
legislative rule and a description and a copy of any existing rule
which the agency proposes to amend or repeal; (3) a statement of
the circumstances which require the rule; (4) a fiscal note
containing all information included in a fiscal note for either
house of the Legislature and a statement of the economic impact of
the rule on the state or its residents; and (5) any other
information which the commission may request or which may be
required by law.
(b) At its discretion, the board may meet the filing
requirement of subsection (a) of this section using either of the
following methods:
(1) By submitting twenty copies of the proposed rule to the
Legislative Oversight Commission on Education Accountability at its
offices or at a regular meeting of the commission; or
(2) By submitting the proposed rule electronically to the Legislative Oversight Commission on Education Accountability.
Proposed rules submitted electronically shall be transmitted in a
timely manner, shall contain all required information and shall be
compatible with computer applications in use by the Legislative
Oversight Commission on Education Accountability.
(b) (c) The commission shall review each proposed legislative
rule and, in its discretion, may hold public hearings thereon.
Such review shall include, but not be limited to, a determination
of:
(1) Whether the board has exceeded the scope of its statutory
authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity
with the legislative intent of the statute which the rule is
intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any
other provision of this code or with any other rule adopted by the
same or a different agency;
(4) Whether the proposed legislative rule is necessary to
fully accomplish the objectives of the statute under which the
proposed rule was promulgated;
(5) Whether the proposed legislative rule is reasonable,
especially as it affects the convenience of the general public or
of persons particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was promulgated in compliance with the requirements of this article and with any
requirements imposed by any other provision of this code.
(c) (d) After reviewing the legislative rule, the commission
may recommend to the board any changes needed to comply with the
legislative intent of the statute upon which the rule is based or
otherwise to modify the activity subject to the rule, or may make
any other recommendations to the board as it considers appropriate.
(d) (e) When the board finally adopts a legislative rule, the
board shall submit to the Legislative Oversight Commission on
Education Accountability at its offices or at a regular meeting of
the commission six copies of the rule as adopted by the board. The
board, at its discretion, may meet the filing requirement contained
in this subsection by submitting the legislative rule in electronic
format to the Legislative Oversight Commission on Education
Accountability. Rules submitted electronically shall be
transmitted in a timely manner and shall be compatible with
computer applications in use by the Legislative Oversight
Commission on Education Accountability.
(f) After reviewing the legislative rule, the commission may
recommend to the Legislature any statutory changes needed to
clarify the legislative intent of the statute upon which the rule
is based or may make any other recommendations to the Legislature
as it considers appropriate.
§29A-3B-10. Emergency legislative rules; procedure for
promulgation; definition.
(a) The board may, without hearing, find that an emergency exists requiring that emergency rules be promulgated and promulgate
the same in accordance with this section. Such emergency rules,
together with a statement of the facts and circumstances
constituting the emergency, shall be filed in the State Register
and shall become effective immediately upon such filing. Such
emergency rules may adopt, amend or repeal any legislative rule,
but the circumstances constituting the emergency requiring such
adoption, amendment or repeal shall be stated with particularity
and be subject to de novo review by any court having original
jurisdiction of an action challenging their validity.
(b) Ten The board shall file ten copies of the rules and of
the required statement shall be filed forthwith with the
Legislative Oversight Commission on Education Accountability. At
its discretion, the board may meet the filing requirement contained
in this subsection by submitting the emergency rule electronically
to the Legislative Oversight Commission on Education
Accountability. Proposed rules submitted electronically shall be
transmitted in a timely manner, shall contain all required
information and shall be compatible with computer applications in
use by the Legislative Oversight Commission on Education
Accountability.
(c) An emergency rule shall be effective for not more than
fifteen months and shall expire earlier if any of the following
occurs:
(1) The board has not previously filed and fails to file a
notice of public hearing on the proposed rule within sixty days of the date the proposed rule was filed as an emergency rule; in which
case the emergency rule expires on the sixty-first day.
(2) The board has not previously filed and fails to file the
proposed rule with the Legislative Oversight Commission on
Education Accountability within one hundred eighty days of the date
the proposed rule was filed as an emergency rule; in which case the
emergency rule expires on the one hundred eighty-first day.
(3) The board adopts a legislative rule dealing with
substantially the same subject matter since such emergency rule was
first promulgated, and in which case the emergency rule expires on
the date the authorized rule is made effective.
(b) (d) Any amendment to an emergency rule made by the board
shall be filed in the State Register and does not constitute a new
emergency rule for the purpose of acquiring additional time or
avoiding the expiration dates in subdivision (1), (2) or (3),
subsection (a) (c) of this section.
(c) (e) Once an emergency rule expires due to the conclusion
of fifteen months or due to the effect of subdivision (1), (2) or
(3), subsection (a) (c) of this section, the board may not refile
the same or similar rule as an emergency rule.
(d) (f) Emergency legislative rules currently in effect under
the prior provisions of this section may be refiled under the
provisions of this section.
(e) (g) The provision of this section shall not be used to
avoid or evade any provision of this article or any other
provisions of this code, including any provisions for legislative review of proposed rules. Any emergency rule promulgated for any
such purpose may be contested in a judicial proceeding before a
court of competent jurisdiction.
(f) (h) The Legislative Oversight Commission on Education
Accountability may review any emergency rule to determine: (1)
Whether the board has exceeded the scope of its statutory authority
in promulgating the emergency rule; (2) whether there exists an
emergency justifying the promulgation of such rule; and (3) whether
the rule was promulgated in compliance with the requirements and
prohibitions contained in this section. The commission may
recommend to the board, the Legislature or the Secretary of State
such action as it may deem proper.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Senate Bill No. 657--A Bill to amend and reenact §18-2E-5
of the Code of West Virginia, 1931, as amended; and to amend and
reenact §29A-3B-9 and §29A-3B-10 of said code, all relating to
public education generally; standards, assessment and
accountability for student performance and progress; requiring 21st
Century Skills Initiative incorporation into standards; renaming
unified improvement plans as strategic improvement plans; revising
uniform statewide student assessment program; providing annual
performance measures for the No Child Left Behind Act of 2001;
providing state annual performance measures; providing additional
category of school accreditation and renaming existing category; revising criteria for accreditation status; providing for appeal of
on-site findings and report to oversight commission; removing
obsolete provisions; and allowing electronic filing of state board
rules with the Legislative Oversight Commission on Education
Accountability.
Respectfully submitted,
Billy Wayne Bailey, Jr., Chair, C. Randy White, Jesse O.
Guills, Conferees on the part of the Senate.
Stan Shaver, Chair, Dave Pethtel, Linda Sumner, Conferees on
the part of the House of Delegates.
Senator Bailey, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Bailey, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 657, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 657) passed with its conference amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 657) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2955, Continuing a flat-rate
excise tax on motor fuel at $.205.
Whereupon,
Senator Helmick, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2955, Continuing a flat-rate
excise tax on motor fuel at $.205.
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 Engrossed
Committee Substitute for House Bill No. 2955 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 Senate on pages eight through ten, by striking
out all of section forty-seven, and that the Senate and House agree
to an amendment as follows:
§11-14C-47. Disposition of tax collected; dedicated receipts;
reports.
(a) There is hereby created and established in the State
Treasury a special revolving fund to be known and designated as the
Motor Fuel General Tax Administration Fund. The commissioner is
authorized to retain one half of one percent of the tax collected
pursuant to the provisions of this article: Provided, That in any
fiscal year in which the tax collected pursuant to the provisions
of this article exceed three hundred million dollars, the
commissioner is authorized to retain an additional one percent of
the tax in excess of the three hundred million dollars that is
collected. The amounts retained by the commissioner under this
subsection shall be deposited in the Motor Fuel General Tax
Administration Fund and may be expended for the general
administration of taxes imposed by this chapter.
(b) All remaining tax collected under the provisions of this article after deducting the amount of any refunds lawfully paid
shall be paid into the State Road Fund and used only for the
purpose of construction, reconstruction, maintenance and repair of
highways, matching of federal moneys available for highway purposes
and payment of the interest and sinking fund obligations on state
bonds issued for highway purposes.
(c) Not less than monthly, beginning the first day of July,
two thousand seven, the Commissioner of Highways shall report to
the Joint Committee on Government and Finance or its designated
subcommittee on the amount of tax paid into the State Road Fund
under subsection (b) of this section any matching federal funds,
and all expenditures therefrom.;
That the Senate recede from its amendment, striking out the
enacting section and inserting in lieu thereof a new enacting
section;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 2955--A Bill to amend and
reenact §11-14C-5 and §11-14C-47 of the Code of West Virginia,
1931, as amended, all relating to the motor fuel excise tax
generally; extending the date to which the rate of the flat-rate
component of the motor fuel excise tax will remain at twenty and
one-half cents per invoiced gallon; and requiring the Commissioner
of Highways to report to the Joint Committee on Government and
Finance or its designated subcommittee on the amount of tax paid into the state road fund, any matching federal funds and all
expenditures therefrom.
Respectfully submitted,
K. Steven Kominar, Chair, Larry W. Barker, Allen V. Evans,
Conferees on the part of the House of Delegates.
Walt Helmick, Chair, Larry J. Edgell, Jesse O. Guills,
Conferees on the part of the Senate.
Senator Helmick, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Helmick, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2955, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Wells, White and Tomblin (Mr.
President)--30.
The nays were: Fanning, Unger and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2955) passed with its conference amended
title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
Whereupon,
Senator Foster, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. House Bill No. 2568, Extending the sunset provision
regarding racial profiling analysis.
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 Engrossed House
Bill No. 2568 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 Senate on page five, section three, line
sixty-three, and that the Senate and House agree to an amendment as
follows:
On page five, section three, lines sixty-one through sixty-
three, by striking out all of subsection (d) and inserting in lieu
thereof a new subsection (d), to read as follows:
(d) Collection of data pursuant to subsection (a) of this section shall terminate on the thirty-first day of December, two
thousand eight. The provisions of this chapter shall be of no
force or effect after the thirty-first day of December thirtieth
day of June, two thousand seven nine.;
That the House agree to all other Senate amendments to the
bill;
And,
That both houses agree to a new title, to read as follows:
Eng. House Bill No. 2568--A Bill to amend and reenact §17G-2-3
of the Code of West Virginia, 1931, as amended, relating to
extending the sunset provision regarding racial profiling analysis.
Respectfully submitted,
Clif Moore, Chair, Marshall Long, Patrick Lane, Conferees on
the part of the House of Delegates.
Dan Foster, Chair, Evan H. Jenkins, Dave Sypolt, Conferees on
the part of the Senate.
Senator Foster, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Foster, the report was taken
up for immediate consideration and adopted.
Engrossed House Bill No. 2568, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2568) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2498, Relating to sexual
offenses involving children.
Whereupon, Senator Minard, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2498, Relating to sexual
offenses involving children
.
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 Engrossed
Committee Substitute for House Bill No. 2498 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 Senate, striking out everything after the
enacting section, and agree to the same as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-9. Indecent exposure.
(a) A person is guilty of indecent exposure when such person
intentionally exposes his or her sex organs or anus or the sex
organs or anus of another person, or intentionally causes such
exposure by another or engages in any overt act of sexual
gratification, and does so under circumstances in which the person
knows that the conduct is likely to cause affront or alarm.
(b) Except as provided in subsection (c) of this section, any
person who violates the provisions of this section shall be guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
the county jail not more than ninety days, or fined not more than
two hundred fifty dollars and confined in the county jail not more
than ninety days.
(c) Any person who violates the provisions of subsection (a)
of this section by intentionally exposing himself or herself to
another person and the exposure was done for the purpose of sexual
gratification, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars or
confined in jail not more than twelve months, or both. For a
second offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars and confined in jail for not less than thirty days nor more than twelve months. For a third or subsequent offense, the person
is guilty of a felony and, upon conviction thereof, shall be fined
not more than three thousand dollars and imprisoned in a state
correctional facility for not less than one year nor more than five
years.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is
required:
(1) "Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as
might reasonably be expected under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a
person in fear of immediate death or bodily injury to himself or
herself or another person or in fear that he or she or another
person will be kidnapped; or
(c) Fear by a person under sixteen years of age caused by
intimidation, expressed or implied, by another person who is at
least four years older than the victim.
For the purposes of this definition "resistance" includes
physical resistance or any clear communication of the victim's lack
of consent.
(2) "Married", for the purposes of this article in addition to
its legal meaning, includes persons living together as husband and
wife regardless of the legal status of their relationship.
(3) "Mentally defective" means that a person suffers from a mental disease or defect which renders that person incapable of
appraising the nature of his or her conduct.
(4) "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his or her
conduct as a result of the influence of a controlled or
intoxicating substance administered to that person without his or
her consent or as a result of any other act committed upon that
person without his or her consent.
(5) "Physically helpless" means that a person is unconscious
or for any reason is physically unable to communicate unwillingness
to an act.
