__________*__________
Tuesday, March 4, 2008
FIFTY-SIXTH DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard
Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Monday, March 3, 2008, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report,
which was received:
Your Committee on Rules has had under consideration:
H. C. R. 3, Requesting the Joint Committee on Government and Finance to study current
trends in juvenile crime and the impact of "boot camp" and "scared straight" disciplinary programs
in reducing juvenile crime,
H. C. R. 15, Requesting the Joint Committee on Government and Finance to study the state
of the delivery of health care in West Virginia,
H. C. R. 38, Requesting the Joint Committee on Government and Finance to study historical tourism in West Virginia and the allocation of funds for historical preservation,
S. C. R. 19, Requesting Division of Highways name bridge in Parkersburg, Wood County,
"Blennerhassett Island Bridge",
And,
H. R. 30, Supporting the establishment of the History and Culture Institute of Mining in the
State of West Virginia,
And reports the same back with the recommendation that they each be adopted.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 253, Defining "survey foot",
And,
Com. Sub. for S. B. 740, Reforming Berkeley County commission,
And reports the same back with the recommendation that they each do pass.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 349, Authorizing Miscellaneous Boards and Agencies promulgate
legislative rules,
And,
Com. Sub. for S. B. 657, Creating Alcohol and Drug-Free Workplace Act,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 467, Reauthorizing Dam Safety Rehabilitation Revolving Fund,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 467) was
referred to the Committee on Finance.
On motions for leave, resolutions were introduced (Originating in the Committee on
Government Organization and reported with the recommendation that they each be adopted), which
were read by their titles, as follows:
By Delegates Morgan, Martin, Argento, Beach, Caputo, Eldridge, Hartman, Hatfield,
Higgins, Hutchins, Palumbo, D. Poling, Staggers, Talbott, Canterbury, Cowles, C.
Miller, Porter, Rowan and Schoen:
H. C. R. 87 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the adoption of green building standards for the construction or renovation of public
buildings."
Whereas, Energy costs for public buildings are skyrocketing; and
Whereas, Energy use by public buildings contributes substantially to the problems of
pollution and global warming; and
Whereas, Public buildings can be built and renovated using high-performance methods that
save energy costs, preserve the environment, and make workers and students more productive; and
Whereas, This Legislature is committed to more efficient expenditures of public funds and
increased protection of the health and welfare of West Virginia residents; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the adoption of green building standards for the construction or renovation of public
buildings; and, be it
Further Resolved, That the Joint Committee on Government Finance report to the regular session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Beach, Caputo, Eldridge, Hartman, Higgins, Palumbo,
D. Poling, Swartzmiller, Andes, Canterbury, Cowles, C. Miller, Porter, Rowan and
Schoen:
H. C. R. 88 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the policies and procedures for awarding vendor preferences in state purchasing
contracts."
Whereas, The establishment of consistent policies and procedures for the contracting for
commodities and services is necessary for the smooth operation of the various agencies in state
government; and
Whereas, Certain consideration is given to persons and businesses that are located in this
state or that employ residents of this state; and
Whereas, The Legislature recognizes the need to determine whether current vendor
preferences result in the accomplishment of the goals set forth by the Legislature in enacting the
vendor preferences; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the policies and procedures for awarding vendor preferences in state purchasing contracts;
and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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 the study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
By Delegates Morgan, Martin, Argento, Caputo, Eldridge, Hartman, Higgins, Palumbo,
D. Poling, Staggers, Andes, Canterbury, Porter, Rowan and Schoen:
H. C. R. 89 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the authority and structure of professional regulatory boards."
W
HEREAS
, The West Virginia Legislature is committed to protecting the public through the
establishment of professional and occupational licensing boards and by periodically reviewing the
performance of the regulatory boards; and
W
HEREAS
, Various performance audits of the licensing boards have alerted the Legislature
to issues of policy which could be developed to further enhance the protection of the public; and
W
HEREAS
, Legislative review is necessary to clarify policy issues related to cease and desist
orders for the unlicensed practice of a profession; establishing quorums and serving until successors
are appointed; term limitations; lapsed and expired licenses; grace periods for license renewals; the
issuance of certificates of authorizations; final orders of dismissal; civil and criminal penalties;
requirements concerning website development; and other issues for which disparity may exist among
the boards; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the authority and structure of professional regulatory boards; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Beach, Caputo, Eldridge, Hartman, Hatfield, Hutchins,
Palumbo, D. Poling, Staggers, Andes, Canterbury, Cowles, C. Miller, Porter, Rowan
and Schoen:
H. C. R. 90 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the West Virginia Board of Pharmacy."
Whereas, The practice of pharmacy has undergone dramatic changes in response to the
development of technology and the needs of the citizens of West Virginia; and
Whereas, Free clinics, primary care centers and other providers of health care services have
developed alternative modes of prescription drug delivery under the West Virginia statutes governing
prescribers; and
Whereas, The increasing issue of prescription drug diversion means that a closer
examination of home delivery services and the examination of more secure delivery systems such
as remote dispensing may serve the interests of West Virginians; and
Whereas, The statute governing the Board of Pharmacy should be reviewed to consider any
appropriate and necessary revisions to the laws and rules governing this profession; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the law governing the West Virginia state Board of Pharmacy; and, be it
Further Resolved, That the Joint Committee on Government Finance report to the regular
session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Caputo, Eldridge, Hartman, Hatfield, D. Poling, Canterbury, Porter, Rowan and Schoen:
H. C. R. 91 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the West Virginia Board of Occupational Therapy."
Whereas, The Board regulating the profession of Occupational Therapist is charged with
protecting the public health, safety and welfare, and to assure the availability of high quality
occupational therapy services to the citizens of West Virginia; and
Whereas, Changes in the profession require updates in the framework that governs the
board to ensure it functions properly; and
Whereas, The Legislature is committed to protecting the public through the licensure and
regulation of professions and occupations in this state; and
Whereas, The statute governing the Board of Occupational Therapy should be reviewed to
consider any appropriate and necessary revisions to the laws and rules governing this profession;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the West Virginia Board of Occupational Therapy; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Caputo, Eldridge, Hartman, Canterbury,
Porter and Rowan:
H. C. R. 92 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the Board of Registration for Sanitarians."
Whereas, The board regulating the profession of sanitarians is charged with protecting the
public health, welfare and safety, and to ensure that registered sanitarians are qualified and have
expertise in public health and environmental sanitation; and
Whereas, Changes in the profession require updates in the framework that governs the
board to ensure it is functioning by modern standards; and
Whereas, The Legislature is committed to protecting the public through the licensure and
regulation of professions and occupations in this state; and
Whereas, The statute governing the Board of Registration for Sanitarians should be
reviewed to consider any appropriate and necessary revisions to the laws and rules governing this
profession; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the law governing the Board of Registration for Sanitarians; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Beach, Caputo, Eldridge, Hatfield, Higgins,
Hutchins, Palumbo, D. Poling, Cowles, C. Miller, Porter, Rowan and Schoen:
H. C. R. 93 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the advisability and feasibility of the creation of a new professional licensure category of
marriage and family therapy, including whether this new licensure category should be coordinated
with the regulation of counselors or social workers."
Whereas, There is a shortage of professional behavioral health care services in West Virginia; and,
Whereas, It is in the public interest to provide the people of this state with sufficient,
qualified professional behavioral health care services; and,
Whereas, West Virginia currently has professional licensure boards for counselors, social
workers, psychologists, and other health care providers who now provide marriage and family
therapy services; and,
Whereas, Many states have one licensing board regulating the practice of counseling, social
work, and marriage and family therapy services, and this model should be examined by the
Legislature and Legislative Auditor for application in this state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on Government and Finance to
authorize a study of the advisability and feasibility of the creation of a new professional licensure
category of marriage and family therapy, including whether this new licensure category should be
coordinated with the regulation of counselors or social workers; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Beach, Caputo, Eldridge, Hartman, Hutchins,
Palumbo, Andes, Canterbury, Porter, Rowan and Schoen:
H. C. R. 94 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the Board of Barbers and Cosmetologists."
Whereas, The Board regulating the profession of Barbers and Cosmetologists issued over
thirteen thousand licenses in 2007; and
Whereas, Since the time of the board's inception, numerous changes have occurred in the
practice of these professions that have not been incorporated into the regulatory framework
governing the board; and
Whereas, The Legislature is committed to protecting the public through the licensure and
regulation of professions and occupations in this state; and
Whereas, The statute governing the Board of Barbers and Cosmetologists should be
reviewed to consider any appropriate and necessary revisions to the laws and rules governing these
professions; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the law governing the Board of Barbers and Cosmetologists; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Beach, Caputo, Eldridge, Hartman, Hatfield,
D. Poling, Talbott, Canterbury, Porter, Rowan and Schoen:
H. C. R. 95 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the Board of Registration for Foresters."
Whereas, The Board regulating the profession of forestry is charged with ensuring that
foresters and forestry technicians are qualified to practice in forest protection and management; and
Whereas, The Board of Registration for Foresters has existed since 1963 and numerous
changes have occurred in the profession that should be incorporated into the regulatory framework;
and
Whereas, The Legislature is committed to protecting the public through the licensure and
regulation of professions and occupations in this state; and
Whereas, The statute governing the Board of Registration for Foresters should be reviewed
to consider any appropriate and necessary revisions to the laws and rules governing those profession;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the law governing the Board of Registration for Foresters; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
By Delegates Morgan, Martin, Argento, Caputo, Eldridge, Hartman, Hatfield, D.
Poling, Staggers, Canterbury, C. Miller, Porter, Rowan and Schoen:
H. C. R. 96 - "Requesting that the Joint Committee on Government and Finance authorize
a study of the law governing the West Virginia Board of Veterinary Medicine."
Whereas, The Board regulating the profession of veterinarians, registered veterinary
technicians and certified animal euthanasia technicians was established to protect animals and the
people who interact with them; and
Whereas, Changes in the profession require updates in the law that governs the board to
ensure it is functioning by modern standards; and
Whereas, The Legislature is committed to protecting the public through the licensure and
regulation of professions and occupations in this state; and
Whereas, The statute governing the West Virginia Board of Veterinary Medicine should be reviewed to consider any appropriate and necessary revisions to the laws and rules governing
those professions; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study of the law governing the West Virginia Board of Veterinary Medicine; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, 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.
And,
By Delegates Morgan, Martin, Argento, Caputo, Eldridge, Hartman, Hatfield, Higgins,
Palumbo, D. Poling, Talbott, Andes, Canterbury, C. Miller, Porter, Rowan and Schoen:
H. C. R. 97 - "Requesting that the Joint Committee on Government and Finance authorize
a study on whether the West Virginia Partnership to Promote Community Well-Being established
by Executive Order 8-04 should be codified."
Whereas, The United States Congress has declared that substance abuse is essentially a local
problem, and is best addressed by coordinating the efforts of public and private agencies and by
increasing the number and extent of prevention and intervention services;
Whereas, Congress has further declared its intention to assist state and local communities
by making grants available to those states that establish and maintain a substance abuse and
prevention and intervention planning body;
Whereas, Pursuant to the declarations of Congress, the Governor has established the West
Virginia Partnership to Promote Community Well-Being by Executive Order No. 8-04;
Whereas, The Partnership has been working since its inception to strengthen substance abuse prevention systems, encourage the development of trained professional workforces, implement
evidence-based programming, and support comprehensive and coordinated planning, research and
evaluation services; and
Whereas, It may be in the best interest of the State of West Virginia to codify the
Partnership to maintain and further encourage the receipt of federal assistance to the state; therefore
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study on whether the West Virginia Partnership to Promote Community Well-Being established by
Executive Order 8-04 should be codified; and, be it
Further Resolved, That the Legislature, the Governor, and all state agencies with
representatives on the Partnership cooperate in the study of the codification of the West Virginia
Partnership to Promote Community Well-Being; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2009, 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.
The Speaker referred the resolutions (H. C. R. 87, H. C. R. 88, H. C. R. 89, H. C. R.90, H.
C. R.91, H. C. R.92, H. C. R.93, H. C. R.94, H. C. R.95, H. C. R.96 and H. C. R.97) to the
Committee on Rules.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 641, Creating Water Resources Protection and Management Act,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 641) to the Committee on Finance was
abrogated.
Chairman Fleischauer, from the Committee on Constitutional Revision, submitted the
following report, which was received:
Your Committee on Constitutional Revision has had under consideration:
S. J. R. 12, Proposing amendment to Constitution designated Manufacturing Inventory and
Tangible Personal Property Tax Exemption Amendment,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the resolution (S. J. R. 12) was
referred to the Committee on Finance.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 208, Clarifying all Consolidated Public Retirement Board systems are
included in employer pick-up provisions,
And,
S. B. 541, Continuing personal income tax adjustment to certain retirees' gross income,
And reports the same back with the recommendation that they each do pass.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 201, Providing terms for certain retirement benefits disqualification,
Com. Sub. for S. B. 207, Relating to Deputy Sheriff Retirement System Act,
Com. Sub. for S. B. 227, Relating to State Teachers Retirement System,
Com. Sub. for S. B. 477, Increasing conservation officers' salaries and length of service,
And,
Com. Sub. for S. B. 634, Creating Military Authority Act,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
At the respective requests of Delegate DeLong, and by unanimous consent, the bills received
on committee reports which were not referred to a second committee in earlier proceedings were
taken up for further consideration, each read a first time and ordered to second reading, as follows:
Com. Sub. for S. B. 201, Providing terms for certain retirement benefits disqualification,
Com. Sub. for S. B. 207, Relating to Deputy Sheriff Retirement System Act,
Com. Sub. for S. B. 208, Clarifying all Consolidated Public Retirement Board systems are
included in employer pick-up provisions,
Com. Sub. for S. B. 227, Relating to State Teachers Retirement System,
S. B. 253, Defining "survey foot",
Com. Sub. for S. B. 349, Authorizing Miscellaneous Boards and Agencies promulgate
legislative rules,
Com. Sub. for S. B. 477, Increasing conservation officers' salaries and length of service,
S. B. 541, Continuing personal income tax adjustment to certain retirees' gross income,
Com. Sub. for S. B. 634, Creating Military Authority Act.
S. B. 641, Creating Water Resources Protection and Management Act,
Com. Sub. for S. B. 657, Creating Alcohol and Drug-Free Workplace Act,
And,
Com. Sub. for S. B. 740, Reforming Berkeley County commission.
Messages from the Executive
Mr. Speaker, Mr. Thompson, laid before the House a communication from His Excellency,
the Governor, which was read by the Clerk as follows:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston
February 29, 2008
EXECUTIVE MESSAGE NO. 2
The Honorable Richard Thompson
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that the
following 2006-2007 annual reports have been received in the Office of the Governor:
1.Accountancy, West Virginia Board of
2.Acupuncture, West Virginia Board of
3.Architects, West Virginia Board of
4.Attorney General, Office of the
5.Barbers and Cosmetologists, West Virginia Board of
6.Behavioral Health, Office of the Ombudsman for
7.Board of Education, West Virginia
8.Center for Excellence in Disabilities, West Virginia University
9.Child Enforcement Commission, West Virginia
10.Children's Health Insurance Program, West Virginia Department of Administration
11.Chiropractic, West Virginia Board of
12.Commercial Motor Vehicle Weight and Safety Enforcement Advisory Committee,
West Virginia Public Service Commission
13.Community Corrections Act, West Virginia, Governor's Committee on Crime,
Delinquency and Correction
14.Consumer Advocate, Division of, Office of the Insurance Commission, West
Virginia Department of Revenue
15.Corrections, Division of, West Virginia Department of Military Affairs and Public
Safety
16.Counseling, West Virginia Board of Examiners in
17.Court of Claims, West Virginia
18.Court System, West Virginia Supreme Court of Appeals
19.Deaf and Hard of Hearing, West Virginia Commission for the
20.Dental Examiners,
West Virginia Board of
21.Development Office, West Virginia
22.Dietitians,
West Virginia Board of
Licensed; 2006-2007 Annual Report and
Biennium Report for 2004-2005 and 2005-2006
23.Disability Retirement Experience, West Virginia State Police, by West Virginia
Consolidated Public Retirement Board for Death, Disability and Retirement Fund
(Plan A) and State Police Retirement System (Plan B.)
24.Economic Development Authority, West Virginia
25.Energy, Division of, West Virginia Department of Commerce
26.Equal Employment Opportunity, West Virginia Office of
27.Fire Commission, Fire Marshal's Office, West Virginia State
28.Geological and Economic Survey, West Virginia
29.Groundwater Programs and Activities, West Virginia Department of Environmental
Protection; Biennial Report 2005-2007
30.Head Start Program, P.R.I.D.E. in Logan, Inc.
31.Human Rights Commission, West Virginia
32.Juvenile Services, Division of, West Virginia Department of Military Affairs and
Public Safety
33.Labor, West Virginia Division of
34.Logging Sediment Control Act, Division of Forestry, West Virginia Department of Commerce
35.Long Term Care, Office of Health Facility Licensure and Certification, Department
of Health and Human Resources
36.Mason County Schools
37.Medicine,
West Virginia Board of
; Volumes I and II
38.Massage Therapy Board, West Virginia
39.Miners' Health, Safety and Training, Office of, West Virginia Department of
Commerce
40.Motor Vehicles, Division of, West Virginia Department of Transportation
41.Natural Resources, Division of, West Virginia Department of Commerce
42.Neighborhood Investment Program, West Virginia Development Office
43.Nursing Home Administrators Licensing Board, West Virginia
44.Oil and Gas Inspectors' Examining Board, West Virginia Department of
Environmental Protection
45.Osteopathy, West Virginia Board of
46.Parole Board, West Virginia Department of Military Affairs and Public Safety
47.Partnership to Promote Community Well-Being, West Virginia
48.Physical Therapy, West Virginia Board of; Biennium Report
49.Professional Engineers of West Virginia, State Board of Registration for
50.Psychologists, West Virginia Board of Examiners of
51.Public Employees Grievance Board, West Virginia Department of Administration
52.Purchase of Commodities and Services from the Handicapped, Governor's
Committee for, West Virginia Department of Administration.
53.Real Estate Commission, West Virginia
54.Registered Professional Nurses, West Virginia Board of Examiners for; Biennium
Report 2005-2007
55.Rehabilitation Services, Division of, West Virginia Department of Education and the
Arts
56.Risk and Insurance Management, West Virginia Board of
57.Ron Yost Personal Assistance Services Board, West Virginia Statewide Independent
Living Council, West Virginia Division of Rehabilitation Services
58.Sanitarians, West Virginia Board of Registration for
59.Senior Services, West Virginia Bureau of
60.Speech-Language Pathology and Audiology, West Virginia Board of Examiners for
61.State Police, West Virginia
62.Statewide Independent Living Council, West Virginia Division of Rehabilitation
Services, West Virginia Department of Education and the Arts
63.Tax Increment Financing Act, West Virginia Development Office.
64.Transportation Coordinating Council, West Virginia
65.Veterans Affairs, Division of, West Virginia Department of Military Affairs and
Public Safety
66.Veterinary Medicine, West Virginia Board of
67.Water Development Authority, West Virginia
68.Workforce Investment Board, Inc., Northern Panhandle, Region 5
Very truly yours,
Joe Manchin III
Governor.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 4478, Limiting the mid-year transfer of certain school employees working with
students with exceptionalities.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section eight, line thirty-three, after the word "to", by inserting the word
"county".
On page five, section eight, line fifty-seven, after the word "to", by inserting the word
"county".
On page five, section eight, line sixty-one, after the word "to", by inserting the word
"county".
On page five, section eight, line sixty-four, after the word "disorder;", by inserting the word
"and".
On page six, section eight, line eighty, by striking out the words "autistic students" and
inserting in lieu thereof the words "students with autism".
On page six, section eight, line ninety-two, by striking out the words "autistic students" and
inserting in lieu thereof the words "students with autism".
And,
On page eight, section eight, line one hundred seventeen, by striking out "(10)" and inserting
in lieu thereof "(j)".
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken, (Roll No. 250), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4478) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 4677, Reducing the requirement that the Director of Personnel must have five years experience in personnel management.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §6-7-2a and §29-6-7 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and
salaries of such officers.
(a) Each of the following appointive state officers named in this subsection shall be
appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive
state officers serves at the will and pleasure of the Governor for the term for which the Governor was
elected and until the respective state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing qualifications for holding each respective
office and each has and is hereby granted all of the powers and authority and shall perform all of the
functions and services heretofore vested in and performed by virtue of existing law respecting each
office.
Prior to the first day of July, two thousand six, each such named appointive state officer shall
continue to receive the annual salaries they were receiving as of the effective date of the enactment
of this section in two thousand six, and thereafter, notwithstanding any other provision of this code
to the contrary, the annual salary of each named appointive state officer shall be as follows:
Commissioner, Division of Highways, ninety-two thousand five hundred dollars;
Commissioner, Division of Corrections, eighty thousand dollars; Director, Division of Natural
resources, seventy-five thousand dollars; Superintendent, State Police, eighty-five thousand dollars; Commissioner, Division of Banking, seventy-five thousand dollars;; Commissioner, Division of
Culture and History, sixty-five thousand dollars; Commissioner, Alcohol Beverage Control
Commission, seventy-five thousand dollars; Commissioner, Division of Motor Vehicles, seventy-
five thousand dollars; Director, Division of Personnel, seventy thousand dollars; Chairman, Health
Care Authority, eighty thousand dollars; members, Health Care Authority, seventy thousand dollars;
Director, Human Rights Commission, fifty-five thousand dollars; Commissioner, Division of Labor,
seventy thousand dollars; Director, Division of Veterans' Affairs, sixty-five thousand dollars;
Chairperson, Board of Parole, fifty-five thousand dollars; members, Board of Parole, fifty thousand
dollars; members, Employment Security Review Board, seventeen thousand dollars; and
Commissioner, Bureau of Employment Programs, seventy-five thousand dollars. Secretaries of the
departments shall be paid an annual salary as follows: Health and Human Resources, ninety-five
thousand dollars; Transportation, ninety-five thousand dollars; Revenue, ninety-five thousand
dollars; Military Affairs and Public Safety, ninety-five thousand dollars; Administration, ninety-five
thousand dollars; Education and the Arts, ninety-five thousand dollars; Commerce, ninety-five
thousand dollars; and Environmental Protection, ninety-five thousand dollars: Provided, That any
increase in the salary of any current appointive state officer named in this subsection pursuant to the
reenactment of this subsection during the regular session of the Legislature in two thousand six that
exceeds five thousand dollars shall be paid to such officer or his or her successor beginning on the
first day of July, two thousand six, in annual increments of five thousand dollars per fiscal year, up
to the maximum salary provided in this subsection.
(b) Each of the state officers named in this subsection shall continue to be appointed in the
manner prescribed in this code and, prior to the first day of July, two thousand six, each of the state
officers named in this subsection shall continue to receive the annual salaries he or she was receiving
as of the effective date of the enactment of this section in two thousand six, and shall thereafter,
notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
Director, Board of Risk and Insurance Management, eighty thousand dollars; Director, Division of Rehabilitation Services, seventy thousand dollars; Director, Division of Personnel,
seventy thousand dollars; Executive Director, Educational Broadcasting Authority, seventy-five
thousand dollars; Secretary, Library Commission, seventy-two thousand dollars; Director, Geological
and Economic Survey, seventy-five thousand dollars; Executive Director, Prosecuting Attorneys
Institute, seventy thousand dollars; Executive Director, Public Defender Services, seventy thousand
dollars; Commissioner, Bureau of Senior Services, seventy-five thousand dollars; Director, State
Rail Authority, sixty-five thousand dollars; Executive Director, Women's Commission, forty-five
thousand dollars; Director, Hospital Finance Authority, thirty-five thousand dollars; member, Racing
Commission, twelve thousand dollars; Chairman, Public Service Commission, eighty-five thousand
dollars; members, Public Service Commission, eighty-five thousand dollars; Director, Division of
Forestry, seventy-five thousand dollars; Director, Division of Juvenile Services, eighty thousand
dollars; and Executive Director, Regional Jail and Correctional Facility Authority, eighty thousand
dollars: Provided, That any increase in the salary of any current appointive state officer named in this
subsection pursuant to the reenactment of this subsection during the regular session of the
Legislature in two thousand six that exceeds five thousand dollars shall be paid to such officer or his
or her successor beginning on the first day of July, two thousand six, in annual increments of five
thousand dollars per fiscal year, up to the maximum salary provided in this subsection.
(c) Each of the following appointive state officers named in this subsection shall be appointed
by the Governor, by and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the term for which the Governor was
elected and until the respective state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing qualifications for holding each respective
office and each has and is hereby granted all of the powers and authority and shall perform all of the
functions and services heretofore vested in and performed by virtue of existing law respecting each
office.
Prior to the first day of July, two thousand six, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment
of this section in two thousand six, and thereafter, notwithstanding any other provision of this code
to the contrary, the annual salary of each named appointive state officer shall be as follows:
Commissioner, State Tax Division, ninety-two thousand five hundred dollars; Commissioner,
Insurance Commission, ninety-two thousand five hundred dollars; Director, Lottery Commission,
ninety-two thousand five hundred dollars; Director, Division of Homeland Security and Emergency
Management, sixty-five thousand dollars; and Adjutant General, ninety-two thousand five hundred
dollars;
(d) No increase in the salary of any appointive state officer pursuant to this section shall be
paid until and unless the appointive state officer has first filed with the State Auditor and the
Legislative Auditor a sworn statement, on a form to be prescribed by the Attorney General, certifying
that his or her spending unit is in compliance with any general law providing for a salary increase
for his or her employees. The Attorney General shall prepare and distribute the form to the affected
spending units.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-7. Director of personnel; appointment; qualifications; powers and duties.
(a) The Secretary of the Department of Administration shall appoint the director. The
director shall be a person knowledgeable of the application of the merit principles in public
employment as evidenced by the obtainment of a degree in business administration, personnel
administration, public administration or the equivalent and or at least five years of administrative
experience in personnel administration. The salary for the director shall be that which is set out in
section two-a, article seven, chapter six of this code.
(b) The director shall:
(1) Consistent with the provisions of this article, administer the operations of the division,
allocating the functions and activities of the division among sections as the director may establish;
(2) Maintain a personnel management information system necessary to carry out the
provisions of this article;
(3) Supervise payrolls and audit payrolls, reports or transactions for conformity with the
provisions of this article;
(4) Plan, evaluate, administer and implement personnel programs and policies in state
government and to political subdivisions after agreement by the parties;
(5) Supervise the employee selection process and employ performance evaluation procedures;
(6) Develop programs to improve efficiency and effectiveness of the public service,
including, but not limited to, employee training, development, assistance and incentives, 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;
(7) Establish pilot programs and other projects for a maximum of one year outside of the
provisions of this article, subject to approval by the board, to be included in the annual report;
(8) Establish and provide for a public employee interchange program and may provide for
a voluntary employee interchange program between public and private sector employees;
(9) Establish an internship program;
(10) Assist the Governor and Secretary of the Department of Administration in general
workforce planning and other personnel matters;
(11) Make an annual report to the Governor and Legislature and all other special or periodic
reports as may be required;
(12) Assess cost for special or other services;
(13) Recommend rules to the board for implementation of this article; and
(14) Conduct schools, seminars or classes for supervisory employees of the state regarding
handling of complaints and disciplinary matters and the operation of the state personnel system."
And,
By amending the title of the bill to read as follows:
H. B. 4677 - "A Bill to amend and reenact §6-7-2a and §29-6-7 of the Code of West Virginia,
1931, as amended, all relating to the Director of Personnel; clarifying appointment of director; and
authorizing that the hiring requirement is education or experience."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate
amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken, (Roll No. 251), and there were--yeas
87, nays 10, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Duke, Lane, C. Miller, J. Miller, Overington, Schoen, Sobonya, Sumner
and Walters.
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4677) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 252), and there were--yeas 90, nays
7, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Duke, C. Miller, Overington, Schoen, Sobonya, Sumner and Walters.
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4677) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Petitions
Delegate Hamilton presented a petition on behalf of his constituents, requesting the
Legislature to limit the tax funding of abortions; which was referred to the Committee on Finance.
Special Calendar
Unfinished Business
S. C. R. 40, Requesting Division of Highways name bridge in Cabell County, "
Phyllis E.