(6) "Sexual contact" means any intentional touching, either
directly or through clothing, of the breasts, buttocks, anus or
any part of the sex organs of another person or the breasts of a
female or intentional touching of any part of another person's body
by the actor's sex organs, where the victim is not married to the
actor and the touching is done for the purpose of gratifying the
sexual desire of either party.
(7) "Sexual intercourse" means any act between persons
involving penetration, however slight, of the female sex organ by
the male sex organ or involving contact between the sex organs of
one person and the mouth or anus of another person.
(8) "Sexual intrusion" means any act between persons involving
penetration, however slight, of the female sex organ or of the anus
of any person by an object for the purpose of degrading or
humiliating the person so penetrated or for gratifying the sexual desire of either party.
(9) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition.
(10) "Serious bodily injury" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.
(11) "Deadly weapon" means any instrument, device or thing
capable of inflicting death or serious bodily injury, and designed
or specially adapted for use as a weapon, or possessed, carried or
used as a weapon.
(12) "Forensic medical examination" means an examination
provided to a possible victim of a violation of the provisions of
this article by medical personnel qualified to gather evidence of
the violation in a manner suitable for use in a court of law, to
include: An examination for physical trauma; a determination of
penetration or force; a patient interview; and the collection and
evaluation of other evidence that is potentially relevant to the
determination that a violation of the provisions of this article
occurred and to the determination of the identity of the
assailant.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 2498--A Bill to amend and
reenact §61-8-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-8B-1 of said code, all relating to sexual
offenses; increased penalties for indecent exposure for the purpose
of sexual gratification; and expanding the definition of sexual
contact to include the touching of the buttocks.
Respectfully submitted,
Tim Miley, Chair, Mike Burdiss, Tom Azinger, Conferees on the
part of the House of Delegates.
Joseph M. Minard, Chair, Erik P. Wells, Andy McKenzie,
Conferees on the part of the Senate.
Senator Minard, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2498, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2498) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2051, Including lasers as a
method of proving the speed of vehicles.
Whereupon, Senator White
, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2051, Including lasers as a
method of proving the speed of vehicles
.
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 Engrossed
Committee Substitute for House Bill No. 2051 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That the Senate recede from its amendments to the bill and its
title.
Respectfully submitted,
Lidella Wilson Hrutkay, Chair, Linda Longstreth, Robert A.
Schadler, Conferees on the part of the House of Delegates.
C. Randy White, Chair, Mike Green, Mike Hall, Conferees on the
part of the Senate.
Senator White, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator White, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2051, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2051) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
Whereupon,
Senator Fanning, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2709, Requiring the
installation of fire hydrants at intervals of not more than every
two thousand feet on all new installation of water mains.
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 Engrossed
Committee Substitute for House Bill No. 2709 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That the Senate recede from its amendment, striking out
everything after the enacting clause, and that both houses agree to
an amendment as follows:
On page two, section twenty-one, line sixteen, after the word
"hydrant" by changing the period to a colon and inserting the
following proviso: Provided, That the Legislature shall study the
effect, cost and feasibility of the internal hydrant valve and
report the findings of that study to the regular session of the
Legislature in the year two thousand eight.;
And,
That the Senate recede from its amendment to the title of the
bill.
Respectfully submitted,
Scott G. Varner, Chair, Locke Wysong, Patrick Lane, Conferees
on the part of the House of Delegates.
John Pat Fanning, Chair, Karen L. Facemyer, Ron Stollings,
Conferees on the part of the Senate.
Senator Fanning, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Fanning, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2709, as
amended by the conference report, was then put upon its passage.
Pending discussion and a point of inquiry to the President,
with resultant response thereto,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
passage of Engrossed Committee Substitute for House Bill No. 2709.
On the passage of the bill, as amended, the yeas were:
Bailey, Bowman, Chafin, Deem, Edgell, Fanning, Foster, Green,
Helmick, Hunter, Jenkins, Kessler, McCabe, Minard, Plymale,
Prezioso, Unger, Wells and Tomblin (Mr. President)--19.
The nays were: Barnes, Boley, Caruth, Facemyer, Guills, Hall,
Love, McKenzie, Oliverio, Sprouse, Stollings, Sypolt, White and
Yoder--14.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2709) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid
waste service.
Whereupon,
Senator Jenkins, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft
of oil, natural gas, water, telecommunications, electric and solid
waste service.
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 Engrossed
Committee Substitute House Bill No. 3161 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 Senate, striking out everything after the
enacting section, and agree to the same as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-45. Tampering with pipes, tubes, wires or electrical
conductors; penalty.
Every person who, with intent to injure or defraud, connects,
or causes to be connected, any pipe, tube, wire, electrical
conductor or other instrument with any main, service pipe, or other
pipe or conduit or flume for conducting water, or with any main,
service pipe, or other pipe or conduit for conducting oil, natural
gas, or with any main, service wire or other electric conductor
used for the purpose of conducting electric energy for light, heat
or motive services, for the purpose of taking therefrom water, oil,
natural gas, telecommunications service, or electric energy,
without the knowledge of the owner thereof and with intent to evade
payment therefor, shall be is guilty of a misdemeanor and, upon
conviction thereof, shall: Be be confined in the county jail not
exceeding twelve months, or fined not exceeding one two thousand
dollars, or both, in the discretion of the court.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 3161--A Bill to amend and
reenact §61-3-45 of the Code of West Virginia, 1931, as amended,
relating to the theft of oil, natural gas, water,
telecommunications and electric service; and increasing the maximum
fine upon conviction.
Respectfully submitted,
William F. Stemple, Chair, John Pino, Kelli Sobonya (Did not
sign), Conferees on the part of the House of Delegates.
Evan H. Jenkins, Chair, Jon Blair Hunter, Clark S. Barnes, Conferees on the part of the Senate.
Senator Jenkins, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Jenkins, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 3161, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3161) passed with its conference amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2007, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 667, Providing student financial aid for
certain military service.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §15-1B-21 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 §18B-10-10, all to read as
follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 1B. NATIONAL GUARD.
§15-1B-21. Tuition and fees for guard members at institutions of
higher education.
(a) Any member of the Army National Guard or Air National
Guard who is enrolled in a course of undergraduate study or a
master's degree program and is attending any accredited college,
university, business or trade school located in West Virginia or is
attending any aviation school located in West Virginia for the
purpose of taking college-credit courses, may be entitled to
payment of tuitions and fees at that college, university, business
or trade school or aviation school during the period of his or her
service in the National Guard. Provided, That the The Adjutant
General may prescribe criteria of eligibility for payment of tuition and fees at the college, university, business or trade
school or aviation school. Provided, however, That the The payment
is contingent upon appropriations being made by the Legislature for
this express purpose. A member may receive payment for only one
master's degree pursuant to this section.
(b) The amount of the payment for members attending a
state-supported school shall be determined by the Adjutant General
and may not exceed the actual amount of tuition and fees at the
school. The amount of the payment for members attending a private
school shall be determined by the Adjutant General, but in no any
event may it not exceed the highest amounts payable at any
state-supported school.
(c) Any member of the Army National Guard or Air National
Guard who is enrolled in a course of postgraduate undergraduate
study or a master's degree program and is attending any accredited
college or university located in West Virginia, and is receiving
payments under the Army a federally funded continuing education
system, may be entitled to payment of tuition and fees at that
college or university during his or her period of service in the
Army National Guard or Air National Guard: Provided, That the sum
of payments received under this subsection and the Army a federally
funded continuing education system may not exceed the actual amount
of tuition and fees at the school and in no event may exceed the
highest amounts payable at any state-supported school. The
payments are contingent upon appropriations being made by the
Legislature for this express purpose.
(d) The Adjutant General may, in lieu of the tuition payment
authorized by this section, pay an amount equal to the amount of
tuition which otherwise would have been paid directly to members of
the West Virginia Army National Guard or West Virginia Air National
Guard who are participating in the PROMISE Scholarship program
provided in article seven, chapter eighteen-c of this code.
(e) A member of the West Virginia Army National Guard or West
Virginia Air National Guard who is receiving payments for tuition
and fees under this section, and is discharged from the military
service due to wounds or injuries received in the line of duty, may
continue to receive payments for tuition and fees under this
section as if he or she were still a member. of the West Virginia
National Guard.
(f) The Adjutant General shall administer the tuition and fee
payments authorized under this section and shall propose policies
to implement the provisions of this section.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-10. The Medal of Honor and Andrew J. Trail Purple Heart
Recipient Tuition Waiver.
(a) This section is known as the Medal of Honor and Andrew J.
Trail Purple Heart Recipient Tuition Waiver.
(b) A state institution of higher education shall waive
undergraduate tuition and mandatory fee charges for a state
resident that has been honorably discharged from any branch of the United States armed forces if that resident:
(1) Has received the Medal of Honor or a Purple Heart Medal.
The waiver pursuant to this subdivision is for the amount of
tuition and mandatory fee charges that exceeds the total amount of
any state and federal education benefits, grants or scholarships
received by the resident;
(2) Has received the Medal of Honor or a Purple Heart Medal
and sustained wounds during military combat that resulted in either
a permanent disability or a loss of limb. The waiver pursuant to
this subdivision is for the amount of tuition and mandatory fee
charges that exceeds state and federal education benefits, grants
or scholarships received by the resident that are designated solely
for tuition and mandatory fees.
(c) Tuition and mandatory fee waivers provided pursuant to
this section are not counted when determining the maximum number of
waivers permitted at an institution by section five of this
article.
(d) A tuition and mandatory fee waiver is available pursuant
to this section for a maximum of eight semesters.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 667--A Bill to amend and reenact §15-1B-
21
of the Code of West Virginia, 1931, as amended
; and to amend
said code by adding thereto a new section, designated §18B-10-10,
all relating to providing certain student financial aid for certain military service; providing for the payment of tuition and certain
fees for members of the West Virginia Army National Guard and West
Virginia Air National Guard enrolled in certain graduate study; and
providing tuition and certain fee waivers to certain military
Purple Heart Award recipients
.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 667, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 667) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 667) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 749, Relating to corporation net income
tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
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 §11-23-5b; that §11-23-
6 and §11-23-27 of said code be amended and reenacted;
that §11-24-
1, §11-24-3a, §11-24-7, §11-24-13a and §11-24-24 of said code be
amended and reenacted; and that said code be amended by adding thereto four new sections, designated §11-24-13c, §11-24-13d, §11-
24-13e and §11-24-13f, all to read as follows:
ARTICLE 23. BUSINESS FRANCHISE TAX.
§11-23-5b. Apportionment of income of financial organizations.
Notwithstanding any other provisions of this article or this
code to the contrary, for tax years beginning on or after the first
day of January, two thousand nine, the provisions of section five-a
of this article are null and void and of no force or effect.
§11-23-6. Imposition of tax; change in rate of tax.
(a) General. -- An annual business franchise tax is hereby
imposed on the privilege of doing business in this state and in
respect of the benefits and protection conferred. Such tax shall
be collected from every domestic corporation, every corporation
having its commercial domicile in this state, every foreign or
domestic corporation owning or leasing real or tangible personal
property located in this state or doing business in this state and
from every partnership owning or leasing real or tangible personal
property located in this state or doing business in this state,
effective on and after the first day of July, one thousand nine
hundred eighty-seven.
(b) Amount of tax and rate; effective date. --
(1) On and after the first day of July, one thousand nine
hundred eighty-seven, the amount of tax shall be the greater of
fifty dollars or fifty-five one hundredths of one percent of the
value of the tax base, as determined under this article: Provided,
That when the taxpayer's first taxable year under this article is a short taxable year, the taxpayer's liability shall be prorated
based upon the ratio which the number of months in which such short
taxable year bears to twelve: Provided, however, That this
subdivision shall not apply to taxable years beginning on or after
the first day of January, one thousand nine hundred eighty-nine.
(2) Taxable years after the thirty-first day of December, one
thousand nine hundred eighty-eight. -- For taxable years beginning
on or after the first day of January, one thousand nine hundred
eighty-nine, the amount of tax due under this article shall be the
greater of fifty dollars or seventy-five one hundredths of one
percent of the value of the tax base as determined under this
article.
(3) Taxable years after the thirtieth day of June, one
thousand nine hundred ninety-seven. -- For taxable years beginning
on or after the first day of July, one thousand nine hundred
ninety-seven, the amount of tax due under this article shall be the
greater of fifty dollars or seventy hundredths of one percent of
the value of the tax base as determined under this article.
(4) Taxable years after the thirty-first day of December, two
thousand six. -- For taxable years beginning on or after the first
day of January, two thousand seven, the amount of tax due under
this article shall be the greater of fifty dollars or fifty-five
one hundredths of one percent of the value of the tax base as
determined under this article.
(5) Taxable years after the thirty-first day of December, two
thousand eight. -- For taxable years beginning on or after the first day of January, two thousand nine, the amount of tax due
under this article shall be the greater of fifty dollars or forty-
eight one hundredths of one percent of the value of the tax base as
determined under this article.
(6) Taxable years after the thirty-first day of December, two
thousand nine. -- For taxable years beginning on or after the first
day of January, two thousand ten, the amount of tax due under this
article shall be the greater of fifty dollars or forty-one one
hundredths of one percent of the value of the tax base as
determined under this article.