Given Memorial Bridge";
coming up in regular order, as unfinished business, was reported by the
Clerk.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The following resolutions, coming up in regular order, as unfinished business, were reported
by the Clerk and adopted:
H. C. R. 71, Requesting the Joint Committee on Government and Finance to study
compensating state troopers for off-duty time when required to be on standby to be called back to
work,
H. C. R. 74, Requesting the Joint Committee on Government and Finance to study West
Virginia's response to the problem of substance abuse,
H. C. R. 79, Requesting the Joint Committee on Government and Finance to study the
feasibility of election day registration in and for the State of West Virginia,
H. C. R. 80, Requesting the Joint Committee on Government and Finance to make a study
on promoting a safe and productive learning environment,
H. C. R. 81, Requesting the Joint Committee on Government and Finance to make a study
on providing supplemental state aid for the instruction of english as a second language,
H. C. R. 82, Requesting the Joint Committee on Government and Finance to make a study to improve the efficiency of school level, county board and regional education service agency
accounting practices and procedures,
And,
H. C. R. 83, Requesting that the Joint Committee on Government and Finance authorize a
study of meeting and conference rights for members of certain fire departments.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
S. B. 101, Exempting nonprofit companies providing electricity from property tax; on third
reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
At the request of Delegate DeLong, and by unanimous consent, the amendment by Delegates
D. Poling and DeLong and was withdrawn.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 253),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 101) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 270, Eliminating provisions requiring circuit clerks handle and disburse inmate moneys;
on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 254),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill ( S. B. 270) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 272, Clarifying "telemarketing solicitation" definition; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 255),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill ( S. B. 272) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 493, Granting emergency election powers to Secretary of State; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 256),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 493) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 257), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 493) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 494, Providing voter verification through electronic poll book; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 258),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 494) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 259), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 494) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 495, Requiring certain poll worker training; on third reading, coming
up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 260),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 495) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 261), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 495) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 496, Protecting voter registration information; on third reading, coming
up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 262),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 496) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 263), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 496) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 505, Creating Veterans Cemetery Fund from lottery proceeds; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 264),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 505) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 265), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting and excused being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 505) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 507, Clarifying voting procedures; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 266),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 507) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 507 - "A Bill to amend and reenact §3-1-20, §3-1-22, §3-1-29, §3-1-34
and §3-1-41 of the Code of West Virginia, 1931, as amended, all relating to general provisions and
definitions for elections; requiring cards of instructions to voters to include notice as to effect of
voting provisional ballot and right to request location of correct precinct; requiring posting of cards
of instruction at voting places; requiring board of ballot commissioners to provide election officials
with a list of county precincts and voter registration records; eliminating provisions requiring
election official trainees to be volunteers receiving credits for high school diploma and to be
appointed by county commission or municipality where the election is held; clarifying that
prohibition against using counting board in special elections is discretionary with the county
commission; requiring poll clerk to notify prospective voter of effect of voting provisional ballot and
of correct precinct in which to vote; and updating language relating to signatures to reflect use of
electronic poll books and other electronic devices."
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 267), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 507) take effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 512, Increasing number of Records Management and Preservation Board members; on
third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 268),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 512) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 269), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 512) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 514, Permitting electronic mail absentee voting; on third reading,
coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 270),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 514) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 271), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub for S. B. 514) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 519, Extending Hazardous Waste Material Management Fee Fund
sunset provision on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 272),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 519) passed.
An amendment to the title of the bill, recommended by the Committee on Government
Organization, was reported by the Clerk and adopted, amending the title to read as follows:
The Committee on Government Organization amended the title of the bill to read as follows:
Com. Sub. for S. B. 519 - "A Bill to amend and reenact §22-18-22 of the Code of West
Virginia, 1931, as amended, relating to extending the termination date of the Hazardous Waste
Management Fee Fund to the thirtieth day of June, two thousand ten."
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 273), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 519) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 580, Authorizing magistrate courts to accept unsigned citation
payments; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 274), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 580) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 619, Defining certain external defibrillators' user terms; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 275),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 619) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 654, Finding and declaring certain claims against state; on third reading, coming up in
regular order, was read a third time.
Delegate Kessler requested to be excused from voting on the passage of S. B. 654 under the
provisions of House Rule 49, stating that he was a direct recepient under the provisions of the bill.
Following consultation with the Clerk, the Speaker stated that he had examined the bill and
found Delegate Kessler listed therein and excused the Gentleman from voting on the passage thereof.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 276),
and there were--yeas 96, nays none, excused from voting 1, absent and not voting 3, with the excused
from voting and absent and not voting being as follows:
Excused from Voting: Kessler.
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 654) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 277), and there were--yeas 96, nays
none, excused from voting 1, absent and not voting 3, with the excused from voting and absent and
not voting being as follows:
Excused from Voting: Kessler.
Absent And Not Voting: Frederick, Mahan and Tansill.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 654) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 775, Relating to state parks and state forests; on third reading, coming up in regular
order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 278),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 775) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
Com. Sub. for S. B. 13, Relating to Dental Practice Act generally; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page nine, section six, line twenty, following
the word "practice", by inserting the following words "to be completed and filed as an emergency
rule no later than the first day of July, two thousand eight".
The bill was then ordered to third reading.
Com. Sub. for S. B. 88, Creating brownfield economic development districts; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page three, section six-a, following line twenty-four, by adding a new
subdivision to read as follows:
"'(5) The applicant shall own or control the property within the district.', and relettering the
remaining subdivisions accordingly;".
On page three, section six-a, line twenty-seven, after"(6)" by striking out the word
"Applicants" and inserting in lieu thereof the words "An applicant".
On page four, section six-a, line forty-six, following the words "conjunction with the", by
striking out the words "governing board of" and inserting in lieu thereof the words "Regional
Brownfield Assistance Centers".
On page four, section six-a, line forty-seven, following the words "as specified in", by
inserting the words "section seven" followed by a comma.
On page four, section six-a, line forty-eight, following the word "article", by striking out the
word "three" and inserting in lieu thereof the word "eleven".
And,
On page five, section six-a, line fifty-nine, following the words "first day of", by striking out
the word "July" and inserting in lieu thereof the word "October".
The bill was then read a third time.
S. B. 217, Reducing compliance time for nonresident traffic violations; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §8-10-2a of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §17B-3-3a of said code be amended and reenacted; and that §50-3-2a of said code be amended
and reenacted, all to read as follows:
CHAPTER 8.
MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2a. Payment of fines by credit cards or payment plan; suspension of driver's license for
failure to pay motor vehicle violation fines or to appear in court.
(a) A municipal court may accept credit cards in payment of all costs, fines, forfeitures or
penalties. A municipal court may collect a substantial portion of all costs, fines, forfeitures or
penalties at the time such amount is imposed by the court so long as the court requires the balance
to be paid within one hundred eighty days from the date of judgment and in accordance with a
payment plan which specifies: Provided, That all costs, fines, forfeitures or penalties imposed by the
municipal court upon a nonresident of this state by judgment entered upon a conviction for a motor
vehicle violation defined in section three-a, article three, chapter seventeen-b of this code must be
paid within eighty days from the date of judgment. The payment plan shall specify: (1) The number
of additional payments to be made; (2) the dates on which such payments and amounts shall be
made; and (3) amounts due on such dates.
(b) If costs, fines, forfeitures or penalties imposed by the municipal court for motor vehicle
violations as described defined in section three-a, article three, chapter seventeen-b of this code are
not paid within one hundred eighty days, or if a person who committed any such violation defaults
on a payment plan as described in within the time limits imposed pursuant to subsection (a) of this section, or if a person fails to appear or otherwise respond in court when charged with a motor
vehicle violation as defined in section three-a, article three, chapter seventeen-b of this code, the
municipal court must notify the commissioner of the division of motor vehicles of such failure to pay
or failure to appear.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3a. Suspending license for failure to pay fines or penalties imposed by magistrate
court or municipal court.
(a) The division shall suspend the license of any resident of this state or the privilege of a
nonresident to drive a motor vehicle in this state upon receiving notice from a magistrate court or
municipal court of this state, pursuant to subsection (b), section two-a, article three, chapter fifty or
subsection (b), section two-a, article ten, chapter eight of this code, that such person has defaulted
on the payment of costs, fines, forfeitures or penalties, which were imposed on the person by the
magistrate court or municipal court by judgment entered upon conviction of any motor vehicle
violation or that such person has failed to respond or appear in court when charged with a motor
vehicle violation.
(b) The magistrate court or municipal court shall notify the division upon a default of
payment as follows:
(1) For a resident of this state, after one hundred eighty days following such conviction the
date of judgment upon the conviction; or
(2) For a nonresident of this state, after eighty days following the date of judgment upon the
conviction. or that such person has failed to appear in court when charged with a motor vehicle
violation.
(c) For the purposes of this section, section two-a, article three, chapter fifty and section
two-a, article ten, chapter eight, 'motor vehicle violation' shall be defined as any violation designated
in chapter seventeen-a, seventeen-b, seventeen-c, seventeen-d or seventeen-e of this code, or the violation of any municipal ordinance relating to the operation of a motor vehicle for which the
violation thereof would result in a fine or penalty: Provided, That any parking violation or other
violation for which a citation may be issued to an unattended vehicle shall not be considered a motor
vehicle violation for the purposes of this section, section two-a, article three, chapter fifty or section
two-a, article ten, chapter eight of this code.
CHAPTER 50.
MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment by credit card or payment plan; suspension of licenses for failure to make
payments or appear or respond; restitution; liens.
(a) A magistrate court may accept credit cards in payment of all costs, fines, fees, forfeitures,
restitution or penalties in accordance with rules promulgated by the supreme court of appeals. Any
charges made by the credit company shall be paid by the person responsible for paying the cost, fine,
forfeiture or penalty.
(b) Unless otherwise required by law, a magistrate court may collect a portion of any costs,
fines, fees, forfeitures, restitution or penalties at the time the amount is imposed by the court so long
as the court requires the balance to be paid in accordance with a payment plan which specifies: (1)
The number of payments to be made; (2) the dates on which the payments are due; and (3) the
amounts due for each payment. The written agreement represents the minimum payments and the
last date those payments may be made. The obligor or the obligor's agent may accelerate the
payment schedule at any time by paying any additional portion of any costs, fines, fees, forfeitures,
restitution or penalties.
(c) (1) If any costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate
court in a criminal case are not paid within one hundred eighty days from the date of judgment and
the expiration of any stay of execution, the magistrate court clerk or, upon judgment rendered on
appeal, the circuit clerk shall notify the commissioner of the division of motor vehicles of the failure
to pay: Provided, That in a criminal case in which a nonresident of this state is convicted of a motor vehicle violation defined in section three-a, article three, chapter seventeen-b of this code, the
appropriate clerk shall notify the division of motor vehicles of the failure to pay within eighty days
from the date of judgment and expiration of any stay of execution. Upon notice, the division of
motor vehicles shall suspend any privilege the person defaulting on payment may have to operate
a motor vehicle in this state, including any driver's license issued to the person by the division of
motor vehicles, until all costs, fines, fees, forfeitures, restitution or penalties are paid in full. The
suspension shall be imposed in accordance with the provisions of section six, article three, chapter
seventeen-b of this code: Provided, That any person who has had his or her license to operate a
motor vehicle in this state suspended pursuant to this subsection and his or her failure to pay is based
upon inability to pay may, if he or she is employed on a full or part-time basis, petition to the circuit
court for an order authorizing him or her to operate a motor vehicle solely for employment purposes.
Upon a showing satisfactory to the court of inability to pay, employment and compliance with other
applicable motor vehicle laws, the court shall issue an order granting relief.
(2) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees,
forfeitures, restitution or penalties imposed or ordered by the magistrate court for a hunting violation
described in chapter twenty of this code are not paid within one hundred eighty days from the date
of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a
judgment rendered on appeal, the circuit clerk shall notify the director of the division of natural
resources of the failure to pay. Upon notice, the director of the division of natural resources shall
suspend any privilege the person failing to appear or otherwise respond may have to hunt in this
state, including any hunting license issued to the person by the division of natural resources, until
all the costs, fines, fees, forfeitures, restitution or penalties are paid in full.
(3) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees,
forfeitures, restitution or penalties imposed or ordered by the magistrate court for a fishing violation
described in chapter twenty of this code are not paid within one hundred eighty days from the date
of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the director of the division of natural
resources of the failure to pay. Upon notice, the director of the division of natural resources shall
suspend any privilege the person failing to appear or otherwise respond may have to fish in this state,
including any fishing license issued to the person by the division of natural resources, until all the
costs, fines, fees, forfeitures, restitution or penalties are paid in full.
(d) (1) If a person charged with any criminal violation of this code fails to appear or
otherwise respond in court, the magistrate court shall notify the commissioner of the division of
motor vehicles thereof within fifteen days of the scheduled date to appear unless the person sooner
appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the division
of motor vehicles shall suspend any privilege the person failing to appear or otherwise respond may
have to operate a motor vehicle in this state, including any driver's license issued to the person by
the division of motor vehicles, until final judgment in the case and, if a judgment of guilty, until all
costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full. The suspension shall
be imposed in accordance with the provisions of section six, article three, chapter seventeen-b of this
code.
(2) In addition to the provisions of subdivision (1) of this subsection, if a person charged with
any hunting violation described in chapter twenty of this code fails to appear or otherwise respond
in court, the magistrate court shall notify the director of the division of natural resources of the
failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears
or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the director of the
division of natural resources shall suspend any privilege the person failing to appear or otherwise
respond may have to hunt in this state, including any hunting license issued to the person by the
division of natural resources, until final judgment in the case and, if a judgment of guilty, until all
costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.
(3) In addition to the provisions of subdivision (1) of this subsection, if a person charged with
any fishing violation described in chapter twenty of this code fails to appear or otherwise respond in court, the magistrate court shall notify the director of the division of natural resources of the
failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears
or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the director of the
division of natural resources shall suspend any privilege the person failing to appear or otherwise
respond may have to fish in this state, including any fishing license issued to the person by the
division of natural resources, until final judgment in the case and, if a judgment of guilty, until all
costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.
(e) In every criminal case which involves a misdemeanor violation, a magistrate may order
restitution where appropriate when rendering judgment.
(f) (1) If all costs, fines, fees, forfeitures, restitution or penalties imposed by a magistrate
court and ordered to be paid are not paid within one hundred eighty days from the date of judgment
and the expiration of any stay of execution, the clerk of the magistrate court shall notify the
prosecuting attorney of the county of nonpayment and provide the prosecuting attorney with an
abstract of judgment. The prosecuting attorney shall file the abstract of judgment in the office of the
clerk of the county commission in the county where the defendant was convicted and in any county
wherein the defendant resides or owns property. The clerks of the county commissions shall record
and index the abstracts of judgment without charge or fee to the prosecuting attorney and when so
recorded, the amount stated to be owing in the abstract shall constitute a lien against all property of
the defendant.
(2) When all the costs, fines, fees, forfeitures, restitution or penalties described in subdivision
(1) of this subsection for which an abstract of judgment has been recorded are paid in full, the clerk
of the magistrate court shall notify the prosecuting attorney of the county of payment and provide
the prosecuting attorney with a release of judgment, prepared in accordance with the provisions of
section one, article twelve, chapter thirty-eight of this code, for filing and recordation pursuant to the
provisions of this subdivision. Upon receipt from the clerk, the prosecuting attorney shall file the
release of judgment in the office of the clerk of the county commission in each county where an abstract of the judgment was recorded. The clerks of the county commissions shall record and index
the release of judgment without charge or fee to the prosecuting attorney."
The bill was then ordered to third reading.
Com. Sub. for S. B. 234, Creating Maternal Mortality Review Team; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page two, section two, line two, following
the word "the", by striking out the words "office of the Chief Medical Examiner" and inserting in
lieu thereof the words "Office of Maternal Child and Family Health".
On page three, section two, line nine, following the word "The", by striking out the words
"Chief medical Examiner" and inserting in lieu thereof the words "Director of the Office of Maternal
Child and Family Health".
On page three, section two, line fourteen, following the word "The", by striking out the words
"Director of the Office of Maternal Child and Family Health Program" and inserting in lieu thereof
the words "Chief Medical Examiner".
On page three, section two, line twenty-five, following the word "the", by inserting the words
"West Virginia".
On page three, section two, line twenty-seven, following the word "the", by striking out the
word "State" and inserting in lieu thereof the words "West Virginia".
On page four, section two, line twenty-eight, following the word "the", by striking out the
words "State Osteopathic Association", by inserting in lieu thereof the words "West Virginia Society
of Osteopathic Medicine".
On page four, section two, line thirty, following the word "of", by striking out the words
"private practice physicians" and inserting in lieu thereof the words "West Virginia Academy of
Family Physicians".
On page four, section two, line thirty-two following the word "the", by striking out the word "State" and inserting in lieu thereof the word "American".
On page four, section two, line thirty-two, following the word "Nurse", by striking out the
word "Midwifery" and inserting in lieu thereof the word "Midwives".
On page six, section three, line one, following the designation "(a)", by inserting the
following "The Bureau of Public Health in consultation with".
On page six, section three, line one, following the designation "(a)", by striking out the word
"The" and inserting in lieu thereof the word "the".
And,
On page six, section three, line two, following the word "of", by inserting the words "article
three" followed by a comma.
The bill was then ordered to third reading.
S. B. 236, Eliminating obsolete election language; on second reading, coming up in regular
order, was read a second time and ordered to third reading.
S. B. 237, Repealing county officers' annual report requirement of certain expenditures; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 238, Increasing monetary limit to file circuit court suit; on second reading, coming up
in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §50-4-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
and that §51-2-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-8. Removal to circuit court.
At any time before trial in a civil action involving less than three hundred two thousand five hundred dollars the action may be removed to circuit court upon the concurrence of all parties and
upon the payment of the circuit court filing fee. At any time before trial in a civil action involving
three hundred two thousand five hundred dollars or more, any party may, upon payment of the circuit
court filing fee, cause such action to be removed to the circuit court. All appropriate documents shall
then be forwarded along with such fee to the clerk of the circuit court. The matter shall then be
heard by the circuit court.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-2. Jurisdiction.
(a) The circuit court shall have supervision and control of all proceedings before magistrates,
by mandamus, prohibition and certiorari. They shall except
(b) Except in cases confined exclusively by the constitution to some other tribunal, the circuit
court shall have original and general jurisdiction of all matters at law where the amount in
controversy, exclusive of excluding interest, exceeds three hundred two thousand five hundred
dollars: Provided, That the jurisdictional limit on amounts in controversy does not apply to real
estate installment sales contracts. of all cases of habeas corpus, mandamus, quo warranto and
prohibition; of all cases in equity, including jurisdiction in equity to remove any cloud on the title
to real property, or any part thereof, or any estate, right or interest therein, and to determine questions
of title with respect thereto, without requiring allegations or proof of actual possession of the same;
and of all crimes and misdemeanors.
(c) The circuit court shall have original and general jurisdiction in all of the following
matters:
(1) Habeas corpus;
(2) Mandamus;
(3) Quo warranto;
(4) Prohibition;
(5) Crimes; and
(6) Misdemeanors.
(d) The circuit court shall have original and general jurisdiction in all cases in equity,
including jurisdiction in equity to remove any cloud on the title to real property, or any part of a
cloud, or any estate, right or interest in the real property, and to determine questions of title with
respect to the real property without requiring allegations or proof of actual possession of the real
property.
(e) The circuit court They shall have appellate jurisdiction in all cases, civil and criminal,
where an appeal, writ of error or supersedeas may be allowed to the judgment or proceedings of any
inferior tribunal.
(f) The circuit court They shall also have such shall also have any other jurisdiction, whether
supervisory, original, appellate or concurrent, as is or may be prescribed by law."
The bill was then ordered to third reading.
Com. Sub. for S. B. 242, Allowing point deduction for certain licensees attending defensive
driving class; on second reading, coming up in regular order, was read a second time and ordered
to third reading.
At 12:02 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 1:30
p.m., and reconvened at that time.
* * * * * * * *
Afternoon Session
* * * * * * * *
Special Calendar
Second Reading
(Continued)
S. B. 263, Updating certain code provisions relating to Division of Corrections; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page five, section three, lines forty-six through fifty-one, by
reinserting the following:
On page fourteen, section four, line two following the word "the", by reinserting the words
"minimum qualification of a college degree with a major in criminal justice or a related field".
And,
On page fourteen, section four, line four, by striking out the words "same qualifications," and
inserting in lieu thereof, the words "and the ".
The bill was then ordered to third reading.
S. B. 271, Establishing grievance procedure for State Police; on second reading, coming up
in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 286, Providing adult and child protective services workers personal
immunity from civil liability ; on second reading, coming up in regular order, was read a second
time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page five, section two, line fifty-eight, following the word
"liability", by inserting the words "arising from the operation of a motor vehicle or".
And,
On page twelve, section nine, line one hundred twenty-one, following the word "liability",
by inserting the words "arising from the operation of a motor vehicle or".
The bill was then ordered to third reading.
Com. Sub. for S. B. 292, Allowing Commissioner of Banking issue bond claims to collect
certain unpaid penalties and invoices; on second reading, coming up in regular order, was read a
second time and ordered to third reading.
Com. Sub. for S. B. 305, Clarifying procedures for seizing neglected or abused animals; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 311, Allowing judges to order jurors from other counties in certain
situations; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
S. B. 317, Updating physician and podiatrist licensing requirements; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page thirteen, section ten, line two hundred
thirty-three, following the word "person", by inserting the words "not previously licensed in West
Virginia".
The bill was then ordered to third reading.
Com. Sub. for S. B. 325, Relating to state employee deferred compensation plan ; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, section ten-a, line fifteen, following the word "dollars", by
striking out "every pay period for twelve monthly pay periods or twenty-four semimonthly pay
periods" and inserting in lieu thereof the words "every pay period".
And,
On page three, section ten-a, line twenty-three, following the word "account", by striking out
"for twelve monthly pay periods or twenty-four semimonthly pay periods".
The bill was then ordered to third reading.
S. B. 337, Eliminating obsolete language concerning Supreme Court Clerk; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 340, Requiring consumers' notification of information security breach;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 373, Authorizing Miscellaneous Boards and Agencies promulgate
legislative rules; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk,
following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof
the following:
"ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENT TO
PROMULGATE LEGISLATIVE RULES.
§64-3-1. Department of Environmental Protection.
(a) The legislative rule filed in the State Register on the twenty-fifth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (emission standards for hazardous
air pollutants 45 CSR 34), is authorized.
(b) The legislative rule filed in the State Register on the nineteenth day of December, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (ambient air quality standard for
nitrogen dioxide, 45 CSR 12), is repealed.
(c) The legislative rule filed in the State Register on the nineteenth day of December, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (emission standards for hazardous
air pollutants pursuant to 40 CFR part 61, 45 CSR 15), is repealed.
(d) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (standards of performance for new
stationary sources 45 CSR 16), is authorized.
(e) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (control of air pollution from
combustion of solid waste, 45 CSR 18), is authorized.
(f) The legislative rule filed in the State Register on the nineteenth day of December, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (to prevent and control emissions
from hospital/medical/infectious waste incinerators, 45 CSR 24), is repealed.
(g) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (control of air pollution from
hazardous waste treatment, storage and disposal facilities, 45 CSR 25), is authorized.
(h) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (control of annual nitrogen oxides
emissions, 45 CSR 39), is authorized.
(i) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, modified by the Department of Environmental Protection to meet the objections of the
Legislative Rule-making Review Committee and refiled in the State Register on the fourteenth day
of January, two thousand eight, relating to the Department of Environmental Protection (control of
ozone season nitrogen oxides emissions, 45 CSR 40), is authorized.
(j) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (control of annual sulfur dioxide
emissions, 45 CSR 41), is authorized.
(k) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section nineteen, article five, chapter twenty-two
of this code, modified by the Department of Environmental Protection to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on the fourteenth day of January, two thousand eight, relating to the Department of Environmental Protection (greenhouse
gas emissions inventory program, 45 CSR 42), is authorized.
(l) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (control of air pollution from
combustion of refuse, 45 CSR 6), is authorized.
(m) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, modified by the Department of Environmental Protection to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on the fourteenth day
of January, two thousand eight, relating to the Department of Environmental Protection (ambient air
quality standards, 45 CSR 8), is authorized.
(n) The legislative rule filed in the State Register on the nineteenth day of December, two
thousand seven, authorized under the authority of section four, article five, chapter twenty-two of
this code, relating to the Department of Environmental Protection (ambient air quality standards for
carbon monoxide and ozone, 45 CSR 9), is repealed.
(o) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article three-a, chapter twenty-two
of this code, modified by the Department of Environmental Protection 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 seven, relating to the Department of Environmental Protection (surface
mining blasting, 199 CSR 1), is authorized, with the following amendments:
On page nine, section 3, after "3.8.a.", by inserting the following: At least thirty days prior
to commencing blasting, an operator's designee shall notify in writing all owners and occupants of
man-made dwellings or structures that the operator or operator's designee will perform preblast
surveys.
(p) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article three, chapter twenty-two of
this code, modified by the Department of Environmental Protection 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 seven, relating to the Department of Environmental Protection (surface
mining reclamation, 38 CSR 2), is authorized, with the following amendments:
On pages one hundred twenty-six through one hundred thirty-two, by striking out subsection
11.8. in its entirety.
(q) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section three, article twenty-two, chapter twenty-
two of this code, relating to the Department of Environmental Protection (voluntary remediation and
development, 60 CSR 3), is authorized.
(r) The legislative rule filed in the State Register on the twenty-seventh day of July, two
thousand seven, authorized under the authority of section four, article twenty-five, chapter twenty-
two of this code, relating to the Department of Environmental Protection (environmental excellence
program, 60 CSR 8), is authorized.
(s) The legislative rule filed in the State Register on the twenty-fourth day of July, two
thousand seven, authorized under the authority of section twenty-three, article fifteen, chapter
twenty-two of this code, modified by the Department of Environmental Protection to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the State Register on
the twentieth day of December, two thousand seven, relating to the Department of Environmental
Protection (standards for beneficial use of filtrate from water treatment plants, 33 CSR 9), is
authorized.
(t) The legislative rule filed in the State Register on the twenty-seventh day of July, two
thousand seven, authorized under the authority of section three, article fifteen-a, chapter twenty-two
of this code, modified by the Department of Environmental Protection to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day
of October, two thousand seven, relating to the Department of Environmental Protection (recycling
assistance grant program, 33 CSR 10), is authorized, with the following amendments:
On page twelve, subdivision 5.1.10., after the words "telephone costs." by striking out the
remainder of the subdivision and by inserting in lieu thereof the following: "Rent or lease charges
related to a recycling program for a building, or office space are allowable expenditures. However,
to obtain grant funds for rent or lease charges, the applicant shall provide the department with a copy
of the written rental or lease agreement which shall exceed twenty years and meet the following
criteria:
a. The rental or lease agreement shall not contain any cancellation or termination clause,
b. The rental or lease agreement shall not be transferrable, and
c. The rental or lease agreement shall not allow for subleasing;"
On page twelve, by striking out all of subdivision 5.1.11. and inserting in lieu thereof the
following, to read as follows:
"5.1.11 Recycling Facility Construction, Improvement and Repairs -- A grant may be used
for, but not limited to, new construction or repairs or minor improvements to an existing recycling
facility, such as loading docks, sheds, structures, abutment walls, fences, roof repair, gravel or
paving, if the land is owned or leased by the grantee. However, to obtain grant funds for
construction, improvements and repairs for rental or leased property, the applicant shall provide the
department a copy of the written rental or lease agreement which shall exceed twenty years and meet
the criteria stated in subdivision 5.1.10. of this rule;"
On page thirteen, subdivision 5.2.2., by striking out the words "and buildings";
And,
On page thirteen, subdivision 5.2.7 after the words "(planting, mowing, weeding, etc.)", by
inserting the words "unless the purpose is to provide natural screening to neighboring properties".
(u) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section six, article eighteen, chapter twenty-two
of this code, relating to the Department of Environmental Protection (hazardous waste management
system, 33 CSR 20), is authorized.
(v) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section six, article seventeen, chapter twenty-two
of this code, modified by the Department of Environmental Protection to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day
of December, two thousand seven, relating to the Department of Environmental Protection
(underground storage tanks, 33 CSR 30), is authorized.
(w) The legislative rule filed in the State Register on the twenty-seventh day of July, two
thousand seven, authorized under the authority of section four, article eleven, chapter twenty-two
of this code, relating to the Department of Environmental Protection (National Pollutant Discharge
Elimination System (NPDES) program, 47 CSR 10), is authorized.