(7) Taxable years after the thirty-first day of December, two
thousand ten. -- For taxable years beginning on or after the first
day of January, two thousand eleven, the amount of tax due under
this article shall be the greater of fifty dollars or thirty-four
one hundredths of one percent of the value of the tax base as
determined under this article.
(8) Taxable years after thirty-first day of December, two
thousand eleven. -- For taxable years beginning on or after the
first day of January, two thousand twelve, the amount of tax due
under this article shall be the greater of fifty dollars or twenty-
seven one hundredths of one percent of the value of the tax base as
determined under this article.
(9) Taxable years after the thirty-first day of December, two
thousand twelve. -- For taxable years beginning on or after the
first day of January, two thousand thirteen, the amount of tax due
under this article shall be the greater of fifty dollars or twenty one hundredths of one percent of the value of the tax base as
determined under this article.
(c) Short taxable years. -- When the taxpayer's taxable year
for federal income tax purposes is a short taxable year, the tax
determined by application of the tax rate to the taxpayer's tax
base shall be prorated based upon the ratio which the number of
months in such short taxable year bears to twelve: Provided, That
when the taxpayer's first taxable year under this article is less
than twelve months, the taxpayer's liability shall be prorated
based upon the ratio which the number of months the taxpayer was
doing business in this state bears to twelve but in no event shall
the tax due be less than fifty dollars.
§11-23-27. Credit for franchise tax paid to another state.
(a) Effective for taxable years beginning on or after the
first day of January, one thousand nine hundred ninety-one, and
notwithstanding any provisions of this code to the contrary, any
financial organization having its commercial domicile in this state
shall be allowed a credit against the tax imposed by this article
for any taxable year for taxes paid to another state. That credit
shall be equal in amount to the lesser of:
(1) The taxes such financial organization shall actually have
paid, which payments were made on or before the filing date of the
annual return required by this article, to any other state, and
which tax was based upon or measured by the financial
organization's capital and was paid with respect to the same
taxable year; or
(2) The portion of the tax actually paid that the financial
organization would have paid if the rate of tax imposed by this
article is applied to the tax base determined under the law of such
other state.
(b) Any additional payments of such tax to other states, or to
political subdivisions thereof, by a financial organization
described in this section, and any refunds of such taxes, made or
received by such financial organization with respect to the taxable
year, but after the due date of the annual return required by this
article for the taxable year, including any extensions, shall
likewise be accounted for in the taxable year in which such
additional payment is made or such refund is received by the
financial organization.
(c) For tax years beginning on or after the first day of
January, two thousand nine, the provisions of this section are null
and void and of no force or effect.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-1. Legislative findings.
The Legislature hereby finds and declares that the adoption by
this state for its corporation net income tax purposes of certain
provisions of the laws of the United States relating to the
determination of income for federal income tax purposes will: (1)
Simplify preparation of state corporation net income tax returns by
taxpayers; (2) improve enforcement of the state corporation net
income tax through better use of information obtained from federal
income tax audits; and (3) aid interpretation of the state corporation net income tax law through increased use of federal
judicial and administrative determinations and precedents.
The Legislature does, therefore, declare that this article be
construed so as to accomplish the foregoing purposes.
In recognition of the fact that corporate business is
increasingly conducted on a national and international basis, it is
the intent of the Legislature to adopt a combined system of income
tax reporting for corporations. A separate accounting system is
sometimes not adequate to accurately measure the income of
multistate and multinational corporations doing business in this
state and sometimes creates tax disadvantages for West Virginia
corporations in competition with those multistate and multinational
corporations. Therefore, it is the intent of the Legislature to
capture lost revenue with adoption of a combined reporting tax
base.
§11-24-3a. Specific terms defined.
For purposes of this article:
(1) Business income. -- The term "business income" means
income arising from transactions and activity in the regular course
of the taxpayer's trade or business and includes income from
tangible and intangible property if the acquisition, management and
disposition of the property or the rendering of services in
connection therewith constitute integral parts of the taxpayer's
regular trade or business operations, and includes all income which
is apportionable under the Constitution of the United States.
(2) "Combined group" means the group of all persons whose income and apportionment factors are required to be taken into
account pursuant to subsection (a) or (b), section thirteen-a of
this article, in determining the taxpayer's share of the net
business income or loss apportionable to this state.
(2) (3) Commercial domicile. -- The term "commercial domicile"
means the principal place from which the trade or business of the
taxpayer is directed or managed: Provided, That the commercial
domicile of a financial organization, which is subject to
regulation as such, shall be at the place designated as its
principal office with its regulating authority.
(3) (4) Compensation. -- The term "compensation" means wages,
salaries, commissions and any other form of remuneration paid to
employees for personal services.
(4) (5) Corporation. -- "Corporation" means any corporation as
defined by the laws of this state or organization of any kind
treated as a corporation for tax purposes under the laws of this
state, wherever located, which if it were doing business in this
state would be a "taxpayer". The business conducted by a
partnership which is directly or indirectly held by a corporation
shall be considered the business of the corporation to the extent
of the corporation's distributive share of the partnership income,
inclusive of guaranteed payments to the extent prescribed by
regulation. The term "corporation" includes a joint-stock company
and any association or other organization which is taxable as a
corporation under the federal income tax law.
(5) (6) Delegate. -- The term "delegate" in the phrase "or his delegate", when used in reference to the Tax Commissioner, means
any officer or employee of the State Tax Department duly authorized
by the Tax Commissioner directly, or indirectly by one or more
redelegations of authority, to perform the functions mentioned or
described in this article or regulations promulgated thereunder.
(6) (7) Domestic corporation. -- The term "domestic
corporation" means any corporation organized under the laws of West
Virginia and certain corporations organized under the laws of the
state of Virginia before the twentieth day of June, one thousand
eight hundred sixty-three. Every other corporation is a foreign
corporation.
(7) (8) Engaging in business. -- The term "engaging in
business" or "doing business" means any activity of a corporation
which enjoys the benefits and protection of government and laws in
this state.
(8) (9) Federal Form 1120. -- The term "Federal Form 1120"
means the annual federal income tax return of any corporation made
pursuant to the United States Internal Revenue Code of 1986, as
amended, or in successor provisions of the laws of the United
States, in respect to the federal taxable income of a corporation,
and filed with the federal Internal Revenue Service. In the case
of a corporation that elects to file a federal income tax return as
part of an affiliated group, but files as a separate corporation
under this article, then as to such corporation Federal Form 1120
means its pro forma Federal Form 1120.
(9) (10) Fiduciary. -- The term "fiduciary" means, and includes, a guardian, trustee, executor, administrator, receiver,
conservator or any person acting in any fiduciary capacity for any
person.
(10) (11) Financial organization. -- The term "financial
organization" means:
(A) A holding company or a subsidiary thereof. As used in
this section, "holding company" means a corporation registered
under the federal Bank Holding Company Act of 1956 or registered as
a savings and loan holding company other than a diversified savings
and loan holding company (as defined in Section 408(a)(1)(F) of the
federal National Housing Act (12 U. S. C. §1730(a)(1)(F));
(B) A regulated financial corporation or a subsidiary thereof.
As used in this section, "regulated financial corporation" means:
(1) An institution, the deposits, shares or accounts of which
are insured under the Federal Deposit Insurance Act or by the
Federal Savings and Loan Insurance Corporation;
(2) An institution that is a member of a federal home loan
bank;
(3) Any other bank or thrift institution incorporated or
organized under the laws of a state that is engaged in the business
of receiving deposits;
(4) A credit union incorporated and organized under the laws
of this state;
(5) A production credit association organized under 12 U. S.
C. §2071;
(6) A corporation organized under 12 U. S. C. §611 through §631 (an Edge act corporation); or
(7) A federal or state agency or branch of a foreign bank (as
defined in 12 U. S. C. §3101); or
(C) A corporation which derives more than fifty percent of its
gross business income from one or more of the following activities:
(1) Making, acquiring, selling or servicing loans or
extensions of credit. Loans and extensions of credit include:
(I) Secured or unsecured consumer loans;
(II) Installment obligations;
(III) Mortgages or other loans secured by real estate or
tangible personal property;
(IV) Credit card loans;
(V) Secured and unsecured commercial loans of any type; and
(VI) Loans arising in factoring.
(2) Leasing or acting as an agent, broker or advisor in
connection with leasing real and personal property that is the
economic equivalent of an extension of credit (as defined by the
Federal Reserve Board in 12 C. F. R. 225.25(b)(5)).
(3) Operating a credit card business.
(4) Rendering estate or trust services.
(5) Receiving, maintaining or otherwise handling deposits.
(6) Engaging in any other activity with an economic effect
comparable to those activities described in subparagraph (1), (2),
(3), (4) or (5) of this paragraph.
(11) (12) Fiscal year. -- The term "fiscal year" means an
accounting period of twelve months ending on any day other than the last day of December and on the basis of which the taxpayer is
required to report for federal income tax purposes.
(12) (13) Includes and including. -- The terms "includes" and
"including", when used in a definition contained in this article,
shall not be deemed to exclude other things otherwise within the
meaning of the term being defined.
(14) "Internal Revenue Code" means Title 26 of the United
States Code, as amended, without regard to application of federal
treaties unless expressly made applicable to states of the United
States.
(13) (15) Nonbusiness income. -- The term "nonbusiness income"
means all income other than business income.
(16) "Partnership" means a general or limited partnership or
organization of any kind treated as a partnership for tax purposes
under the laws of this state.
(14) (17) Person. -- The term "person" is to be deemed
interchangeable with the term "corporation" in this section. The
term "person" means any individual, firm, partnership, general
partner of a partnership, limited liability company, registered
limited liability partnership, foreign limited liability
partnership, association, corporation (whether or not the
corporation is, or would be if doing business in this state,
subject to the tax imposed by this article), company, syndicate,
estate, trust, business trust, trustee, trustee in bankruptcy,
receiver, executor, administrator, assignee or organization of any
kind.
(15) (18) Pro forma return. -- The term "pro forma return",
when used in this article, means the return which the taxpayer
would have filed with the Internal Revenue Service had it not
elected to file federally as part of an affiliated group.
(16) (19) Public utility. -- The term "public utility" means
any business activity to which the jurisdiction of the Public
Service Commission of West Virginia extends under section one,
article two, chapter twenty-four of this code.
(17) (20) Sales. -- The term "sales" means all gross receipts
of the taxpayer that are "business income", as defined in this
section.
(18) (21) State. -- The term "state" means any state of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, any territory or possession of the United States and any
foreign country or political subdivision thereof.
(19) (22) Taxable year, tax year. -- The term "taxable year"
or "tax year" means the taxable year for which the taxable income
of the taxpayer is computed under the federal income tax law.
(20) (23) Tax. -- The term "tax" includes, within its meaning,
interest and additions to tax, unless the intention to give it a
more limited meaning is disclosed by the context.
(21) (24) Tax Commissioner. -- The term "Tax Commissioner"
means the Tax Commissioner of the State of West Virginia or his
delegate.
(25) "Tax haven" means a jurisdiction that, for a particular
tax year in question: (A) Is identified by the Organization for Economic Cooperation and Development as a tax haven or as having a
harmful preferential tax regime; or (B) a jurisdiction that has no,
or nominal, effective tax on the relevant income and: (i) That has
laws or practices that prevent effective exchange of information
for tax purposes with other governments regarding taxpayers subject
to, or benefiting from, the tax regime; (ii) or that lacks
transparency. For purposes of this definition, a tax regime lacks
transparency if the details of legislative, legal or administrative
provisions are not open to public scrutiny and apparent, or are not
consistently applied among similarly situated taxpayers; (iii)
facilitates the establishment of foreign-owned entities without the
need for a local substantive presence or prohibits these entities
from having any commercial impact on the local economy; (iv)
explicitly or implicitly excludes the jurisdiction's resident
taxpayers from taking advantage of the tax regime's benefits or
prohibits enterprises that benefit from the regime from operating
in the jurisdiction's domestic market; or (v) has created a tax
regime which is favorable for tax avoidance, based upon an overall
assessment of relevant factors, including whether the jurisdiction
has a significant untaxed offshore financial or other services
sector relative to its overall economy. For purposes of this
definition, the phrase "tax regime" means a set or system of rules,
laws, regulations or practices by which taxes are imposed on any
person, corporation or entity, or on any income, property,
incident, indicia or activity pursuant to governmental authority.
(22) (26) Taxpayer. -- The term "taxpayer" means a corporation any person
subject to the tax imposed by this article.
(23) (27) This code. -- The term "this code" means the Code of
West Virginia, one thousand nine hundred thirty-one, as amended.
(24) (28) This state. -- The term "this state" means the State
of West Virginia.
(29) "United States" means the United States of America and
includes all of the states of the United States, the District of
Columbia and United States territories and possessions.
(30) "Unitary business" means a single economic enterprise
that is made up either of separate parts of a single business
entity or of a commonly controlled group of business entities that
are sufficiently interdependent, integrated and interrelated
through their activities so as to provide a synergy and mutual
benefit that produces a sharing or exchange of value among them and
a significant flow of value to the separate parts.
(25) (31) West Virginia taxable income. -- The term "West
Virginia taxable income" means the taxable income of a corporation
as defined by the laws of the United States for federal income tax
purposes, adjusted, as provided in section six of this article:
Provided, That in the case of a corporation having income from
business activity which is taxable without this state, its "West
Virginia taxable income" shall be such portion of its taxable
income as so defined and adjusted as is allocated or apportioned to
this state under the provisions of sections seven and seven-b of
this article.
§11-24-7. Allocation and apportionment.
(a) General. -- Any taxpayer having income from business
activity which is taxable both in this state and in another state
shall allocate and apportion its net income as provided in this
section. For purposes of this section, the term "net income" means
the taxpayer's federal taxable income adjusted as provided in
section six.
(b) "Taxable in another state" defined. -- For purposes of
allocation and apportionment of net income under this section, a
taxpayer is taxable in another state if:
(1) In that state the taxpayer is subject to a net income tax,
a franchise tax measured by net income, a franchise tax for the
privilege of doing business or a corporation stock tax; or
(2) That state has jurisdiction to subject the taxpayer to a
net income tax, regardless of whether, in fact, that state does or
does not subject the taxpayer to the tax.
(c) Business activities entirely within West Virginia. -- If
the business activities of a taxpayer take place entirely within
this state, the entire net income of the taxpayer is subject to the
tax imposed by this article. The business activities of a taxpayer
are considered to have taken place in their entirety within this
state if the taxpayer is not "taxable in another state": Provided,
That for tax years beginning before the first day of January, two
thousand nine, the business activities of a financial organization
having its commercial domicile in this state are considered to take
place entirely in this state, notwithstanding that the organization
may be "taxable in another state": Provided, however, That for tax years beginning before the first day of January, two thousand nine,
the income from the business activities of a financial organization
not having its commercial domicile in this state shall be
apportioned according to the applicable provisions of this article.
(d) Business activities partially within and partially without
West Virginia; allocation of nonbusiness income. -- If the business
activities of a taxpayer take place partially within and partially
without this state and the taxpayer is also taxable in another
state, rents and royalties from real or tangible personal property,
capital gains, interest, dividends or patent or copyright
royalties, to the extent that they constitute nonbusiness income of
the taxpayer, shall be allocated as provided in subdivisions (1)
through (4), inclusive, of this subsection: Provided, That to the
extent the items constitute business income of the taxpayer, they
may not be so allocated but they shall be apportioned to this state
according to the provisions of subsection (e) of this section and
to the applicable provisions of section seven-b of this article.
(1) Net rents and royalties. --
(A) Net rents and royalties from real property located in this
state are allocable to this state.
(B) Net rents and royalties from tangible personal property
are allocable to this state:
(i) If and to the extent that the property is utilized in this
state; or
(ii) In their entirety if the taxpayer's commercial domicile
is in this state and the taxpayer is not organized under the laws of or taxable in the state in which the property is utilized.
(C) The extent of utilization of tangible personal property in
a state is determined by multiplying the rents and royalties by a
fraction, the numerator of which is the number of days of physical
location of the property in the state during the rental or royalty
period in the taxable year and the denominator of which is the
number of days of physical location of the property everywhere
during all rental or royalty periods in the taxable year. If the
physical location of the property during the rental or royalty
period is unknown or unascertainable by the taxpayer, tangible
personal property is utilized in the state in which the property
was located at the time the rental or royalty payer obtained
possession.
(2) Capital gains. --
(A) Capital gains and losses from sales of real property
located in this state are allocable to this state.
(B) Capital gains and losses from sales of tangible personal
property are allocable to this state if:
(i) The property had a situs in this state at the time of the
sale; or
(ii) The taxpayer's commercial domicile is in this state and
the taxpayer is not taxable in the state in which the property had
a situs.
(C) Capital gains and losses from sales of intangible personal
property are allocable to this state if the taxpayer's commercial
domicile is in this state.
(D) Gains pursuant to Section 631 (a) and (b) of the Internal
Revenue Code of 1986, as amended, from sales of natural resources
severed in this state shall be allocated to this state if they are
nonbusiness income.
(3) Interest and dividends are allocable to this state if the
taxpayer's commercial domicile is in this state.
(4) Patent and copyright royalties. --
(A) Patent and copyright royalties are allocable to this
state:
(i) If and to the extent that the patent or copyright is
utilized by the payer in this state; or
(ii) If and to the extent that the patent or copyright is
utilized by the payer in a state in which the taxpayer is not
taxable and the taxpayer's commercial domicile is in this state.
(B) A patent is utilized in a state to the extent that it is
employed in production, fabrication, manufacturing or other
processing in the state or to the extent that a patented product is
produced in the state. If the basis of receipts from patent
royalties does not permit allocation to states or if the accounting
procedures do not reflect states of utilization, the patent is
utilized in the state in which the taxpayer's commercial domicile
is located.
(C) A copyright is utilized in a state to the extent that
printing or other publication originates in the state. If the basis
of receipts from copyright royalties does not permit allocation to
states or if the accounting procedures do not reflect states of utilization, the copyright is utilized in the state in which the
taxpayer's commercial domicile is located.
(5) Corporate partner's distributive share. --
(A) Persons carrying on business as partners in a partnership,
as defined in Section 761 of the Internal Revenue Code of 1986, as
amended, are liable for income tax only in their separate or
individual capacities.
(B) A corporate partner's distributive share of income, gain,
loss, deduction or credit of a partnership shall be modified as
provided in section six of this article for each partnership. For
taxable years beginning on or after the thirty-first day of
December, one thousand nine hundred ninety-eight, the distributive
share shall then be allocated and apportioned as provided in this
section, using the partnership's property, payroll and sales
factors. The sum of that portion of the distributive share
allocated and apportioned to this state shall then be treated as
distributive share allocated to this state; and that portion of
distributive share allocated or apportioned outside this state
shall be treated as distributive share allocated outside this
state, unless the taxpayer requests or the Tax Commissioner, under
subsection (h) of this section requires that the distributive share
be treated differently.
(e) Business activities partially within and partially without
this state; apportionment of business income. -- All net income,
after deducting those items specifically allocated under subsection
(d) of this section, shall be apportioned to this state by multiplying the net income by a fraction, the numerator of which is
the property factor plus the payroll factor plus two times the
sales factor, and the denominator of which is four, reduced by the
number of factors, if any, having no denominator.
(1) Property factor. -- The property factor is a fraction, the
numerator of which is the average value of the taxpayer's real and
tangible personal property owned or rented and used by it in this
state during the taxable year and the denominator of which is the
average value of all the taxpayer's real and tangible personal
property owned or rented and used by the taxpayer during the
taxable year, which is reported on Schedule L Federal Form 1120,
plus the average value of all real and tangible personal property
leased and used by the taxpayer during the taxable year.
(2) Value of property. -- Property owned by the taxpayer shall
be valued at its original cost, adjusted by subsequent capital
additions or improvements thereto and partial disposition thereof,
by reason of sale, exchange, abandonment, etc.: Provided, That
where records of original cost are unavailable or cannot be
obtained without unreasonable expense, property shall be valued at
original cost as determined under rules of the Tax Commissioner.
Property rented by the taxpayer from others shall be valued at
eight times the annual rental rate. The term "net annual rental
rate" is the annual rental paid, directly or indirectly, by the
taxpayer, or for its benefit, in money or other consideration for
the use of property and includes:
(A) Any amount payable for the use of real or tangible personal property, or any part of the property, whether designated
as a fixed sum of money or as a percentage of sales, profits or
otherwise.
(B) Any amount payable as additional rent or in lieu of rents,
such as interest, taxes, insurance, repairs or any other items
which are required to be paid by the terms of the lease or other
arrangement, not including amounts paid as service charges, such as
utilities, janitor services, etc. If a payment includes rent and
other charges unsegregated, the amount of rent shall be determined
by consideration of the relative values of the rent and the other
items.
(3) Movable property. -- The value of movable tangible
personal property used both within and without this state shall be
included in the numerator to the extent of its utilization in this
state. The extent of the utilization shall be determined by
multiplying the original cost of the property by a fraction, the
numerator of which is the number of days of physical location of
the property in this state during the taxable period, and the
denominator of which is the number of days of physical location of
the property everywhere during the taxable year. The number of days
of physical location of the property may be determined on a
statistical basis or by other reasonable method acceptable to the
Tax Commissioner.
(4) Leasehold improvements. -- Leasehold improvements shall,
for purposes of the property factor, be treated as property owned
by the taxpayer regardless of whether the taxpayer is entitled to remove the improvements or the improvements revert to the lessor
upon expiration of the lease. Leasehold improvements shall be
included in the property factor at their original cost.
(5) Average value of property. -- The average value of
property shall be determined by averaging the values at the
beginning and ending of the taxable year: Provided, That the Tax
Commissioner may require the averaging of monthly values during the
taxable year if substantial fluctuations in the values of the
property exist during the taxable year, or where property is
acquired after the beginning of the taxable year, or is disposed
of, or whose rental contract ceases, before the end of the taxable
year.
(6) Payroll factor. -- The payroll factor is a fraction, the
numerator of which is the total compensation paid in this state
during the taxable year by the taxpayer for compensation, and the
denominator of which is the total compensation paid by the taxpayer
during the taxable year, as shown on the taxpayer's federal income
tax return as filed with the Internal Revenue Service, as reflected
in the schedule of wages and salaries and that portion of cost of
goods sold which reflects compensation, or as shown on a pro forma
return.
(7) Compensation. -- The term "compensation" means wages,
salaries, commissions and any other form of remuneration paid to
employees for personal services. Payments made to an independent
contractor or to any other person not properly classifiable as an
employee shall be excluded. Only amounts paid directly to employees are included in the payroll factor. Amounts considered as paid
directly to employees include the value of board, rent, housing,
lodging and other benefits or services furnished to employees by
the taxpayer in return for personal services, provided the amounts
constitute income to the recipient for federal income tax purposes.
(8) Employee. -- The term "employee" means:
(A) Any officer of a corporation; or
(B) Any individual who, under the usual common-law rule
applicable in determining the employer-employee relationship, has
the status of an employee.
(9) Compensation. -- Compensation is paid or accrued in this
state if:
(A) The employee's service is performed entirely within this
state; or
(B) The employee's service is performed both within and
without this state, but the service performed without the state is
incidental to the individual's service within this state. The word
"incidental" means any service which is temporary or transitory in
nature or which is rendered in connection with an isolated
transaction; or
(C) Some of the service is performed in this state and:
(i) The employee's base of operations or, if there is no base
of operations, the place from which the service is directed or
controlled is in the state; or
(ii) The base of operations or the place from which the
service is directed or controlled is not in any state in which some part of the service is performed, but the employee's residence is
in this state.
The term "base of operations" is the place of more or less
permanent nature from which the employee starts his or her work and
to which he or she customarily returns in order to receive
instructions from the taxpayer or communications from his or her
customers or other persons or to replenish stock or other
materials, repair equipment or perform any other functions
necessary to the exercise of his or her trade or profession at some
other point or points. The term "place from which the service is
directed or controlled" refers to the place from which the power to
direct or control is exercised by the taxpayer.
(10) Sales factor. -- The sales factor is a fraction, the
numerator of which is the gross receipts of the taxpayer derived
from transactions and activity in the regular course of its trade
or business in this state during the taxable year (business
income), less returns and allowances. The denominator of the
fraction is the total gross receipts derived by the taxpayer from
transactions and activity in the regular course of its trade or
business during the taxable year (business income), and reflected
in its gross income reported and as appearing on the taxpayer's
Federal Form 1120, and consisting of those certain pertinent
portions of the (gross income) elements set forth: Provided, That
if either the numerator or the denominator includes interest or
dividends from obligations of the United States government which
are exempt from taxation by this state, the amount of such interest and dividends, if any, shall be subtracted from the numerator or
denominator in which it is included.
(11) Allocation of sales of tangible personal property. --
(A) Sales of tangible personal property are in this state if:
(i) The property is received in this state by the purchaser,
other than the United States government, regardless of the f. o. b.
point or other conditions of the sale. In the case of delivery by
common carrier or other means of transportation, the place at which
the property is ultimately received after all transportation has
been completed is the place at which the property is received by
the purchaser. Direct delivery in this state, other than for
purposes of transportation, to a person or firm designated by the
purchaser, is delivery to the purchaser in this state, and direct
delivery outside this state to a person or firm designated by the
purchaser is not delivery to the purchaser in this state,
regardless of where title passes or other conditions of sale; or
(ii) The property is shipped from an office, store, warehouse,
factory or other place of storage in this state and the purchaser
is the United States government.
(B) All other sales of tangible personal property delivered or
shipped to a purchaser within a state in which the taxpayer is not
taxed, as defined in subsection (b) of this section, shall be
excluded from the denominator of the sales factor.