(x) The legislative rule filed in the State Register on the twenty-sixth day of July, two
thousand seven, authorized under the authority of section four, article eleven, chapter twenty-two
of this code, modified by the Department of Environmental Protection 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 seven, relating to the Department of Environmental Protection
(WV/NPDES rules for coal mining facilities, 47 CSR 30), is authorized with the following
amendments:
On page one, subsection 1.8., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page two, subsection 2.6., by striking out the word "Secretary's" and inserting in lieu
thereof the word "Director's";
On page two, subsection 2.6., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page three, after subsection 2.14. by inserting a new subsection 2.15., to read as follows:
2.15. "Director" means the director of the Division of Water and Waste Management.;
And renumbering the remaining subsections;
On page three, subsection 2.17., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page three, subsection 2.18., by striking out the word "Secretary's" and inserting in lieu
thereof the word "Director's";
On page four, subsection 2.28., after the words "by the", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page four, subsection 2.28., after the words "with the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page four, subdivision 2.31.a., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page five, subsection 2.37., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page six, subsection 2.50., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page six, subsection 2.51., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page six, subparagraph 3.1.a.6.D, by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page seven, subparagraph 3.1.a.6.G, after the word "The" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page seven, subparagraph 3.1.a.6.G, after the words "when the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page seven, subdivision 3.2.a., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page eight, subdivision 3.5.a., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page eight, subdivision 3.5.b., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page eight, paragraph 3.5.b.1., after the words "to the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page eight, paragraph 3.5.b.1., after the words "application the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page eight, paragraph 3.5.b.1., after the words "if the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page eight, paragraph 3.5.b.2., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page eight, paragraph 3.5.c.1., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page eight, paragraph 3.5.d.1., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page eight, paragraph 3.5.d.3., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page nine, subsection 3.6., by striking out the word "Secretary" and inserting in lieu
thereof the words "Director of the Division of Water and Waste Management";
On page nine, subdivision 3.6.a., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page nine, subdivision 3.6.b., after the words "adopted by the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page nine, subdivision 3.6.b., after the words "enforced by the" by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page nine, subdivision 3.6.c., after the word "The" by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page nine, subdivision 3.6.c., after the words "by the" by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page nine, subdivision 3.6.d., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page nine, subsection 4.1., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page nine, subsection 4.2., after the word "The", by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page nine, subsection 4.2., after the words "or the", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page nine, subsection 4.3., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page ten, subsection 4.3., after the words "when the", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page ten, subsection 4.3., after the words "to the", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page ten, subsection 4.3., after the word "The", by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page ten, subdivision 4.5.a., after the words "provide the", by striking out the word
Secretary" and inserting in lieu thereof the word "Director";
On page ten, subdivision 4.5.a., after the words "by the", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page twelve, paragraph 4.5.a.17., after the word "The", by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page twelve, paragraph 4.5.a.17., after the words "and the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page twelve, subdivision 4.5.b., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page twelve, paragraph 4.5.b.1., after the words "addition, the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page twelve, paragraph 4.5.b.1., after the words "effluents, the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page twelve, part 4.5.b.1.A.2., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page fourteen, paragraph 4.5.c.1., after the words "to the", by striking out the comma and
the word "Secretary" and inserting in lieu thereof the word "Director";
On page fourteen, paragraph 4.5.c.1., after the words "as the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page fourteen, paragraph 4.5.d.1., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page fifteen, subparagraph 4.5.d.1.F., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page fifteen, paragraph 4.5.d.3., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page sixteen, paragraph 4.5.e.3., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page sixteen, subparagraph 4.5.f.2.A., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page seventeen, paragraph 4.5.g.1., after the words "rule, the", by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page seventeen, paragraph 4.5.g.1., after the words "notice, the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page seventeen, paragraph 4.5.g.2., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page seventeen, subdivision 4.7.b., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page eighteen, paragraph 4.7.b.3., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page eighteen, subdivision 4.7.c., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page nineteen, subdivision 5.1.g., by striking out the word "secretary" and inserting in
lieu thereof the words "Secretary or Director";
On page nineteen, subsection 5.7., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page nineteen, subsection 5.9., after the words "shall furnish to the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page nineteen, subsection 5.9., after the words "which the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page nineteen, subsection 5.9., after the words "shall also furnish to the", by striking out
the word "Secretary" and inserting in lieu thereof the word "Director";
On page nineteen, subsection 5.10., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page twenty, subdivision 5.11.c., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page twenty, paragraph 5.11.d.7., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page twenty, subdivision 5.11.g., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page twenty, subsection 5.12., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page twenty-one, subdivision 5.13.a., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-one, subdivision 5.13.b., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-one, subparagraph 5.13.d.2.B., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page twenty-one, subparagraph 5.13.d.2.C., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page twenty-one, paragraph 5.13.d.3., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-one, paragraph 5.13.d.4., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-two, part 5.13.d.4.A.4., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-two, part 5.13.d.4.B.4., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-two, subdivision 5.13.f., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-two, subdivision 5.13.g., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-three, paragraph 5.14.d.1., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page twenty-three, subdivision 5.14.e., after the word "The", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page twenty-three, subdivision 5.14.e., after the words "if the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page twenty-three, subsection 5.16., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-five, subsection 6.1., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page twenty-five, subdivision 6.1.a., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-five, subdivision 6.2.b., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-five, paragraph 6.2.d.2., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-six, paragraph 6.2.d.3., after the words "Subpart G, the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page twenty-six, subparagraph 6.2.h.1.A., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page twenty-six, subparagraph 6.2.h.2.B., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page twenty-six, subdivision 6.2.i., by striking out the word "Secretary's" and inserting
in lieu thereof the word "Director's";
On page twenty-eight, paragraph 6.2.o.5., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page twenty-nine, subdivision 7.7.d., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty, subdivision 7.9.a., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page thirty, subdivision 8.1.a., by striking out the word "Secretary's" and inserting in lieu
thereof the word "Director's";
On page thirty, subdivision 8.1.a., after the words "to the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty, subdivision 8.1.a., after the word "The", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page thirty, subdivision 8.1.b., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page thirty, subdivision 8.2.a., after the words "to the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty, subdivision 8.2.a., after the word "The", by striking out the word "Secretary"
and inserting in lieu thereof the word "Director";
On page thirty-one, subdivision 8.2.b., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-one, paragraph 8.2.c.1., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-one, subparagraph 8.2.c.1.D., after the words "where the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-one, subparagraph 8.2.c.1.D., after the words "by the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-one, subparagraph 8.2.c.1.D., after the words "to the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-two, subparagraph 8.2.c.2.B., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-two, subparagraph 8.2.c.2.D., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page thirty-three, subparagraph 8.2.c.2.L., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page thirty-three, paragraph 8.3.a.1., after the word "The", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-three, paragraph 8.3.a.1., after the words "and the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-three, paragraph 8.3.c.1., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-four, subdivision 9.1.a., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-four, subdivision 9.2.a., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-four, paragraph 9.2.a.2., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-four, subdivision 9.2.b., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-five, subdivision 10.1.a., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-five, subdivision 10.1.b., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-five, subdivision 10.2.b., after the word "the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-five, subdivision 10.2.b., after the word "The", by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-five, subdivision 10.2.c., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-six, subparagraph 10.2.d.1.B., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page thirty-six, paragraph 10.2.d.2, by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page thirty-seven, subparagraph 10.2.e.1.G., by striking out the word "Secretary" and
inserting in lieu thereof the word "Director";
On page thirty-seven, subdivision 10.3.a., after the word "the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-seven, subdivision 10.3.a., after the word "The", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-seven, subdivision 10.4.a., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-seven, subdivision 10.5.a., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-eight, subdivision 10.5.a., after the words "advises the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-eight, subdivision 10.5.a., after the words "then the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page thirty-eight, subdivision 10.5.b., after the words "advises the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-eight, subdivision 10.5.b., after the words "resources, the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-eight, subdivision 10.5.c., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page thirty-eight, subdivision 11.1.d., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page thirty-eight, subdivision 11.1.e., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page forty, paragraph 12.3.a.3., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page forty-one, subsection 13.1., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page forty-one, paragraph 13.1.b.5. by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page forty-one, subdivision 13.1.c., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page forty-one, subdivision 13.2.b., after the word "The", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page forty-one, subdivision 13.2.b., after the word "the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page forty-two, subsection 14.1., by striking out the word "Secretary" and inserting in lieu
thereof the word "Director";
On page forty-two, subdivision 14.1.a., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page forty-two, subdivision 14.1.b., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page forty-two, subdivision 14.1.c., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page forty-two, subdivision 14.2.a., by striking out the word "Secretary" and inserting in lieu thereof the word "Director";
On page forty-two, subdivision 14.2.b., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director";
On page forty-two, subdivision 14.2.c., after the words "by the", by striking out the word
"Secretary" and inserting in lieu thereof the word "Director";
On page forty-two, subdivision 14.2.c., after the words "variance, the", by striking out the
word "Secretary" and inserting in lieu thereof the word "Director";
On page forty-two, subdivision 15.1.a., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
On page forty-three, subsection 15.2., by striking out the word "Secretary" and inserting in
lieu thereof the word "Director";
And,
On page forty-three, subdivision 15.2.c., by striking out the word "Secretary" and inserting
in lieu thereof the word "Director".
(y) The legislative rule filed in the State Register on the twenty-seventh day of July, two
thousand seven, authorized under the authority of section seven-b, article eleven, chapter twenty-two
of this code, relating to the Department of Environmental Protection (requirements governing water
quality standards, 47 CSR 2), is authorized, with the following amendments:
On page two, by striking out subsection 2.20. "Waters of special concern" in its entirety and
renumbering the remaining subsections;
On page four, by striking out subdivision 4.1.c. in its entirety and renumbering the remaining
subdivisions;
And,
On page four, newly designated 4.1.c. after the word "State", by changing the period to a
comma and adding the following: all Federally designated rivers under the "Wild and Scenic Rivers
Act", 16 U.S.C. §1271 et seq.; all streams and other bodies of water in state parks and forests; waters in national parks and forests and waters designated under the "National Parks and Recreation Act
of 1978", as amended; and pursuant to subsection 7.1. of 60CSR5; those waters whose unique
character, ecological or recreational value, or pristine nature constitutes a valuable national or state
resource.;
And,
On pages sixteen through twenty-six by striking Appendix A and inserting in lieu thereof the
following:
APPENDIX A
CATEGORY B-2 - TROUT WATERS
This list contains known trout waters and is not intended to exclude any waters which meet the definition in Section
2.20. 2.19.
River BasinCountyStream
James River
JMonroeSouth Fork Potts Creek
Potomac River
PJeffersonTown Run
P"Rocky Marsh Run
PBerkeleyOpequon Creek
P"Tuscarora Creek
(Above Martinsburg)
P"Middle Creek
(Above Route 30 Bridge)
P"Mill Creek
P"Hartland Run
P"Mill Run
P"Tillance Creek
PMorganMeadow Branch
PSJeffersonFlowing Springs Run
(Above Halltown)
PS"Cattail Run
PS"Evitt's Run
PS"Big Bullskin Run
PS"Long Marsh Run
PCHampshireCold Stream
PC"Edwards Run and Impoundment
PC"Dillons Run
PCHardyLost River
PC"Camp Branch
PC"Lower Cove Run
PC"Moores Run
PC"North River (Above Rio)
PC"Waites Run
PC"Trout Run
PC"Trout Pond (Impoundment)
PC"Warden Lake (Impoundment)
PC"Rock Cliff Lake (Impoundment)
River BasinCountyStream
PSBHampshireMill Creek
PSB"Mill Run
PSBHardyDumpling Creek
PSBGrant-PendletonNorth Fork South Branch
PSBGrantNorth Fork Lunice Creek
PSB"South Fork Lunice Creek
PSB"South Mill Creek (Above Hiser)
PSB"Spring Run
PSBPendletonHawes Run (Impoundment)
PSB"Little Fork
PSB "South Branch (Above North Fork)
PSB"Senena Creek
PSB"Laurel Fork
PSB"Big Run
Potomac River
PNBMineralNorth Fork Patterson Creek
PNB"Fort Ashby (Impoundment)
PNB"New Creek
PNB"New Creek Dam 14 (Impoundment)
PNB"Mill Creek (Above Markwood)
Monongahela River
MMonongalia-MarionWhiteday Creek
(Above Smithtown)
MCMonongaliaMorgan Run
MC"Coopers Rock (Impoundment)
MC"Blaney Hollow
MCPrestonLaurel Run
MC"Elsey Run
MC"Saltlick Creek
MC"Buffalo Creek
MC"Wolf Creek
MCTuckerClover Run
MC"Elklick Run
MC"Horseshoe Run
MC"Maxwell Run
MC"Red Creek
MC"Slip Hill Mill Branch
MC"Thomas Park (Impoundment)
MC"Blackwater River (Above Davis)
MC"Blackwater River (Below Davis)
MCRandolphCamp Five Run
MC"Dry Fork (Above Otter Creek)
MC"Glady Fork
MC"Laurel Fork
MC"Gandy Creek (Above Whitmer)
MC"East Fork Glady Fork (Above C
& P Compressor Station)
River BasinCountyStream
MCRandolphShavers Fork
(Above Little Black Fork)
MC"Three Spring Run
MC"Spruce Knob Lake (Impoundment)
MWHarrisonDog Run (Pond)
MWLewisStonecoal
MTBarbourBrushy Fork
(Above Valley Furnace)
MT"Teter Creek Lake (Impoundment)
MT"Mill Run
MTTaylor-BarbourTygart Lake Tailwaters
(Above Route 119 Bridge)
MTPrestonRoaring Creek
(Above Little Lick Branch)
MTRandolphTygart River (Above Huttonsville)
MT"Elkwater Fork
MT"Big Run
MTBUpshur-Randolph-LewisRight Fork Buckhannon River
MTBUpshurBuckhannon River
(Above Beans Mill)
MTBUpshurFrench Creek
Monongahela River
MTBUpshur-RandolphLeft Fork Right Fork
MTNUpshurRight Fork Middle Fork River
MTMRandolphMiddle Fork River (Above Cassity)
MYPrestonRhine Creek
Little Kanawha River
LKUpshurLeft Fork-Right Fork Little
Kanawha River)
LKUpshur-LewisLittle Kanawha River
(Above Wildcat)
Kanawha River
KEBraxtonSutton Reservoir
KE"Sutton Lake Tailwaters
(Above Route 38/5 Bridge)
KEWebsterBack Fork
KE"Desert Fork
KE"Fall Run
KE"Laurel Fork
River BasinCountyStream
KE"Left Fork Holly River
KE"Sugar Creek
KE"Elk River (Above Webster Springs)
KCRaleighStephens Lake (Impoundment)
KC"Marsh Fork (Above Sundial)
KGNicholasSummersville Reservoir
(Impoundment)
KG"Summersville Tailwaters
(Above Collison Creek)
KGNicholasDeer Creek
KGRandolph-WebsterGauley River
(Above Moust Coal Tipple)
KGFayetteGlade Creek
KGNicholasHominy Creek
KG"Anglins Creek
KGGreenbrier Big Clear Creek
KG"Little Clear Creek and Laurel Run
KG"Meadow Creek
KGFayetteWolf Creek
KGNicholasCherry River
KGGreenbrier-NicholasLaurel Creek
KG""North Fork Cherry River
KGGreenbrierSummit Lake (Impoundment)
KGGreenbrier-NicholasSouth Fork Cherry River
Kanawha River
KGCPocahontas-Webster-Cranberry River
Nicholas
KGCPocahontasSouth Fork Cranberry River
KGWPocahontasTea Creek
KGWPocahontas-WebsterWilliams River (Above Dyer)
KNRaleighGlade Creek
KNSummersMeadow Creek
KNFayetteMill Creek
KN"Laurel Creek (Above Cotton Hill)
KNRaleighPinch Creek
KNMonroeRich Creek
KN"Turkey Creek
KNFayetteDunloup Creek (Downstream from
Harvey Sewage Treatment Plant)
KNMercerEast River (Above Kelleysville)
KN"Pigeon Creek
KNMonroeLaurel Creek
KNGMonroeKitchen Creek (Above Gap Mills)
KNGGreenbrierCulverson Creek
KNG"Milligan Creek
River BasinCountyStream
KNGGreenbrier-MonroeSecond Creek
(Rt. 219 Bridge to Nickell's Mill)
KNGGreenbrierNorth Fork Anthony Creek
KNG"Spring Creek
KNG"Anthony Creek (Above Big Draft)
KNGPocahontasWatoga Lake
KNG"Beaver Creek
KNG"Knapp's Creek
KNG"Hills Creek
KNG"North Fork Deer Creek
(Above Route 28/5)
KNG"Deer Creek
KNG"Sitlington Creek
KNG"Stoney Creek
KNG"Swago Creek
KNG"Buffalo Fork (Impoundment)
KNG"Seneca (Impoundment)
KNG"Greenbrier River
(Above Hosterman)
KNG"West Fork-Greenbrier River
(Above the impoundment
at the tannery)
KNG"Little River-East Fork
KNG"Little River-West Fork
KNG"Five Mile Run
KNG"Mullenax Run
KNG"Abes Run
KNBMercerMarsh Fork
KNB"Camp Creek
OGWyomingPinnacle creek
BSTMcDowellDry Fork (Above Canebrake)
(z) The legislative rule filed in the State Register on the twenty-seventh day of July, two
thousand seven, authorized under the authority of section seven-b, article eleven, chapter twenty-two
of this code, relating to the Department of Environmental antidegradation implementation
procedures, 60 CSR 5), is authorized with the amendment set forth below:
On page two, subsection 3.2. by striking out the words "Tier 2.5 or";
On page three, by striking out subdivision 3.5.a. in its entirety and by renumbering the
remaining subdivisions;
On page three, new subdivision 3.5.a., after the words "Wilderness Area", by inserting the
words "or otherwise included in 47CSR2-4.1.c.";
On page three, new subdivision 3.5.b., after the words "Wilderness Area", by striking out the
words "not listed pursuant to subsection 8.2. and not listed in Appendix A of this rule" and inserting
in lieu thereof, the words "or otherwise included in 47CSR2-4.1.c. or listed pursuant to subsection
7.1. of this rule";
On page three, new subdivision 3.5.d. by striking out the words "Tier 2.5 or";
On page three, subsection 3.7. by striking out the words "Tier 2.5 or";
On page four, subsection 3.8., by striking out the words "Tier 2.5 or";
On pages nine through eleven, by striking out section six in its entirety and renumbering the
remaining sections;
On page eleven, subsection 7.2., by striking out "47CSR2-4.1.d." and inserting in lieu thereof
the words "47CSR2-4.1.c.";
On page thirteen, by striking out the section caption and inserting in lieu thereof a new
section caption to read as follows:
§60-5-7. Designation of Tier 3 Waters.;
On pages thirteen and fourteen, by striking out section 8.1. in its entirety and renumbering
the remaining subsection;
On page fourteen, new subsection 7.2.a.1., following the words "nominated segment." by
striking out the word "Where" and inserting in lieu thereof, the following: When a good faith effort
to notify individual property owners has failed, and".