(12) Allocation of other sales. -- Sales, other than sales of
tangible personal property are in this state if:
(A) The income-producing activity is performed in this state; or
(B) The income-producing activity is performed both in and
outside this state and a greater proportion of the income-producing
activity is performed in this state than in any other state, based
on costs of performance; or
(C) The sale constitutes business income to the taxpayer, or
the taxpayer is a financial organization not having its commercial
domicile in this state, and in either case the sale is a receipt
described as attributable to this state in subsection (b), section
seven-b of this article.
(13) Financial organizations and other taxpayers with business
activities partially within and partially without this state. --
Notwithstanding anything contained in this section to the contrary,
in the case of financial organizations and other taxpayers not
having their commercial domicile in this state, the rules of this
subsection apply to the apportionment of income from their business
activities except as expressly otherwise provided in subsection
(b), section seven-b of this article.
(f) Income-producing activity. -- The term "income-producing
activity" applies to each separate item of income and means the
transactions and activity directly engaged in by the taxpayer in
the regular course of its trade or business for the ultimate
purpose of obtaining gain or profit. The activity does not include
transactions and activities performed on behalf of the taxpayer,
such as those conducted on its behalf by an independent contractor.
"Income-producing activity" includes, but is not limited to, the following:
(1) The rendering of personal services by employees with
utilization of tangible and intangible property by the taxpayer in
performing a service;
(2) The sale, rental, leasing, licensing or other use of real
property;
(3) The sale, rental, leasing, licensing or other use of
tangible personal property; or
(4) The sale, licensing or other use of intangible personal
property.
The mere holding of intangible personal property is not, in
itself, an income-producing activity: Provided, That the conduct of
the business of a financial organization is an income-producing
activity.
(g) Cost of performance. -- The term "cost of performance"
means direct costs determined in a manner consistent with generally
accepted accounting principles and in accordance with accepted
conditions or practices in the trade or business of the taxpayer.
(h) Other methods of allocation and apportionment. --
(1) General. -- If the allocation and apportionment provisions
of subsections (d) and (e) of this section do not fairly represent
the extent of the taxpayer's business activities in this state, the
taxpayer may petition for or the Tax Commissioner may require, in
respect to all or any part of the taxpayer's business activities,
if reasonable:
(A) Separate accounting;
(B) The exclusion of one or more of the factors;
(C) The inclusion of one or more additional factors which will
fairly represent the taxpayer's business activity in this state; or
(D) The employment of any other method to effectuate an
equitable allocation or apportionment of the taxpayer's income. The
petition shall be filed no later than the due date of the annual
return for the taxable year for which the alternative method is
requested, determined without regard to any extension of time for
filing the return and the petition shall include a statement of the
petitioner's objections and of the alternative method of allocation
or apportionment as it believes to be proper under the
circumstances with such detail and proof as the Tax Commissioner
may require.
(2) Alternative method for public utilities. -- If the
taxpayer is a public utility and if the allocation and
apportionment provisions of subsections (d) and (e) of this section
do not fairly represent the taxpayer's business activities in this
state, the taxpayer may petition for, or the Tax Commissioner may
require, as an alternative to the other methods provided for in
subdivision (1) of this subsection, the allocation and
apportionment of the taxpayer's net income in accordance with any
system of accounts prescribed by the Public Service Commission of
this state pursuant to the provisions of section eight, article
two, chapter twenty-four of this code: Provided, That the
allocation and apportionment provisions of the system of accounts
fairly represent the extent of the taxpayer's business activities in this state for the purposes of the tax imposed by this article.
(3) Burden of proof. -- In any proceeding before the Tax
Commissioner or in any court in which employment of one of the
methods of allocation or apportionment provided for in subdivision
(1) or (2) of this subsection is sought, on the ground that the
allocation and apportionment provisions of subsections (d) and (e)
of this section do not fairly represent the extent of the
taxpayer's business activities in this state, the burden of proof
is:
(A) If the Tax Commissioner seeks employment of one of the
methods, on the Tax Commissioner; or
(B) If the taxpayer seeks employment of one of the other
methods, on the taxpayer.
(4) For tax years beginning on or after the first day of
January, two thousand nine, the provisions of sections seven-a and
seven-b of this article shall be null and void and of no force or
effect.
§11-24-13a. Method of filing for business taxes.
(a) Privilege to file consolidated return. --
(1) An affiliated group of corporations (as defined for
purposes of filing a consolidated federal income tax return) shall,
subject to the provisions of this section and in accordance with
any regulations prescribed by the Tax Commissioner, have the
privilege of filing a consolidated return with respect to the tax
imposed by this article for the taxable year in lieu of filing
separate returns. The making of a consolidated return shall be upon the condition that all corporations which at any time during the
taxable year have been members of the affiliated group are included
in such return and consent to the filing of such return. The filing
of a consolidated return shall be considered as such consent. When
a corporation is a member of an affiliated group for a fractional
part of the year, the consolidated return shall include the income
of such corporation for that part of the year during which it is a
member of the affiliated group.
(2) For tax years beginning on and after the first day of
January, two thousand nine, the provisions of this subsection are
null and void and of no further force or effect.
(b) Election binding. --
(1) If an affiliated group of corporations elects to file a
consolidated return under this article for any taxable year ending
after the thirtieth day of June, one thousand nine hundred eighty-
seven, such election once made shall not be revoked for any
subsequent taxable year without the written approval of the Tax
Commissioner consenting to the revocation.
(2) For tax years beginning on and after the first day of
January, two thousand nine, the provisions of this subsection are
null and void and of no further force or effect.
(c) Consolidated return -- financial organizations. --
An affiliated group that includes one or more financial
organizations may elect under this section to file a consolidated
return when that affiliated group complies with all of the
following rules:
(1) The affiliated group of which the financial organization
is a member must file a federal consolidated income tax return for
the taxable year.
(2) All members of the affiliated group included in the
federal consolidated return must consent to being included in the
consolidated return filed under this article. The filing of a
consolidated return under this article is conclusive proof of such
consent.
(3) The West Virginia taxable income of the affiliated group
shall be the sum of:
(A) The pro forma West Virginia taxable income of all
financial organizations having their commercial domicile in this
state that are included in the federal consolidated return, as
shown on a combined pro forma West Virginia return prepared for
such financial organizations; plus
(B) The pro forma West Virginia taxable income of all
financial organizations not having their commercial domicile in
this state that are included in the federal consolidated return, as
shown on a combined pro forma West Virginia return prepared for
such financial organizations; plus
(C) The pro forma West Virginia taxable income of all other
members included in the federal consolidated income tax return, as
shown on a combined pro forma West Virginia return prepared for all
such nonfinancial organization members, except that income, income
adjustments and exclusions, apportionment factors and other items
considered when determining tax liability shall not be included in the pro forma return prepared under this paragraph for a member
that is totally exempt from tax under section five of this article,
or for a member that is subject to a different special industry
apportionment rule provided for in this article. When a different
special industry apportionment rule applies, the West Virginia
taxable income of a member(s) subject to that special industry
apportionment rule shall be determined on a separate pro forma West
Virginia return for the member(s) subject to that special industry
rule and the West Virginia taxable income so determined shall be
included in the consolidated return.
(4) The West Virginia consolidated return is prepared in
accordance with regulations of the Tax Commissioner promulgated as
provided in article three, chapter twenty-nine-a of this code.
(5) The filing of a consolidated return does not distort
taxable income. In any proceeding, the burden of proof that
taxpayer's method of filing does not distort taxable income shall
be upon the taxpayer.
(6) For tax years beginning on and after the first day of
January, two thousand nine, the provisions of this subsection are
null and void and of no further force or effect.
(d) Combined return. --
(1) A combined return may be filed under this article by a
unitary group, including a unitary group that includes one or more
financial organizations, only pursuant to the prior written
approval of the Tax Commissioner. A request for permission to file
a combined return must be filed on or before the statutory due date of the return, determined without inclusion of any extension of
time to file the return. Permission to file a combined return may
be granted by the Tax Commissioner only when taxpayer submits
evidence that conclusively establishes that failure to allow the
filing of a combined return will result in an unconstitutional
distortion of taxable income. When permission to file a combined
return is granted, combined filing will be allowed for the year(s)
stated in the Tax Commissioner's letter. The combined return must
be filed in accordance with regulations of the Tax Commissioner
promulgated in accordance with article three, chapter twenty-nine-a
of this code.
(2) For tax years beginning on and after the first day of
January, two thousand nine, the provisions of this subsection are
null and void and of no further force or effect.
(e) Method of filing under this article deemed controlling for
purposes of other business taxes articles. --
The taxpayer shall file on the same basis under article
twenty-three of this chapter as such taxpayer files under this
article for the taxable year.
(f) Regulations. --
The Tax Commissioner shall prescribe such regulations as he
may deem necessary in order that the tax liability of any
affiliated group or combined group of corporations filing a
consolidated return, or of any unitary group of corporations filing
a combined return, and of each corporation in the affiliated or
unitary group, both during and after the period of affiliation, may be returned, determined, computed, assessed, collected and
adjusted, in such manner as the Tax Commissioner deems necessary to
clearly reflect the income tax liability and the income factors
necessary for the determination of such liability, and in order to
prevent avoidance of such tax liability.
(g) Computation and payment of tax. --
In any case in which a consolidated or combined return is
filed, or required to be filed, the tax due under this article from
the affiliated, combined or unitary group shall be determined,
computed, assessed, collected and adjusted in accordance with
regulations prescribed by the Tax Commissioner, in effect on the
last day prescribed by section thirteen of this article for the
filing of such return, and such affiliated, combined or unitary
group, as the case may be, shall be treated as the taxpayer.
However, when any member of an affiliated, combined or unitary
group that files a consolidated or combined return under this
article is allowed to claim credit against its tax liability under
this article for payment of any other tax, the amount of credit
allowed may not exceed that member's proportionate share of the
affiliated, combined or unitary group's precredit tax liability
under this article, as shown on its pro forma return.
(h)
Consolidated or combined return may be required. --
If any affiliated group of corporations has not elected to
file a consolidated return, or if any unitary group of corporations
has not applied for permission to file a combined return, the The
Tax Commissioner may require such corporations any person or corporation to make a and file a separate return or to make and
file a composite, unitary, consolidated or combined return, as the
case may be, in order to clearly reflect the taxable income of such
corporations.
(i) Effective date. --
The amendments to this section made by chapter one hundred
seventy-nine, acts of the Legislature in the year one thousand nine
hundred ninety, shall apply to all taxable years ending after the
eighth day of March, one thousand nine hundred ninety. Amendments
to this article enacted by this act in the year one thousand nine
hundred ninety-six shall apply to taxable years beginning on or
after the first day of January, one thousand nine hundred ninety-
six, except that financial organizations that are part of an
affiliated group may elect, after the effective date of this act,
to file a consolidated return prepared in accordance with the
provisions of this section, as amended, and subject to applicable
statutes of limitation, for taxable years beginning on or after the
first day of January, one thousand nine hundred ninety-one, but
before the first day of January, one thousand nine hundred ninety-
six, notwithstanding provisions then in effect prohibiting out-of-
state financial organizations from filing consolidated returns for
those years: Provided, That when the statute of limitation on
filing an amended return for any of those years expires before the
first day of July, one thousand nine hundred ninety-six, the
consolidated return for such year, if filed, must be filed by said
first day of July.
(j) Combined reporting required. --
For tax years beginning on and after the first day of January,
two thousand nine, any taxpayer engaged in a unitary business with
one or more other corporations shall file a combined report which
includes the income, determined under section thirteen-d or
thirteen-c of this article, and the allocation and apportionment of
income provisions of this article, of all corporations that are
members of the unitary business, and such other information as may
be required by the Tax Commissioner.
(k) Combined reporting at Tax Commissioner's discretion. --
(1) The Tax Commissioner may require the combined report to
include the income and associated apportionment factors of any
persons that are not included pursuant to subsection (j) of this
section, but that are members of a unitary business, in order to
reflect proper apportionment of income of the entire unitary
businesses. The Tax Commissioner may require combination of
persons that are not or would not be doing business in this state
pursuant to this section.
(2) If the Tax Commissioner determines that the reported
income or loss of a taxpayer engaged in a unitary business with any
person not included pursuant to subsection (j) of this section
represents an avoidance or evasion of tax by such taxpayer, the Tax
Commissioner may, on a case-by-case basis, require all or any part
of the income and associated apportionment factors of such person
be included in the taxpayer's combined report.
(3) With respect to inclusion of associated apportionment factors pursuant to this section, the Tax Commissioner may require
the exclusion of any one or more of the factors, the inclusion of
one or more additional factors which will fairly represent the
taxpayer's business activity in this state, or the employment of
any other method to effectuate a proper reflection of the total
amount of income subject to apportionment and an equitable
allocation and apportionment of the taxpayer's income.
§11-24-13c. Determination of taxable income or loss using
combined report.
(a) The use of a combined report does not disregard the
separate identities of the taxpayer members of the combined group.