On page fifteen, subsection 9.3. by striking out the words "2.5,";
On page fifteen, subsection 9.6, after the word "Board", by striking out the colon and the
remainder of the subsection;
On pages sixteen through twenty-one by striking out Appendix A in its entirety;
And,
On page twenty-two by striking out the caption and inserting in lieu thereof the caption
"APPENDIX A".
§64-3-2. Solid Waste Management Board.
The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand
seven, authorized under the authority of section nine-a, article four, chapter twenty-two-c of this
code, modified by the Solid Waste Management Board to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on the fifth day of December, two
thousand seven, relating to the Solid Waste Management Board (performance measures and review
standards for solid waste authorities operating commercial solid waste facilities, 54 CSR 6), is
authorized."
On motion of Delegates Webster and Brown, the Committee amendment was amended on
page twenty-four, section one, by striking out all of lines nine through seventeen and inserting in lieu
thereof, the following:
"On page four, newly designated 4.1.c. after the word 'State', by changing the period to a
comma and adding the following: all Federally designated rivers under the 'Wild and Scenic Rivers
Act', 16 U.S.C. §1271 et seq.; all streams and other bodies of water in state parks which are high
quality waters or naturally reproducing trout streams; waters in national parks and forests which are
high quality waters or naturally reproducing trout streams; waters designated under the 'National
Parks and Recreation Act of 1978', as amended; and pursuant to subsection 7.1. of 60CSR5, those
waters whose unique character, ecological or recreational value, or pristine nature constitutes a
valuable national or state resource."
Delegate Hartman moved to amend the Committee amendment on page twenty-four, section
one, by striking out all of lines nine through seventeen in their entirety.
On the adoption of the amendment to the Committee amendment, Delegate Hartman
demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 279), and there were--yeas
32, nays 65, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael,
Cowles, Duke, Ellem, Evans, Hartman, Ireland, Lane, Michael, C. Miller, J. Miller, Overington,
Porter, Reynolds, Romine, Rowan, Schadler, Schoen, Shaver, Sobonya, Stalnaker, Sumner, Walters
and Williams.
Absent And Not Voting: Frederick, Mahan and Tansill.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the Committee amendment was not adopted.
The amendment by the Committee on the Judiciary, as amended, was then adopted.
The bill was then ordered to third reading.
Com. Sub. for S. B. 398, Authorizing Department of Health and Human Resources
promulgate legislative rules; on second reading, coming up in regular order, was read a second time
and ordered to third reading.
Com. Sub. for S. B. 481, Authorizing physician assistants to conduct mental health hygiene
process examinations; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on page five, section two, line sixty-seven,
following the word worker, by adding a comma and the words "physician assistant".
The bill was then ordered to third reading.
Com. Sub. for S. B. 492, Eliminating part-time prosecutors; on second reading, coming up
in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-4a. Authorizing the option of full-time status for part-time prosecuting attorneys.
(a) Notwithstanding the provisions of section four of this article to the contrary, on or before
the first day of January, two thousand nine, a county may not have a part-time prosecutor. The
county commissions of counties in Class VI through X shall then compensate all prosecuting
attorneys that have changed to full-time by virtue of this section at the same rate of compensation
established for a prosecuting attorney in a Class V county: Provided, That, upon mutual agreement
of the prosecuting attorney and the county commission, the prosecuting attorney may choose to
remain a part-time prosecuting attorney.
(b) If, after the first day of January, two thousand nine, during the course of a term of office,
pursuant to subsection (a) of this section, any prosecutor who becomes full-time or chooses to remain
part-time who believes that the responsibilities of his or her office either no longer requires a full-
time position or believes that the duties of the part-time position have become full-time, may, by
mutual agreement with the county commission, either return to part-time status or change to full-time
status: Provided, That, if the decision to change to full-time or part-time status is made during an election year, the decision must be by mutual agreement between the county commission and the
prosecutor-elect: Provided, however, That any prosecutor who returns to part-time status shall,
thereafter, be compensated at the rate of compensation set forth in section four of this article for a
prosecuting attorney of his or her class county and any prosecutor that changes to full-time status
shall, thereafter, be compensated at the same rate of compensation established for a prosecuting
attorney in a Class V county.
(c) If, after the first day of January, two thousand nine, any prosecutor or prosecutor elect
desires to change to full-time status and the county commission objects to such change due to an
alleged financial condition of the county, then either party may request the state auditor's office to
examine the county's financial condition and certify whether or not there are sufficient funds to
support a full-time position. The state auditor shall then, within ninety days of such request, certify
whether or not there are sufficient funds available to support a full-time prosecutor in the county.
If the state auditor certifies that there are sufficient funds available, then the prosecutor or prosecutor
elect must be changed to full-time status and be compensated at the same rate of pay as a prosecutor
in a Class V county."
The bill was then ordered to third reading.
S. B. 503, Requiring solid waste facility permit applicants furnish fingerprints for criminal
background checks; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the division department. Subject to section
seven of this article and other provisions of law, the secretary shall organize the department into such
offices, sections, agencies and other units of activity as may be found by the secretary to be desirable for the orderly, efficient and economical administration of the department and for the
accomplishment of its objects and purposes. The secretary may appoint a deputy secretary, chief of
staff, assistants, hearing officers, clerks, stenographers and other officers, technical personnel and
employees needed for the operation of the department and may prescribe their powers and duties and
fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate supervisory officers or other officers
or employees of the department to substitute for him or her on any board or commission established
under this code or to sit in his or her place in any hearings, appeals, meetings or other activities with
such substitute having the same powers, duties, authority and responsibility as the secretary. The
secretary has the power to delegate, as he or she considers appropriate, to supervisory officers or
other officers or employees of the department his or her powers, duties, authority and responsibility
relating to issuing permits, hiring and training inspectors and other employees of the department,
conducting hearings and appeals and such other duties and functions set forth in this chapter or
elsewhere in this code.
(c) The secretary has responsibility for the conduct of the intergovernmental relations of the
department, including assuring:
(1) That the department carries out its functions in a manner which supplements and
complements the environmental policies, programs and procedures of the federal government, other
state governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the division department consult with
individuals responsible for making policy relating to environmental issues in the federal government,
other state governments and other instrumentalities of this state concerning differences over
environmental policies, programs and procedures and concerning the impact of statutory law and
rules upon the environment of this state.
(d) In addition to other powers, duties and responsibilities granted and assigned to the
secretary by this chapter, the secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the 'Department of Environmental
Protection' any contract or agreement with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations, partnerships or individuals: Provided, That the
powers granted to the secretary to enter into agreements or contracts and to make expenditures and
obligations of public funds under this subdivision may not exceed or be interpreted as authority to
exceed the powers granted by the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that comprise and are incorporated into each
secretary's department pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection methods and disseminate
information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for environmental protection
purposes; to investigate for violations of statutes or rules which the division department is charged
with enforcing; to serve and execute warrants and processes; to make arrests; issue orders, which for
the purposes of this chapter include consent agreements; and to otherwise enforce the statutes or
rules which the division department is charged with enforcing;
(4) Require any applicant or holder of a permit to install, establish, modify, operate or close
a solid waste facility to furnish the fingerprints of the applicant or permittee; any officer, director or
manager of the applicant or permittee; any person owning a five percent or more interest, beneficial
or otherwise, in the applicant's or permittee's business; or any other person conducting or managing
the affairs of the applicant or permittee or of the proposed licensed premises, in whole or in part.
These fingerprints may be used to obtain and review any police record for the purposes that may be
relevant pursuant to section five, article fifteen of this chapter, and to use the fingerprints furnished
to conduct a criminal records check through the Criminal Identification Bureau of the West Virginia
State Police and a national criminal history check through the Federal Bureau of Investigation. The
results of the checks shall be provided to the secretary.
(4) (5) Acquire for the state in the name of the 'Department of Environmental Protection' by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the
Department of Environmental Protection, gifts, donations, contributions, bequests or devises of
money, security or property, both real and personal, and any interest in property;
(5) (6) Provide for workshops, training programs and other educational programs, apart from
or in cooperation with other governmental agencies, necessary to ensure adequate standards of public
service in the department. The secretary may provide for technical training and specialized
instruction of any employee. Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The secretary is authorized to pay out of federal
or state funds, or both, as such funds are available, fees and expenses incidental to such the
educational programs, training and instruction. Eligibility for participation by employees will shall
be in accordance with guidelines established by the secretary;
(6) (7) Issue certifications required under 33 U. S. C. §1341 of the federal Clean Water Act
and enter into agreements in accordance with the provisions of section seven-a, article eleven of this
chapter. Prior to issuing any certification the secretary shall solicit from the Division of Natural
Resources reports and comments concerning the possible certification. The Division of Natural
Resources shall direct the reports and comments to the secretary for consideration; and
(7) (8) Notwithstanding any provisions of this code to the contrary, employ in-house counsel
to perform all legal services for the secretary and the department, including, but not limited to,
representing the secretary, any chief, the department or any office thereof in any administrative
proceeding or in any proceeding in any state or federal court. Additionally, the secretary may call
upon the Attorney General for legal assistance and representation as provided by law.
(e) The secretary shall be appointed by the Governor, by and with the advice and consent of
the Senate, and serves at the will and pleasure of the Governor.
(f) At the time of his or her initial appointment, the secretary must be at least thirty years old
and must shall be selected with special reference and consideration given to his or her administrative
experience and ability, to his or her demonstrated interest in the effective and responsible regulation of the energy industry and the conservation and wise use of natural resources. The secretary must
have at least a bachelor's degree in a related field and at least three years of experience in a position
of responsible charge in at least one discipline relating to the duties and responsibilities for which
the secretary will be responsible upon assumption of the office. The secretary may not be a
candidate for or hold any other public office, may not be a member of any political party committee
and shall immediately forfeit and vacate his or her office as secretary in the event he or she becomes
a candidate for or accepts appointment to any other public office or political party committee.
(g) The secretary shall receive an annual salary as provided in section two-a, article seven,
chapter six of this code and will be is allowed and shall be paid necessary expenses incident to the
performance of his or her official duties. Prior to the assumption of the duties of his or her office,
the secretary shall take and subscribe to the oath required of public officers prescribed by section
five, article IV of the Constitution of West Virginia and shall execute a bond, with surety approved
by the Governor, in the penal sum of ten thousand dollars, which executed oath and bond will be
filed in the Office of the Secretary of State. Premiums on the bond will shall be paid from the
department funds."
The bill was then ordered to third reading.
Com. Sub. for S. B. 504, Relating to child support enforcement ; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page five, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §38-3-18 of said code be amended and reenacted; that §48-1-205, §48-1-225, §48-1-
230 and §48-1-302 of said code be amended and reenacted; that §48-11-103 and §48-11-105 of said
code be amended and reenacted; that said code be amended by adding thereto a new section,
designated §48-13-804; that §48-14-102, §48-14-106, §48-14-203, §48-14-302, §48-14-404, §48-14-
407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and §48-14-801 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §48-14-108;
that §48-15-201 of said code be amended and reenacted; that §48-17-101, §48-17-102, §48-17-103,
§48-17-105, §48-17-106, §48-17-107 and §48-17-109 of said code be amended and reenacted; that
§48-18-102, §48-18-118, §48-18-120, §48-18-202, §48-18-205 and §48-18-206 of said code be
amended and reenacted; and that said code be amended by adding thereto a new section, designated
§48-18-118a, all to read as follows:
CHAPTER 38. LIENS.
ARTICLE 3. JUDGMENT LIENS.
§38-3-18. Limitations on enforcement of judgments.
(a) On a judgment, execution may be issued within ten years after the date thereof. Where
execution issues within ten years as aforesaid, other executions may be issued on such judgment
within ten years from the return day of the last execution issued thereon, on which there is no return
by an officer, or which has been returned unsatisfied.
(b) For any order for child support in an action filed on and after the amendment and
reenactment of this section during the legislative session of two thousand eight, an execution may
be issued upon a judgment for child support, as those terms are defined in chapter forty-eight of this
code, within ten years after the emancipation of the child: Provided, That in cases where the support
order is for more than one child, the limitations set forth in subsection (a) of this section commence
when the youngest child who is the subject of the order on which the execution is based reaches the
age of eighteen or is otherwise legally emancipated.
(c) An action, suit or scire facias may be brought upon a judgment where there has been a
change of parties by death or otherwise at any time within ten years next after the date of the
judgment; or within ten years from the return day of the last execution issued thereon on which there
is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire
facias be against the personal representative of a decedent, it shall be brought within five years from
the qualification of such representative.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) 'Attributed income' means income not actually earned by a parent but which may be
attributed to the parent because he or she is unemployed, is not working full time or is working
below full earning capacity or has nonperforming or underperforming assets. Income may be
attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving
consideration to relevant evidence that pertains to the parent's work history, qualifications, education
and physical or mental condition) and determines that the parent is unemployed, is not working full
time or is working below full earning capacity. Income may also be attributed to a parent if the court
finds that the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern
of employment so as to be unemployed, underemployed or employed below full earning capacity;
(2) is able to work and is available for full-time work for which he or she is fitted by prior training
or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in
his or her circumstances would do, then an alternative method for the court to determine gross
income is to attribute to the person an earning capacity based on his or her previous income. If the
obligor's work history, qualifications, education or physical or mental condition cannot be
determined, or if there is an inadequate record of the obligor's previous income, the court may, as
a minimum, base attributed income on full-time employment (at forty hours per week) at the federal
minimum wage in effect at the time the support obligation is established. In order for the court to
consider attribution of income, it is not necessary for the court to find that the obligor's termination
or alteration of employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is
otherwise working below full earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to whom both of the parties owe a joint legal responsibility for support and such children are of preschool age or are handicapped or
otherwise in a situation requiring particular care by the parent;
(2) The parent is pursing a plan of economic self-improvement which will result, within a
reasonable time, in an economic benefit to the children to whom the support obligation is owed,
including, but not limited to, self-employment or education: Provided, That if the parent is involved
in an educational program, the court shall ascertain that the person is making substantial progress
toward completion of the program;
(3) The parent is, for valid medical reasons, earning an income in an amount less than
previously earned; or
(4) The court makes a written finding that other circumstances exist which would make the
attribution of income inequitable: Provided, That in such case the court may decrease the amount
of attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming or underperforming assets,
other than the parent's primary residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a rate equivalent to the current
six-month certificate of deposit rate or such other rate that the court determines is reasonable.
§48-1-225. Extraordinary medical expenses defined.
'Extraordinary medical expenses' means uninsured medical expenses in excess of two
hundred fifty dollars per year per child which are recurring and can reasonably be predicted by the
court at the time of establishment or modification of a child support order. Such expenses shall
include, but not be limited to, insurance copayments and deductibles, reasonable costs for necessary
orthodontia, dental treatment, asthma treatments, physical therapy, prescription pharmaceuticals,
vision therapy and eye care and any uninsured chronic health problem.
§48-1-230. Income defined.
'Income' includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income due or to be due in the future to an individual from his or her employer and successor employers;
(2) Any payment due or to be due in the future to an individual from a profit-sharing plan,
a pension plan, an insurance contract, an annuity, Social Security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes
and overtime pay;
(3) Any amount of money which is owing to an individual as a debt from an individual,
partnership, association, public or private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state or a political subdivision of another
state or any other legal entity which is indebted to the obligor;
(4) Any amount of money which is held by the Regional Jail Authority for an inmate in an
inmate's concession account.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an obligation to pay interest arises
under this chapter, the rate of interest is ten five percent per annum and proportionate thereto for a
greater or lesser sum, or for a longer or shorter time. Interest awarded shall only be simple interest
and nothing in this section may be construed to permit awarding of compound interest. Interest
accrues only upon the outstanding principal of such obligation.
(b) Notwithstanding any other provision of law, no court may award or approve prejudgment
interest in a domestic relations action against a party unless the court finds, in writing, that the party
engaged in conduct that would violate subsection (b), Rule 11 of the West Virginia Rules of Civil
Procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from
the date the offending representation was presented to the court pursuant to subsection (a) of this
section.
(c) Upon written agreement by both parties, an obligor may petition the court to enter an
order conditionally suspending the collection of all or part of the interest that has accrued on past-due
child support prior to the date of the agreement: Provided, That said agreement shall also establish a reasonable payment plan which is calculated to fully discharge all arrearages within twenty-four
months. Upon successful completion of the payment plan, the court shall enter an order which
permanently relieves the obligor of the obligation to pay the accrued interest. If the obligor fails to
comply with the terms of the written agreement, then the court shall enter an order which reinstates
the accrued interest.
(d) Amendments to this section enacted by the Legislature during the two thousand six
regular session shall become effective the first day of January, two thousand seven.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a) Upon a specific finding of good cause shown and upon findings of fact and conclusions
of law in support thereof, a An order for child support may shall provide that payments of such
support continue beyond the date when the child reaches the age of eighteen, so long as the child is
unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in
a secondary educational or vocational program and making substantial progress towards a diploma:
Provided, That such payments may not extend past the date that the child reaches the age of twenty.
(b) Nothing herein shall be construed to abrogate or modify existing case law regarding the
eligibility of handicapped or disabled children to receive child support beyond the age of eighteen.
(c) The reenactment of this section during the regular session of the Legislature in the year
one thousand nine hundred ninety-four shall not, by operation of law, have any effect upon or vacate
any order or portion thereof entered under the prior enactment of this section which awarded
educational and related expenses for an adult child accepted or enrolled and making satisfactory
progress in an educational program at a certified or accredited college. Any such order or portion
thereof shall continue in full force and effect until the court, upon motion of a party, modifies or
vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of the original order have changed,
in which case the order may be modified;
(2) The facts and circumstances which supported the entry of the original order no longer
exist because the child has not been accepted or is not enrolled in and making satisfactory progress
in an educational program at a certified or accredited college or the parent ordered to pay such
educational and related expenses is no longer able to make such payments, in which case the order
shall be vacated;
(3) The child, at the time the order was entered, was under the age of sixteen years, in which
case the order shall be vacated;
(4) The amount ordered to be paid was determined by an application of child support
guidelines in accordance with the provisions of article 13-101, et seq., of this chapter, or legislative
rules promulgated thereunder, in which case the order may be modified or vacated; or
(5) The order was entered after the fourteenth day of March, one thousand nine hundred
ninety-four, in which case the order shall be vacated.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the benefit of the child, when a motion
is made that alleges a change in the circumstances of a parent or another proper person or persons.
A motion for modification of a child support order may be brought by a custodial parent or any other
lawful custodian or guardian of the child, by a parent or other person obligated to pay child support
for the child or by the Bureau for Child Support Enforcement of the Department of Health and
Human Resources of this state.
(b) The provisions of the order may be modified if there is a substantial change in
circumstances. If application of the guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered a substantial change.
(c) An order that modifies the amount of child support to be paid shall conform to the support
guidelines set forth in article 13-101, et seq., of this chapter unless the court disregards the guidelines
or adjusts the award as provided for in section 13-702.
(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order
should be altered or revised because of a loss or change of employment or other substantial change
affecting income or that the amount of support required to be aid is not within fifteen percent of the
child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court
shall make the forms available to persons desiring to represent themselves in filing a motion for
modification of the support award.
(e) Upon entry of an order modifying a child support amount the court shall, no later than five
days from entry of the order, provide a copy of the modified order to the Bureau for Child Support
Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the
order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of
the original order shall not be returned until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which support is to be established, if a party has been served with
proper pleadings and notified of the date, time and place of a hearing before a family court judge and
does not enter an appearance or file a response, the family court judge shall prepare a default order
for entry establishing the defaulting party's child support obligation consistent with the child support
guidelines contained in this article.
(1) When applying the child support guidelines, the court may accept financial information
from the other party as accurate, pursuant to Rule 13(b) of the Rules of Practice and Procedure for
Family Court; or
(2) If financial information is not available, the court may attribute income to the party based
upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal amount unless, in the court's
discretion, a zero support order should be entered.
(b) All orders shall provide for automatic withholding from income of the obligor pursuant
to part 4, article fourteen of this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section 14-101 by:
(1)A custodial parent of a child when the divorce order or other order which granted
custody did not make provision for the support of the child by the obligor;
(2)A primary caretaker of a child;
(3)A guardian of the property of a child or the committee for a child; or
(4)The Bureau for Child Support Enforcement, on behalf of the state, when the
Department of Health and Human Resources is providing assistance on behalf of the child or the
person to whom a duty of support is owed, in the form of temporary assistance to needy families or
medical assistance, and any right to support has been assigned to the department or in any other case
wherein a party has applied for child support enforcement services from the Bureau for Child
Support Enforcement.
§48-14-106.Modification of support order.
(a) At any time after the entry of an order for support, the court may, upon the verified
petition of an obligee or the obligor, revise or alter such order and make a new order as the altered
circumstances or needs of a child, an obligee or the obligor may render necessary to meet the ends
of justice.
(b) The Supreme Court of Appeals shall make available to the family courts a standard form
for a petition for modification of an order for support, which form will allege that the existing order
should be altered or revised because of a loss or change of employment or other substantial change
affecting income or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court
shall make such forms available to persons desiring to petition the court pro se for a modification
of the support award.
(c) Upon entry of an order modifying a child support amount the court shall, no later than five
days from entry of the order, provide a copy of the modified order to the Bureau for Child Support
Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the
order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of
the original order shall not be returned until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
§48-14-108. Deceased parties in support cases.
(a) In the event of the death of any party to a domestic relations support action, support
payments or a refund of support payments due to the party by the obligee, obligor or the Bureau for
Child Support Enforcement, not in excess of one thousand dollars, may, upon proper demand, be
paid, in the absence of actual notice of the pendency of probate proceedings, without requiring letters
testamentary or of administration in the following order of preference to decedent's:
(1) Surviving spouse;
(2) Children eighteen years of age and over in equal shares; (3) Father and mother, or
survivor; and
(4) Sisters and brothers.
(b) Payments under this section shall release and discharge the obligee, obligor or the Bureau
for Child Support Enforcement to the amount of such payment.
§48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support may be filed with the clerk of the circuit court in the
county in which the obligee or the obligor resides, in the county where the order originated or where
the obligor's source of income is located.
The affidavit may be filed when a payment required by such order has been delinquent, in whole or in part, for a period of fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and shall list the last four digits of
the obligor's Social Security number or numbers, if known;
(2) Name the court which entered the support order and set forth the date of such entry;
(3) State the total amount of accrued support which has not been paid by the obligor; and
(4) List the date or dates when support payments should have been paid but were not, and the
amount of each such delinquent payment; and
(5) (4) State the name and address of the obligor's source of income, if known.
§48-14-302. Affidavit of accrued support.
The affidavit and abstract as provided in section four, article three, chapter thirty-eight of this
code shall be filed with the clerk of the county commission in which the real property is located or
in the county where the order originated. The affidavit shall:
(1) Identify the obligee and obligor by name and address, and shall list the last four digits of
the obligor's Social Security number or numbers, if known;
(2) Name the court which entered the support order and set forth the date of such entry;
(3) Allege that the support obligor is at least thirty days in arrears in the payment of child
support; and
(4) State the total amount of accrued support which has not been paid by the obligor. and
(5) List the date or dates when support payments should have been paid but were not, and the
amount of each such delinquent payment.
§48-14-404. Enforcement of withholding by Bureau for Child Support Enforcement.
The withholding from an obligor's income of amounts payable as spousal or child support
or fees awarded by a court of competent jurisdiction to the state in connection with the establishment
of paternity and support or the enforcement of a support order shall be enforced by the Bureau for
Child Support Enforcement in accordance with the provisions of this Part 4. If an overpayment of spousal or child support occurs and an arrearage exists, the Bureau for Child Support Enforcement
shall first offset the overpayment of spousal or child support against the arrearage. If no arrearage
exists with which to offset the overpayment or the arrearage is not sufficient to offset the
overpayment and the obligee does not enter into a repayment agreement with the Bureau for Child
Support Enforcement, the Bureau for Child Support Enforcement may issue an income withholding
to the obligee's employer to recoup the amount of the overpayment. The income withholding shall
be in the same manner as provided in this article: Provided, That in no circumstances may the
amount withheld exceed thirty-five percent of the disposable earnings for the period, regardless of
the length of time that the overpayment has been owed.
§48-14-407. Contents of notice to source of income.
(a) The source of income of any obligor who is subject to withholding, upon being given
notice of withholding, shall withhold from such obligor's income the amount specified by the notice
and pay such amount to the Bureau for Child Support Enforcement for distribution. The notice given
to the source of income shall contain only such information as may be necessary for the source of
income to comply with the withholding order and no source of income may require additional
information or documentation. Such notice to the source of income shall include, at a minimum, the
following:
(1) The amount to be withheld from the obligor's disposable earnings and a statement that
the amount to be withheld for support and other purposes, including the fee specified under
subdivision (3) of this subsection, may not be in excess of the maximum amounts permitted under
Section 303(b) of the federal Consumer Credit Protection Act or limitations imposed under the
provisions of this code;
(2) That the source of income shall send the amount to be withheld from the obligor's income
to the Bureau for Child Support Enforcement, along with such identifying information as may be
required by the bureau, the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the provisions of subdivision (1) of this subsection, the source of income may deduct a fee, not to exceed one dollar, for administrative costs
incurred by the source of income for each withholding;
(4) That withholding is binding on the source of income until further notice by the Bureau
for Child Support Enforcement or until the source of income notifies the Bureau for Child Support
Enforcement of a termination of the obligor's employment in accordance with the provisions of
section four hundred twelve of this article;
(5) That the source of income is subject to a fine for discharging an obligor from
employment, refusing to employ or taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold income in accordance with the
provisions of the notice, the source of income is liable for the accumulated amount the source of
income should have withheld from the obligor's income;
(7) That the withholding under the provisions of this part shall have priority over any other
legal process under the laws of this state against the same income and shall be effective despite any
exemption that might otherwise be applicable to the same income;
(8) That when an employer has more than one employee who is an obligor who is subject to
wage withholding from income under the provisions of this code, the employer may combine all
withheld payments to the Bureau for Child Support Enforcement when the employer properly
identifies each payment wit the information listed in this part. A source of income is liable to an
obligee, including the State of West Virginia or the Department of Health and Human Resources
where appropriate, for any amount which the source of income fails to identify with the information
required by this part and is therefore not received by the obligee;
(9) That the source of income shall implement withholding no later than the first pay period
or first date for payment of income that occurs after fourteen days following the date the notice to
the source of income was mailed; and
(10) That the source of income shall notify the Bureau for Child Support Enforcement promptly when the obligor terminates his or her employment or otherwise ceases receiving income
from the source of income and shall provide the obligor's last known address and the name and
address of the obligor's new source of income, if known.
(b) The commission Bureau for Child Support Enforcement shall, by administrative rule,
establish procedures for promptly refunding to obligors amounts which have been improperly
withheld under the provisions of this part. When a court reduces an order of support, the Bureau for
Child Support Enforcement is not liable for refunding amounts which have been withheld pursuant
to a court order enforceable at the time that the bureau received the funds unless the funds were kept
by the state. The obligee or obligor who received the benefit of the withheld amounts shall be liable
for promptly refunding any amounts which would constitute an overpayment of the support
obligation.