Each taxpayer member is responsible for tax based on its taxable
income or loss apportioned or allocated to this state, which shall
include, in addition to other types of income, the taxpayer
member's apportioned share of business income of the combined
group, where business income of the combined group is calculated as
a summation of the individual net business incomes of all members
of the combined group. A member's net business income is determined
by removing all but business income, expense and loss from that
member's total income, as provided in this section and section
thirteen-d of this article.
(b) Components of income subject to tax in this state;
application of tax credits and post apportionment deductions. --
(1) Each taxpayer member is responsible for tax based on its
taxable income or loss apportioned or allocated to this state,
which shall include:
(A) Its share of any business income apportionable to this
state of each of the combined groups of which it is a member,
determined under subsection (c) of this section;
(B) Its share of any business income apportionable to this
state of a distinct business activity conducted within and without
the state wholly by the taxpayer member, determined under the
provisions for apportionment of business income set forth in this
article;
(C) Its income from a business conducted wholly by the
taxpayer member entirely within the state;
(D) Its income sourced to this state from the sale or exchange
of capital or assets, and from involuntary conversions, as
determined under subsection (g), section thirteen-d of this
article;
(E) Its nonbusiness income or loss allocable to this state,
determined under the provisions for allocation of nonbusiness
income set forth in this article;
(F) Its income or loss allocated or apportioned in an earlier
year, required to be taken into account as state source income
during the income year, other than a net operating loss; and
(G) Its net operating loss carryover. If the taxable income
computed pursuant to this section and section thirteen-d of this
article results in a loss for a taxpayer member of the combined
group, that taxpayer member has a West Virginia net operating loss,
subject to the net operating loss limitations, and carryover
provisions of this article. This West Virginia net operating loss is applied as a deduction in a prior or subsequent year only if
that taxpayer has West Virginia source positive net income, whether
or not the taxpayer is or was a member of a combined reporting
group in the prior or subsequent year.
(2) Except where otherwise provided, no tax credit or post-
apportionment deduction earned by one member of the group, but not
fully used by or allowed to that member, may be used, in whole or
in part, by another member of the group or applied, in whole or in
part, against the total income of the combined group; and a post-
apportionment deduction carried over into a subsequent year as to
the member that incurred it, and available as a deduction to that
member in a subsequent year, will be considered in the computation
of the income of that member in the subsequent year, regardless of
the composition of that income as apportioned, allocated or wholly
within this state.
(c) Determination of taxpayer's share of the business income
of a combined group apportionable to this state. --
The taxpayer's share of the business income apportionable to
this state of each combined group of which it is a member shall be
the product of:
(1) The business income of the combined group determined under
section thirteen-d of this article; and
(2) The taxpayer member's apportionment percentage, determined
in accordance with this article, associated with the combined
group's unitary business in this state, and including in the
denominator the property, payroll and sales of all members of the combined group, including the taxpayer, which property, payroll and
sales are associated with the combined group's unitary business
wherever located. The property, payroll and sales of a partnership
shall be included in the determination of the partner's
apportionment percentage in proportion to a ratio the numerator of
which is the amount of the partner's distributive share of
partnership's unitary income included in the income of the combined
group in accordance with section thirteen-d of this article, and
the denominator of which is the amount of the partnership's total
unitary income.
§11-24-13d. Determination of the business income of the combined
group.
The business income of a combined group is determined as
follows:
(a) From the total income of the combined group, determined
under subdivision (b) of this section, subtract any income, and add
any expense or loss, other than the business income, expense or
loss of the combined group.
(b) Except as otherwise provided, the total income of the
combined group is the sum of the income of each member of the
combined group determined under federal income tax laws, as
adjusted for state purposes, as if the member were not consolidated
for federal purposes. The income of each member of the combined
group shall be determined as follows:
(1) For any member incorporated in the United States, or
included in a consolidated federal corporate income tax return, the income to be included in the total income of the combined group
shall be the taxable income for the corporation after making
allowable adjustments under this article.
(2) For any member not included in paragraph (1) of this
subdivision, the income to be included in the total income of the
combined group shall be determined as follows:
(A) A profit and loss statement shall be prepared for each
foreign branch or corporation in the currency in which the books of
account of the branch or corporation are regularly maintained.
(B) Adjustments shall be made to the profit and loss statement
to conform it to the accounting principles generally accepted in
the United States for the preparation of such statements except as
modified by this regulation.
(C) Adjustments shall be made to the profit and loss statement
to conform it to the tax accounting standards required by this
article.
(D) Except as otherwise provided by regulation, the profit and
loss statement of each member of the combined group, and the
apportionment factors related thereto, whether United States or
foreign, shall be translated into the currency in which the parent
company maintains its books and records.
(E) Income apportioned to this state shall be expressed in
United States dollars.
(3) In lieu of the procedures set forth in paragraph (2) of
this subdivision, and subject to the determination of the Tax
Commissioner that it reasonably approximates income as determined under this article, any member not included in paragraph (1) of
this subdivision may determine its income on the basis of the
consolidated profit and loss statement which includes the member
and which is prepared for filing with the Securities and Exchange
Commission by related corporations. If the member is not required
to file with the Securities and Exchange Commission, the Tax
Commissioner may allow the use of the consolidated profit and loss
statement prepared for reporting to shareholders and subject to
review by an independent auditor. If above statements do not
reasonably approximate income as determined under this article, the
Tax Commissioner may accept those statements with appropriate
adjustments to approximate that income.
(c) If a unitary business includes income from a partnership,
the income to be included in the total income of the combined group
shall be the member of the combined group's direct and indirect
distributive share of the partnership's unitary business income.
(d) All dividends paid by one to another of the members of the
combined group shall, to the extent those dividends are paid out of
the earnings and profits of the unitary business included in the
combined report, in the current or an earlier year, be eliminated
from the income of the recipient. This provision shall not apply
to dividends received from members of the unitary business which
are not a part of the combined group.
(e) Except as otherwise provided by regulation, business
income from an intercompany transaction between members of the same
combined group shall be deferred in a manner similar to 26 CFR 1.1502-13. Upon the occurrence of any of the following events,
deferred business income resulting from an intercompany transaction
between members of a combined group shall be restored to the income
of the seller, and shall be apportioned as business income earned
immediately before the event:
(1) The object of a deferred intercompany transaction is:
(A) Resold by the buyer to an entity that is not a member of
the combined group;
(B) Resold by the buyer to an entity that is a member of the
combined group for use outside the unitary business in which the
buyer and seller are engaged; or
(C) Converted by the buyer to a use outside the unitary
business in which the buyer and seller are engaged; or
(2) The buyer and seller are no longer members of the same
combined group, regardless of whether the members remain unitary.
(f) A charitable expense incurred by a member of a combined
group shall, to the extent allowable as a deduction pursuant to
Internal Revenue Code Section 170, be subtracted first from the
business income of the combined group (subject to the income
limitations of that section applied to the entire business income
of the group), and any remaining amount shall then be treated as a
nonbusiness expense allocable to the member that incurred the
expense (subject to the income limitations of that section applied
to the nonbusiness income of that specific member). Any charitable
deduction disallowed under the foregoing rule, but allowed as a
carryover deduction in a subsequent year, shall be treated as originally incurred in the subsequent year by the same member, and
the rules of this section shall apply in the subsequent year in
determining the allowable deduction in that year.
(g) Gain or loss from the sale or exchange of capital assets,
property described by Internal Revenue Code Section 1231(a)(3), and
property subject to an involuntary conversion, shall be removed
from the total separate net income of each member of a combined
group and shall be apportioned and allocated as follows.
(1) For each class of gain or loss (short-term capital, long-
term capital, Internal Revenue Code Section 1231, and involuntary
conversions) all members' business gain and loss for the class
shall be combined (without netting between such classes), and each
class of net business gain or loss separately apportioned to each
member using the member's apportionment percentage determined under
subsection (c), section thirteen-c of this article.
(2) Each taxpayer member shall then net its apportioned
business gain or loss for all classes, including any such
apportioned business gain and loss from other combined groups,
against the taxpayer member's nonbusiness gain and loss for all
classes allocated to this state, using the rules of Internal
Revenue Code Sections 1231 and 1222, without regard to any of the
taxpayer member's gains or losses from the sale or exchange of
capital assets, Section 1231 property, and involuntary conversions
which are nonbusiness items allocated to another state.
(3) Any resulting state source income (or loss, if the loss is
not subject to the limitations of Internal Revenue Code Section 1211) of a taxpayer member produced by the application of the
preceding subsections shall then be applied to all other state
source income or loss of that member.
(4) Any resulting state source loss of a member that is
subject to the limitations of Section 1211 shall be carried over by
that member, and shall be treated as state source short-term
capital loss incurred by that member for the year for which the
carryover applies.
(h) Any expense of one member of the unitary group which is,
directly or indirectly, attributable to the nonbusiness or exempt
income of another member of the unitary group shall be allocated to
that other member as corresponding nonbusiness or exempt expense,
as appropriate.
§11-24-13e. Designation of surety.
As a filing convenience, and without changing the respective
liability of the group members, members of a combined reporting
group may annually elect to designate one taxpayer member of the
combined group to file a single return in the form and manner
prescribed by the department, in lieu of filing their own
respective returns, provided that the taxpayer designated to file
the single return consents to act as surety with respect to the tax
liability of all other taxpayers properly included in the combined
report, and agrees to act as agent on behalf of those taxpayers for
the year of the election for tax matters relating to the combined
report for that year. If for any reason the surety is unwilling or
unable to perform its responsibilities, tax liability may be assessed against the taxpayer members.
§11-24-13f. Water's-edge election; initiation and withdrawal.
(a) Water's-edge election. --
Taxpayer members of a unitary group that meet the requirements
of subsection (b) of this section may elect to determine each of
their apportioned shares of the net business income or loss of the
combined group pursuant to a water's-edge election. Under such
election, taxpayer members shall take into account all or a portion
of the income and apportionment factors of only the following
members otherwise included in the combined group pursuant to
section thirteen-a of this article:
(1) The entire income and apportionment factors of any member
incorporated in the United States or formed under the laws of any
state, the District of Columbia or any territory or possession of
the United States;
(2) The entire income and apportionment factors of any member,
regardless of the place incorporated or formed, if the average of
its property, payroll and sales factors within the United States is
20 percent or more;
(3) The entire income and apportionment factors of any member
which is a domestic international sales corporation as described in
Internal Revenue Code Sections 991 to 994, inclusive; a foreign
sales corporation as described in Internal Revenue Code Sections
921 to 927, inclusive; or any member which is an export trade
corporation, as described in Internal Revenue Code Sections 970 to
971, inclusive;
(4) Any member not described in subdivision (1), (2) or (3) of
this subsection shall include the portion of its income derived
from or attributable to sources within the United States, as
determined under the Internal Revenue Code without regard to
federal treaties, and its apportionment factors related thereto;
(5) Any member that is a "controlled foreign corporation", as
defined in Internal Revenue Code Section 957, to the extent of the
income of that member that is defined in Section 952 of Subpart F
of the Internal Revenue Code ("Subpart F income") not excluding
lower-tier subsidiaries' distributions of such income which were
previously taxed, determined without regard to federal treaties,
and the apportionment factors related to that income; any item of
income received by a controlled foreign corporation shall be
excluded if such income was subject to an effective rate of income
tax imposed by a foreign country greater than ninety percent of the
maximum rate of tax specified in Internal Revenue Code Section 11;
(6) Any member that earns more than twenty percent of its
income, directly or indirectly, from intangible property or
service-related activities that are deductible against the business
income of other members of the combined group, to the extent of
that income and the apportionment factors related thereto; and
(7) The entire income and apportionment factors of any member
that is doing business in a tax haven, where "doing business in a
tax haven" is defined as being engaged in activity sufficient for
that tax haven jurisdiction to impose a tax under United States
constitutional standards. If the member's business activity within a tax haven is entirely outside the scope of the laws, provisions
and practices that cause the jurisdiction to meet the criteria set
forth in the definition of a tax haven, the activity of the member
shall be treated as not having been conducted in a tax haven.
(b) Initiation and withdrawal of election. --
(1) A water's-edge election is effective only if made on a
timely filed, original return for a tax year by every member of the
unitary business subject to tax under this article. The Tax
Commissioner shall develop rules and regulations governing the
impact, if any, on the scope or application of a water's-edge
election, including termination or deemed election, resulting from
a change in the composition of the unitary group, the combined
group, the taxpayer members and any other similar change.
(2) Such election shall constitute consent to the reasonable
production of documents and taking of depositions in accordance
with the provisions of this code.
(3) In the discretion of the Tax Commissioner, a water's-edge
election may be disregarded, in part or in whole, and the income
and apportionment factors of any member of the taxpayer's unitary
group may be included in the combined report without regard to the
provisions of this section, if any member of the unitary group
fails to comply with any provision of this article or if a person
otherwise not included in the water's-edge combined group was
availed of with a substantial objective of avoiding state income
tax.
(4) A water's-edge election is binding for and applicable to the tax year it is made and all tax years thereafter for a period
of ten years. It may be withdrawn or reinstituted after withdrawal,
prior to the expiration of the ten-year period, only upon written
request for reasonable cause based on extraordinary hardship due to
unforeseen changes in state tax statutes, law or policy and only
with the written permission of the Tax Commissioner. If the Tax
Commissioner grants a withdrawal of election, he or she shall
impose reasonable conditions as necessary to prevent the evasion of
tax or to clearly reflect income for the election period prior to
or after the withdrawal. Upon the expiration of the ten-year
period, a taxpayer may withdraw from the water's-edge election.
Such withdrawal must be made in writing within one year of the
expiration of the election and is binding for a period of ten
years, subject to the same conditions as applied to the original
election. If no withdrawal is properly made, the water's-edge
election shall be in place for an additional ten-year period,
subject to the same conditions as applied to the original election.
§11-24-24. Credit for income tax paid to another state.
(a) Effective for taxable years beginning on or after the
first day of January, one thousand nine hundred ninety-one, and
notwithstanding any provisions of this code to the contrary, any
financial organization, the business activities of which take
place, or are deemed to take place, entirely within this state,
shall be allowed a credit against the tax imposed by this article
for any taxable year for taxes paid to another state. That credit
shall be equal in amount to the lesser of:
(1) The taxes such financial organization shall actually have
paid, which payments were made on or before the filing date of the
annual return required by this article, to any other state, and
which tax was based upon or measured by the financial
organization's net income and was paid with respect to the same
taxable year; or
(2) The amount of such tax the financial organization would
have paid if the rate of tax imposed by this article is applied to
the tax base determined under the laws of such other state.
(b) Any additional payments of such tax to other states, or to
political subdivisions thereof, by a financial organization
described in this section, and any refunds of such taxes, made or
received by such financial organization with respect to the taxable
year, but after the due date of the annual return required by this
article for the taxable year, including any extensions, shall
likewise be accounted for in the taxable year in which such
additional payment is made or such refund is received by the
financial organization.
(c) For tax years beginning on or after the first day of
January, two thousand nine, the provisions of this section are null
and void and of no force or effect.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 749--A Bill to
amend the Code of West
Virginia, 1931, as amended,
by adding thereto a new section, designated §11-23-5b; to amend and reenact §11-23-6 and §11-23-27
of said code;
to amend and reenact §11-24-1, §11-24-3a, §11-24-7,
§11-24-13a and §11-24-24
of said code; and to amend said code by
adding thereto four new sections, designated §11-24-13c, §11-24-
13d, §11-24-13e and §11-24-13f, all relating to business taxes
generally; reducing the business franchise tax; and requiring
combined reporting of certain taxes upon businesses.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 749, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 749) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 749) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 194, Relating to appeal
bonds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-14. Appeal bond generally; limitation on amount.
(a)When required by the court, an appeal shall not take
effect until bond is given by the appellants or petitioners, or one of them, or some other person, in a penalty to be fixed by the
court or judge by or in which the appeal is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform
the judgment and to pay to the opposite party, and to any person
injured, all such costs and damages as they, or either of them, may
incur or sustain by reason of said appeal, in case such judgment,
or such part, be affirmed, or the appeal be dismissed, and also, to
pay all damages, costs and fees, which may be awarded against or
incurred by the appellant or petitioners; and if it is an appeal
from a judgment dissolving an injunction, or dismissing a bill of
injunction, with a further condition, to indemnify and save
harmless the surety in the injunction bond against loss or damage
in consequence of his or her suretyship; and with condition when no
supersedeas is awarded to pay such specific damages and such costs
and fees as may be awarded or incurred: Provided, That whenever an
appeal is awarded in any action or suit wherein a judgment for the
payment of money has been entered against an insured in an action
which is defended by an insurance corporation, or other insurer, on
behalf of the insured under a policy of insurance, the limit of
liability of which is less than the amount of said judgment,
execution on the judgment to the extent of the policy coverage
shall be stayed until final determination of such appeal and no
execution shall be issued, or action brought, maintained or
continued against such insured, insurance corporation or other
insurer, for the amount of such judgment so stayed, by either the
injured party, the insured or the legal representative, heir or assigns of any of them, during the pendency of such proceeding,
provided such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was
entered a sworn statement of one of its officers describing the
nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some
other person for him or her a bond in a penalty to be fixed by the
court or judge by or in which the appeal is allowed or entered, not
to exceed the amount of such insurance coverage set out in the
sworn statement above required, with condition to pay the amount of
such coverage upon said judgment if the judgment or such part is
affirmed or the appeal is dismissed, plus interest on said sum and
cost;
(3) Serve a copy of such sworn statement and bond upon the
judgment creditor or his or her attorney;
(4) Deliver or mail to the insured at the latest address of
the insured appealing upon the records of such insurance
corporation, or other insurer, written notice that execution on
such judgment to the extent that it is not covered by such
insurance is not stayed in respect to the insured: Provided, That
the filing of a bond by the insured or someone for him or her,
conditioned upon the payment of the balance of the judgment and
interest not stayed by the insured as aforesaid if the judgment is
affirmed or the appeal is dismissed, shall stay execution on the
balance of said judgment not covered by such insurance: Provided,
however, That the filing of such statement and bond hereunder by an insurance corporation or other insurer shall not thereby make such
insurance corporation or other insurer a party to such action,
either in the trial court or in the appellate court.
(b) Except for bonds required under section four, article
eleven-a, chapter four of this code, an appeal bond required by a
court in accordance with this section may not exceed the amount of
the total judgment, which includes the actual judgment, plus costs,
interest and fees: Provided, That for all verdicts returned or
judgments rendered on or after the first day of July, two thousand
seven, in which the judgment exceeds fifty million dollars, the
court shall require an appeal bond of no more than
fifty million
dollars
.
For purposes of this subsection, multiple judgments
resulting from cases that have been consolidated or aggregated for
purpose of trial proceedings shall be treated as a single judgment.
(c) If the appellee proves by a preponderance of the evidence
that the appellant is dissipating or diverting assets outside the
ordinary course of business, thereby impairing the appellant's
ability to pay the ultimate judgment,
the court is not bound by the
limitations stated in subsection (b) of this section and may set
the appeal bond at any amount not to exceed the total judgment.
(d) The maximum amount allowed for a bond under subsection (b)
of this section shall be adjusted on the first day of July, two
thousand twelve, by an amount to reflect the annual aggregate
percentage change in the Federal Consumer Price Index for All Urban
Consumers, as published by the United States Department of Labor
for the immediately preceding five years, and shall thereafter be adjusted on the first day of July every five years after that
initial adjustment by an amount determined by the aggregate change
in the Federal Consumer Price Index for All Urban Consumers since
the previous adjustment.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 194--A Bill to amend and
reenact §58-5-14 of the Code of West Virginia, 1931, as amended,
relating to appeal bonds; limiting bond amounts; consolidating
multiple judgments for bonding purposes; providing exceptions to
bonding limitations; and providing for the adjustment of the appeal
bonding limitations to reflect changes in the consumer price index.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 194, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 194) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
January 1, 2008, and requested the concurrence of the Senate in the
changed effective date, as to
Eng. Com. Sub. for House Bill No. 2253, Providing certain
correctional officers be transferred into the civil service system
as covered employees.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in
the changed effective date of the bill, that being to take effect
January 1, 2008, instead of ninety days from passage.
Senator Chafin moved that the bill take effect January 1,
2008.
On this question,
the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2253) takes effect January 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 75--
Requesting the Joint
Committee on Government and Finance to make a study of the needs of
soldiers and veterans who have been injured in the Iraq/Afghanistan
wars for the purpose of making recommendations on how the state of
West Virginia can assist in getting them the care they deserve.
Whereas, The State of West Virginia values the sacrifices of
its soldiers and veterans and their extraordinary commitment to the
preservation of our liberties in these very dangerous times; and
Whereas, At least twenty-five West Virginians have died in the
Iraq/Afghanistan war and at least one hundred thirty-five have been
seriously wounded; and
Whereas, Our state has one of the largest number of active
duty soldiers and injured soldiers based upon our population; and
Whereas, Many soldiers who would have died in past wars have
been saved by excellent medical care in the field and at military
hospitals, but many who have been saved have lifetime, severe and, sometimes, permanent injuries; and
Whereas, The prevalence of injuries from improvised explosive
devices has resulted in many soldiers who return to our country
suffering from Post Traumatic Stress Syndrome and neurological
damage; and
Whereas, Media stores have revealed that many of our injured
soldiers, after hospital treatment, have been housed in substandard
facilities with mold, insects and vermin; and
Whereas, It has also been disclosed that many with brain
injuries have had to fight incredible battles upon their return
home with the bureaucracy because of lost records, inordinately
high standards to obtain needed benefits and long-term care, etc.;
and
Whereas, Some injured soldiers have gotten lost in the
bureaucracy for more than a year; and
Whereas, Even with family members moving to Washington, D. C.,
to care for them, some injured soldiers have been unable to
maneuver their way through the bureaucracy; and
Whereas, Our federal and state officials have had great
difficulty ascertaining the exact numbers, status and locations of
our injured soldiers; and
Whereas, There are four Veterans' Hospitals in the State of
West Virginia, many public and private hospitals and rehabilitation
centers capable of offering our injured soldiers the care they
need, closer to their families, friends and support networks; and
Whereas, West Virginia has a network of Veterans' Assistance Centers, field offices and volunteer organizations which could be
enlisted to provide assistance to our injured soldiers and
veterans; and
Whereas, It is important for injured soldiers to be sure that
they receive the income and benefits they need for the long-term,
which may depend upon their status as a member of the military or
a veteran; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to review, examine and study the status of the growing
number of soldiers from West Virginia injured in the
Iraq/Afghanistan wars; and, be it
Further Resolved, That the Division of Veterans' Affairs, our
congressional delegation and the State National Guard be enlisted
to study and make recommendations on how the State of West Virginia
can assist in ensuring that our injured soldiers get the care they
need and that their rights, benefits and dignity are protected;
and, be it
Further Resolved, That the findings and recommendations
resulting from the study be presented and reported to the Joint
Committee as soon as possible, and on a periodic basis as
determinations are made regarding findings and recommendations,
together with the drafts of any proposed legislation and funding
estimates that may be necessary to effectuate such recommendations,
in the event that such recommendations could be adopted during a
special session; and, be it
Further Resolved, That the West Virginia State Legislature
notify Washington, D. C., the President of the United States, the
President of the Senate of the United States, the Speaker of the
House of Representatives of the United States and the appropriate
United States Representatives of the State of West Virginia of this
action by forwarding to each of them a certified copy of this
concurrent resolution adopted by the West Virginia Legislature;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2008, 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.
At the request of Senator Chafin, unanimous consent being
granted, the message was taken up for immediate consideration and
reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 96--Requesting the West
Virginia Division of Culture and History to erect an historic
marker near the site of the 1924 Benwood Mine Disaster from funds
available to the division for the purpose of erecting historic
markers.
Whereas, The state's third worst mine disaster occurred on
April 28, 1924, at a Wheeling Steel Corporation mine in Benwood;
and
Whereas, On that morning one-half hour after 119 miners
entered the mine, an explosion occurred killing all of them; and
Whereas, It is appropriate for a marker to be erected and
dedicated to the miners who lost their lives in this devastating
tragedy; and
Whereas, The marker would be a reminder that coal mining is a
dangerous occupation and that it is essential that we should do all
we can to ensure miner safety; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Culture and History is hereby requested
to erect an historic marker near the site of the 1924 Benwood Mine
Disaster; and, be it
Further Resolved, That the Commissioner of the Division of
Culture and History is hereby requested to cause to be fabricated
an appropriate historical marker near the site of the 1924 Benwood
mine disaster from funds available to the division for the purpose
of erecting historic markers; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this resolution to the Commissioner of
the Division of Culture and History and the Secretary of the
Department of Education and the Arts.
At the request of Senator Chafin, unanimous consent being
granted, the message was taken up for immediate consideration and
reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 82--Requesting that the Joint
Committee on Government and Finance conduct a study of municipal
annexation under article six, chapter eight of the West Virginia
Code to facilitate a more effective and responsive annexation
process.
Whereas, Current West Virginia Code permits a municipality to
annex adjacent territory by three different methods: Election,
petition and minor boundary adjustment; and
Whereas, County Commissions are often impacted by municipal
annexations in their counties; and
Whereas, Residents in territory annexed or proposed to be
annexed under these methods sometimes feel they are not accorded an adequate voice in the annexation process; and
Whereas, A study of the municipal annexation process in this
state and other states would be beneficial to help ensure an
annexation process that is both flexible enough to permit
annexation that is not overly encumbered with legal or
administrative hurdles, yet is responsive enough to provide
meaningful input from affected parties such as county governments;
and
Whereas, Annexation by municipalities often result in
desirable economic growth; and
Whereas, The annexation of unincorporated territory by
municipal corporations greatly affects the citizens and the general
public in both the municipality and the county involved in the
annexation process; and
Whereas, There are potential savings and economic development
opportunities to municipalities and counties involved in the
annexation process and the citizens and general public may benefit
from improvements in the public discussion of annexation;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study municipal annexation to facilitate a more
effective and responsive annexation process; and, be it
Further Resolved, That the Joint Committee on Government and
Finance study the annexation of unincorporated territory by
municipal corporations to insure the fair and equal treatment of citizens and the general public in both the municipality and the
county involved in the annexation process; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2008, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the Legislative 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.
At the request of Senator Chafin, unanimous consent being
granted, the message was taken up for immediate consideration and
reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 42--Requesting the Joint
Committee on Government and Finance reconstitute Select Committee
A on Children, Juveniles and Other Matters during the Interim
period of the Seventy-Eighth Legislature.
Whereas, Select Committee A was appointed following the conclusion of the two thousand five Regular Session of the Seventy-
seventh Legislature of West Virginia in response to a growing need
for immediate oversight of child welfare matters; and
Whereas, In its two year history Select Committee A has begun
the process of a comprehensive review of the child welfare service
delivery within the Bureau for Children and Families; and
Whereas, During the course of its work Select Committee A has
been assigned to study the topics related to recruitment and
retention of Child Protective Service workers, a study of child
advocacy center criteria, parking accessibility issues, volunteer
firefighters and other important issues related to the protection
of children and juveniles; and
Whereas, The efforts of Select Committee A have improved the
delivery of services of child welfare services; and
Whereas, Select Committee A had a strong interest in
continuing to address, among other matters, strengthening
investigation options in child abuse and neglect matters,
increasing penalties for individuals convicted of child abuse and
neglect and addressing the problem of drug and alcohol abuse by
parents relative to child abuse and neglect; and
Whereas, The provisions of legislation passed during a Special
Session of the Legislature called by Governor Joe Manchin in two
thousand six where proposals originally suggested for passage by
the Legislature by Select Committee A, these include the
implementation of a Child Abuse Registry and the Development of a
Special Victim's Unit within the State Police; and
Whereas, The work of Select Committee A should be continued to
provide continued protection to children and families during the
next Interim period; therefore, be it
Resolved by the Legislature of West Virginia:
That Select Committee A be reconstituted during the Interim
period of the Seventy-Eighth Legislature to continue its vital work
on issues pertinent to child abuse and neglect; and, be it
Further Resolved, That Select Committee A report to the
regular session of the Legislature, 2008, on its findings,
conclusions and recommendations, including drafts of any
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 the legislative appropriations to the Joint Committee on
Government and Finance.
At the request of Senator Chafin, unanimous consent being
granted, the message was taken up for immediate consideration and
reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the ninth order of business.
Eng. House Bill No. 2698, Authorizing the board of barbers and
cosmetologists to increase fees for one year.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman, Caruth,
Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Stollings, Sypolt, Unger, Wells and Tomblin (Mr.
President)--26.
The nays were: Barnes, Boley, Facemyer, Hall, Sprouse, White
and Yoder--7.
Absent: Sharpe--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, to take effect July
1, 2007, and requested the concurrence of the Senate in the House
of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2585, Relating to the
renewal of teaching certificates and permanent certification.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On
pages one through six, by striking out all of section two
and inserting in lieu thereof a new section two, to read as
follows:
§5-16-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Agency" means the Public Employees Insurance Agency
created by this article.
(2) "Director" means the Director of the Public Employees
Insurance Agency created by this article.
(3) "Employee" means any person, including an elected officers
officer, who works regularly full time in the service of the State
of West Virginia and, for the purpose of this article only, the
term "employee" also means any person, including an elected
officers officer, who works regularly full time in the service of
a county board of education; a county, city or town in the state;
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; 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; any
comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section
one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; any person
who works regularly full time in the service of the university of
West Virginia board of trustees or the board of directors of the
state college system and Higher Education Policy Commission, the
West Virginia Council for Community and Technical College Education
or a governing board, as defined in section two, article one,
chapter eighteen-b of this code; any person who works regularly
full time in the service of a combined city-county health
department created pursuant to article two, chapter sixteen of this
code; any person designated as a 21st Century Learner Fellow
pursuant to section eleven, article three, chapter eighteen-a of
this code; and any person who works as a long-term substitute as
defined in section one, article one, chapter eighteen-a of this
code, in the service of a county board of education: Provided,
That a long-term substitute who is continuously employed for at
least one hundred thirty-three instructional days during an
instructional term and until the end of that instructional term, is
eligible for the benefits provided in this article until the first
day of September following that instructional term: Provided,
however, That a long-term substitute employed fewer than one
hundred thirty-three instructional days during an instructional
term is eligible for the benefits provided in this article only
during such time as he or she is actually employed as a long-term substitute. On and after the first day of January, one thousand
nine hundred ninety-four, and upon election by a county board of
education to allow elected board members to participate in the
public employees insurance program pursuant to this article, any
person elected to a county board of education shall be considered
to be an "employee" during the term of office of the elected
member. Upon election by the State Board of Education to allow
appointed board members to participate in the public employees
insurance program pursuant to this article, any person appointed to
the State Board of Education is considered an "employee" during the
term of office of the appointed member: Provided further, That the
elected member of a county board of education and the appointed
member of the State Board of Education shall pay the entire cost of
the premium if he or she elects to be covered under this article.
Any matters of doubt as to who is an employee within the meaning of
this article shall be decided by the director.
On or after the first day of July, one thousand nine hundred
ninety-seven, a person shall be considered an "employee" if that
person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in
section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other
participants in that job-sharing arrangement as the "employee" for
purposes of this section; and
(iii) Works at least one third of the time required for a
full-time employee.
(4) "Employer" means the State of West Virginia, its boards,
agencies, commissions, departments, institutions or spending units;
a county board of education; a county, city or town in the state;
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; 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; any
comprehensive community mental health center or comprehensive
mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section
one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; and a
combined city-county health department created pursuant to article
two, chapter sixteen of this code; and a corporation meeting the
description set forth in section three, article twelve, chapter
eighteen-b of this code that is employing a 21st Century Learner
Fellow pursuant to section eleven, article three, chapter eighteen
of this code but the corporation is not considered an employer with
respect to any employee other than a 21st Century Learner Fellow.
Any matters of doubt as to who is an "employer" within the meaning
of this article shall be decided by the director. The term
"employer" does not include within its meaning the national guard.
(5) "Finance board" means the Public Employees Insurance
Agency Finance Board created by this article.
(6) "Person" means any individual, company, association,
organization, corporation or other legal entity, including, but not
limited to, hospital, medical or dental service corporations;
health maintenance organizations or similar organization providing
prepaid health benefits; or individuals entitled to benefits under
the provisions of this article.
(7) "Plan", unless the context indicates otherwise, means the
medical indemnity plan, the managed care plan option or the group
life insurance plan offered by the agency.
(8) "Retired employee" means an employee of the state who
retired after the twenty-ninth day of April, one thousand nine
hundred seventy-one, and an employee of the university of West
Virginia board of trustees, or the board of directors of the state
college system, the Higher Education Policy Commission, the Council
for Community and Technical College Education, a state institution
of higher education or a county board of education who retires on
or after the twenty-first day of April, one thousand nine hundred
seventy-two, and all additional eligible employees who retire on or
after the effective date of this article, meet the minimum
eligibility requirements for their respective state retirement
system and whose last employer immediately prior to retirement
under the state retirement system is a participating employer:
Provided, That for the purposes of this article, the employees who
are not covered by a state retirement system but who are covered by
a state-approved or state-contracted retirement program shall, in
the case of education employees, meet the minimum eligibility requirements of the State Teachers Retirement System and in all
other cases, meet the minimum eligibility requirements of the
Public Employees Retirement System.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2585, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2585) passed with its Senate amended title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2585) takes effect July 1, 2007.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2796, Reducing federal
adjusted gross income for contributions to public institutions of
higher education.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page thirteen, section twelve, line two hundred eleven,
after the word "code" by inserting the words "and those private
eligible institutions set forth in section three, article seven,
chapter eighteen-c of this code";
On page thirteen, section twelve, line two hundred sixteen,
after the word "code" by striking out the semicolon;
On page thirteen, section twelve, line two hundred sixteen,
after the words "code or" by inserting the words "any private
eligible institutions set forth in section three, article seven,
chapter eighteen-c of this code;";
On page thirteen, section twelve, line two hundred twenty,
after the word "education" by inserting the words "or those private
eligible institutions set forth in section three, article seven,
chapter eighteen-c of this code";
And,
On page fourteen, section twelve, line two hundred twenty-
four, after the word "behalf" by inserting the words "or the
governing board of any private eligible institutions set forth in
section three, article seven, chapter eighteen-c of this code".
The bill, as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2796) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2796) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2796--A Bill amend and
reenact §11-21-12 of the Code of West Virginia, 1931, as amended,
relating to providing a modification reducing federal adjusted
gross income for personal income tax purposes for contributions to
certain West Virginia institutions of higher education and certain
educational corporations, trusts, funds or foundations; and
specifying limitations.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2986, Providing advance
notice to the public regarding the pending closure of certain
public or private health care facilities or hospitals.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2986) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2896) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the tenth order of business.
Eng. Com. Sub. for House Bill No. 2390, Relating to the definition of domestic animals and livestock.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
__________
The midnight hour having arrived, the President stated all
unfinished legislative business, with the exception of the budget
bill, had expired due to the time element.
A series of messages from the House of Delegates having been
received at his desk, the following communications were reported by
the Clerk:
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 67, Relating
to school access safety generally.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 68, Improving
coal mine health and safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 121, Tolling
state licensure or registration requirements for active duty military personnel.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its House of Delegates amended title, as to
Eng. Com. Sub. for Senate Bill No. 178, Allowing counties to
increase hotel occupancy tax.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to
take effect from passage, as to
Eng. Com. Sub. for Senate Bill No. 185, Creating Tobacco
Settlement Finance Authority.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 337,
Establishing net greenhouse gas inventory program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, as to
Eng. Senate Bill No. 438, Relating to Investment Management
Board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to take effect from passage, as to
Eng. Senate Bill No. 454, Renaming and restructuring Bureau of
Employment Programs.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2007, of
Eng. Com. Sub. for Senate Bill No. 528, Depositing certain
pesticide license fees into Pesticide Control Fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, to take effect July 1, 2007, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 541, Relating
to public school finance.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 542, Authorizing rules for Higher
Education Policy Commission and Council for Community and Technical
College Education.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to
take effect from passage, as to
Eng. Senate Bill No. 589, Allowing monetary incentives in programs to improve public service.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, to take effect July 1, 2007, as
to
Eng. Com. Sub. for Senate Bill No. 603, Establishing 21st
Century Tools for 21st Century Schools Technology Initiative.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, to take effect July 1, 2007, as
to
Eng. Senate Bill No. 657, Requiring State Board of Education
incorporate 21st Century Skills Initiative into certain standards.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to
take effect from passage, as to
Eng. Com. Sub. for Senate Bill No. 738, Requiring legislative
approval of proposed new or revised existing toll by Parkways
Authority.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report
with its conference amended title, to take effect July 1, 2007, as to
Eng. Senate Bill No. 747, Creating Municipal Home Rule Pilot
Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 62, Requesting Division of
Highways name bridge in Berkeley County "Allensville Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 78, Requesting Joint
Committee on Government and Finance study animal protection laws
for horses.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 82, Requesting Joint
Committee on Government and Finance appoint select interim
committee to study health care reform options.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 83, Requesting Joint
Committee on Government and Finance study permitting public
recreational use of certified managed timberland.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2181, Requiring that annual
reports be recorded on CD-Rom for distribution.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2189, Relating to substitute
service personnel seniority.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2406, Providing that in the
event a yearling was born in another state and transported to this
state, the definition of "Raiser of an accredited West Virginia
horse" does not apply to any pari-mutuel racing facility in
Jefferson County.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2436, Modifying the Nurse
Overtime and Patient Safety Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2558, Relating to donation
and transfer of surplus personal computers and other information
systems, technology and equipment for educational purposes.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2007, of
Eng. Com. Sub. for House Bill No. 2588, Reimbursing tuition
and fees for courses for the renewal of teaching certificates.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2763, Relating to persons
performing financial examinations of insurers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 2831, Relating to transfer of development
rights; eliminating the five year ordinance waiting period.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
July 1, 2007, of
Eng. Com. Sub. for House Bill No. 2940, Increasing the age of
dependents for health insurance coverage.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2945, Providing for tax
credits for apprenticeship training in construction trades.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3018, Limiting the duplication of
publication costs in the administration of certain estates.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 3094, Prohibiting county and
district school officers, teachers and school officials from having
a pecuniary interest in certain contracts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3272, Relating to total return unitrusts.
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Sunday, March 11, 2007, at 12:15 a.m., for an extended
session to complete action on the annual state budget, under
authority of the Governor's proclamation issued March 7, 2007,
extending the first annual session of the seventy-eighth
Legislature until and including the seventeenth day of March, two
thousand seven, solely for that purpose, as being the only
permissive legislation within constitutional purview.
__________