§48-14-408. Determination of amounts to be withheld.
Notwithstanding any other provision of this code to the contrary which provides for a
limitation upon the amount which may be withheld from earnings through legal process, the amount
of an obligor's aggregate disposable earnings for any given workweek which may be withheld as
support payments is to be determined in accordance with the provisions of this subsection, as
follows:
(1) After ascertaining the status of the payment record of the obligor under the terms of the
support order, the payment record shall be examined to determine whether any arrearage is due for
amounts which should have been paid prior to a twelve-week period which ends with the workweek
for which withholding is sought to be enforced.
(2) Prior to the first day of January, two thousand one, when none of the withholding is for
amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse
or child for whom the proposed withholding is being sought, the amount withheld may not exceed
fifty percent of the obligor's disposable earnings for that week; and
(B) When the obligor is not supporting another spouse or dependent child as described in
paragraph (A) of this subdivision, the amount withheld may not exceed sixty percent of the obligor's
disposable earnings for that week.
(3) Prior to the first day of January, two thousand one, when a part of the withholding is for
amounts which came due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse or dependent child other than the spouse
or child for whom the proposed withholding is being sought, the amount withheld may not exceed
fifty-five percent of the obligor's disposable earnings for that week; and
(B) Where the obligor is not supporting another spouse or dependent child as described in
paragraph (A) of this subdivision, the amount withheld may not exceed sixty-five percent of the
obligor's disposable earnings for that week.
(4) Beginning the first day of January, two thousand one, when none of the withholding is
for amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse
or child for whom the proposed withholding is being sought, the amount withheld may not exceed
forty percent of the obligor's disposable earnings for that week; and
(B) When the obligor is not supporting another spouse or dependent child as described in
paragraph (A) of this subdivision, the amount withheld may not exceed fifty percent of the obligor's
disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when a part of the withholding is
for amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse
or child for whom the proposed withholding is being sought, the amount withheld may not exceed
forty-five percent of the obligor's disposable earnings for that week; and
(B) Where the obligor is not supporting another spouse or dependent child as described in
paragraph (A) of this subdivision, the amount withheld may not exceed fifty-five percent of the obligor's disposable earnings for that week.
(6) In addition to the percentage limitations set forth in subdivisions (2) and (3) of this
section, it shall be a further limitation that when the current month's obligation plus arrearages are
being withheld from salaries or wages in no case shall the total amounts withheld for the current
month's obligation plus arrearage exceed the amounts withheld for the current obligation by an
amount greater than twenty-five percent of the current monthly support obligation.
(7) The provisions of this section shall apply directly to the withholding of disposable
earnings of an obligor regardless of whether the obligor is paid on a weekly, biweekly, monthly or
other basis.
(8) The Bureau for Child Support Enforcement has the authority to prorate the current
support obligation in accordance with the pay cycle of the source of income. This prorated current
support obligation shall be known as the 'adjusted support obligation'. The current support
obligation or the adjusted support obligation is the amount, if unpaid, on which interest will be
charged.
(9) When an obligor acts so as to purposefully minimize his or her income and to thereby
circumvent the provisions of this Part 4 which provide for withholding from income of amounts
payable as support, the amount to be withheld as support payments may be based upon the obligor's
potential earnings rather than his or her actual earnings, and such obligor may not rely upon the
percentage limitations set forth in this subsection which limit the amount to be withheld from
disposable earnings.
(10) Notwithstanding any other provision of this section, the Bureau for Child Support
Enforcement may withhold not more than fifty percent of any earnings denominated as an
employment related bonus to satisfy an outstanding child support arrearage.
§48-14-502. Willful failure or refusal to comply with order to pay support.
If the court finds that the obligor willfully failed or refused to comply with an order requiring
the payment of support, the court shall find the obligor in contempt and may do one or more of the following:
(1) Require additional terms and conditions consistent with the court's support order.
(2) After notice to both parties and a hearing, if requested by a party, on any proposed
modification of the order, modify the order in the same manner and under the same requirements as
an order requiring the payment of support may be modified under the provisions of Part 5-701, et
seq. A modification sought by an obligor, if otherwise justified, shall not be denied solely because
the obligor is found to be in contempt.
(3) Order that all accrued support and interest thereon be paid under such terms and
conditions as the court, in its discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a plan approved by the Bureau
for Child Support Enforcement or to participate in such work activities as the court deems
appropriate.
(5) If appropriate under the provisions of section 1-304:
(A) Commit the contemnor to the county or regional jail; or
(B) Commit the contemnor to the county or regional jail with the privilege of leaving the jail,
during such hours as the court determines and under such supervision as the court considers
necessary, for the purpose of allowing the contemnor to go to and return from his or her place of
employment.
§48-14-503. Limitation on length of commitment.
(a) In a commitment under subdivision (5) of section 14-502 shall not exceed forty-five days
for the first adjudication of contempt or ninety days for any subsequent adjudication of contempt the
court shall confine the contemnor for an indeterminate period not to exceed six months or until such
time as the contemnor has purged himself or herself, whichever shall first occur.
(b) An obligor committed under subdivision (5) of section 14-502 shall be released by court
order if the court has reasonable cause to believe that the obligor will comply with the court's order.
§48-14-701. Posting of bonds or giving security to guarantee payment of overdue support.
(a) An obligor with a pattern of overdue support may be required by order of the court to post
bond, give security or some other guarantee to secure payment of overdue support. The guarantee
may include an order requiring that stocks, bonds or other assets of the obligor be held in escrow by
the court until the obligor pays the support.
(b) No less than fifteen days before such an order may be entered, the Bureau for Child
Support enforcement attorney shall cause the mailing of a notice by first class mail to the obligor
informing the obligor of the impending action, his or her right to contest it, and setting forth a date,
time and place for a meeting with the Bureau for Child Support enforcement attorney and the date,
time and place of a hearing before the family court if the impending action is contested.
§48-14-801. When monthly payments may be increased to satisfy overdue support.
(a) For the purpose of securing overdue support, the Bureau for Child Support Enforcement
has the authority to increase the monthly support payments of an obligor by as much as one hundred
dollars per month to satisfy the arrearage when:
(1) An obligor has failed to make payments as required by a support order and arrears are
equal to an amount of support payable for six months if the order requires support to be paid in
monthly installments; or
(2) An obligor has failed to make payments as required by a support order and arrears are
equal to an amount of support payable for twenty-seven weeks if the order requires support to be
paid in weekly or biweekly installments.
(b) For the purpose of securing overdue support, the Bureau for Child Support Enforcement
has the authority to increase the monthly support payments of an obligor by as much as two hundred
dollars per month to satisfy the arrearage when:
(1) An obligor's gross income equals or exceeds sixty-five thousand dollars; and,
(2) An obligor has failed to make payments as required by a support order and arrears are
equal to an amount of support payable for twelve months if the order requires support to be paid in
monthly installments; or
(3) An obligor has failed to make payments as required by a support order and arrears are
equal to an amount of support payable for fifty-four weeks if the order requires support to be paid
in weekly or biweekly installments.
(b) (c) An increase in monthly support under this section will be in addition to any amounts
withheld from income pursuant to of this article.
(c) (d) This increase in monthly support may be enforced through the withholding process.
ARTICLE 15. Enforcement of support order through action against license.
Part 2. Action Against License.
§48-15-201. Licenses subject to action.
The following licenses are subject to an action against a license as provided for in this article:
(1) A business registration certificate issued under article twelve, chapter eleven of this code
authorizing a person to transact business in the State of West Virginia;
(1) (2) A permit or license issued under chapter seventeen-b of this code authorizing a person
to drive a motor vehicle;
(2) (3) A commercial driver's license issued under chapter seventeen-e of this code
authorizing a person to drive a class of commercial vehicle;
(3) (4) A permit, license or stamp issued under article two or two-b, chapter twenty of this
code regulating a person's activities for wildlife management purposes, authorizing a person to serve
as an outfitter or guide or authorizing a person to hunt or fish;
(4) (5) A license or registration issued under chapter thirty of this code authorizing a person
to practice or engage in a profession or occupation;
(5) (6) A license issued under article twelve, chapter forty-seven of this code authorizing a
person to transact business as a real estate broker or real estate salesperson;
(6) (7) A license or certification issued under article fourteen, chapter thirty-seven of this
code authorizing a person to transact business as a real estate appraiser;
(7) (8) A license issued under article twelve, chapter thirty-three of this code authorizing a person to transact insurance business as an agent, broker or solicitor;
(8) (9) A registration made under article two, chapter thirty-two of this code authorizing a
person to transact securities business as a broker-dealer, agent or investment advisor;
(9) (10) A license issued under article twenty-two, chapter twenty-nine of this code
authorizing a person to transact business as a lottery sales agent;
(10) (11) A license issued under article thirty-two or thirty-four, chapter sixteen of this code
authorizing persons to pursue a trade or vocation in asbestos abatement or radon mitigation;
(11) (12) A license issued under article eleven, chapter twenty-one of this code authorizing
a person to act as a contractor;
(12) (13) A license issued under article two-c, chapter nineteen of this code authorizing a
person to act as an auctioneer; and
(13) (14) A license, permit or certificate issued under chapter nineteen of this code
authorizing a person to sell, market or distribute agricultural products or livestock.
ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.
§48-17-101. Creation of Support Enforcement Commission; number of members.
The West Virginia Support Enforcement Commission, consisting of eight nine members, is
hereby created in the Department of Health and Human Resources and may use the administrative
support and services of that department. The commission is not subject to control, supervision or
direction by the Department of Health and Human Resources, but is an independent, self-sustaining
commission that shall have the powers and duties specified in this chapter.
The commission is a part-time commission whose members perform such duties as specified
in this chapter. The ministerial duties of the commission shall be administered and carried out by
the Commissioner of the Bureau for Child Support Enforcement, with the assistance of such staff
of the Department of Health and Human Resources as the Secretary may assign.
Each member of the commission shall devote the time necessary to carry out the duties and
obligations of the office and the seven members appointed by the Governor may pursue and engage in another business, occupation or gainful employment that is not in conflict with the duties of the
commission.
While the commission is self-sustaining and independent, it, its members, its employees and
the commissioner are subject to article nine-a, chapter six of this code, chapter six-b of this code,
chapter twenty-nine-a of this code and chapter twenty-nine-b of this code.
§48-17-102. Appointment of members of Support Enforcement Commission; qualifications
and eligibility.
(a) Of the eight nine members of the commission, seven members are to be appointed by the
governor: Provided, That no more than five members of the commission may belong to the same
political party.
(1) One member is to be a lawyer licensed by, and in good standing with, the West Virginia
State Bar, with at least five years of professional experience in domestic relations law and the
establishment and enforcement of support obligations;
(2) One member is to be a person experienced as a public administrator in the supervision
and regulation of a governmental agency;
(3) One member is to be an employer experienced in withholding support payments from the
earnings of obligors;
(4) One member is to be a practicing family court judge, as an ex officio member, who will
serve in an advisory capacity, without compensation or voting rights; and
(5) Three members are to be representatives of the public at large, with at least one being an
obligor and one being an obligee.
(b) One member is to be the commissioner of the Bureau for Children and Families,
Department of Health and Human Resources or his or her designee.
(c) The Commissioner of the Bureau for Child Support Enforcement, or his or her designee,
is an ex officio nonvoting member of the commission.
(c) (d) Each member of the commission is to be a citizen of the United States, a resident of the State of West Virginia and at least twenty-one years of age.
§48-17-103. Terms of commission members; conditions of membership.
(a) Beginning first day of June, two thousand eight, and every four years thereafter, the
Governor shall convene the commission to review the child support guidelines, in accordance with
the Code of Federal Regulations, Part 45, Section 302.56(C)(3)(e).
(b) The Governor shall make appointments by the first day of June, two thousand eight, and
on the first day of June every four years thereafter.
(c) The Commissioner shall report the commission's findings and recommendations to the
Legislative Oversight Commission on Health and Human Resources Accountability by the first day
of July, two thousand nine, and by the first day of July every four years thereafter.
(d) The commissioners terms shall expire on the first day of July in the year in which they
submit the required report Legislature as set forth in subsection (c) of this section.
§48-17-105. Commission chairman.
The Commissioner of the Bureau for Child Support Enforcement shall serve as the chair of
the commission.
§48-17-106. Compensation of members; reimbursement for expenses.
(a) Each voting member of the commission shall receive one hundred dollars for each day
or portion thereof spent in the discharge of his or her official duties.
(b) Each member of the commission shall be reimbursed for all actual and necessary
expenses and disbursements involved in the execution of official duties.
§48-17-107. Meeting requirements.
(a) The commission shall meet within the state at least twice per calendar year and at such
other times as the chairman may decide. The commission shall also meet upon a call of four or more
members upon seventy-two hours written notice to each member. at least twice during the one-year
term for the sole purpose of reviewing the child support guidelines set forth in article thirteen of this
chapter. The commission may determine if it needs to convene more frequently to effectively study the guidelines, but shall not meet more than eight times during the one-year term.
(b) Four voting members of the commission are a quorum for the transaction of any business
and for the performance of any duty.
(c) A majority vote of the voting members present is required for any final determination by
the commission.
(d) The commission may elect to meet in executive session after an affirmative vote of a
majority of its members present according to section four, article nine-a, chapter six of this code.
(e) The commission shall keep a complete and accurate record of all its meetings according
to section five, article nine-a, chapter six of this code.
§48-17-109. General duties of support enforcement commission.
The support enforcement commission shall have general responsibility to review and provide
comment to the bureau for child support enforcement on its policies and procedures for obtaining
and enforcing support orders and establishing paternity according to this chapter, as hereinafter
provided, including, without limitation, the responsibility for the following:
(a) To serve as a clearinghouse for information;
(b) To keep a record of all commission proceedings available for public inspection;
(c) To file a written annual report to the governor, the president of the Senate and the speaker
of the House of Delegates on or before the thirtieth day of January of each year, and such additional
reports as the governor or Legislature may request;
(d) To apply for grants;
(e) To form partnerships with state institutions of higher learning;
(f) The commission shall conduct the federally required review [45 C.F.R. 302.56(C)(3)(e)]
of the child support formula every four years and make a report to the Legislature of their findings.
(a) Federal law requires that each state periodically review the formula used to set child
support obligations to determine appropriate awards for the support of children. States are required
to consider current research and data on the costs of and expenditures necessary for rearing children. A process for review of th guidelines should be established to ensure the integrity of the formula and
reviews undertaken to comply with federal law.
(b) The commission shall review and analyze:
(1) The current child support guidelines;
(2) Relevant research and data regarding the cots of child rearing;
(3) Research and data on the application of, and deviations from, the child support guidelines;
(4) Current law, administrative rules and practices regarding child support; and
(5) Any other data the commission deems relevant to the review of the current child support
guidelines.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner. whose duties include the
ministerial management and administration of the office of the support enforcement commission.
The commissioner shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any other profession or occupation,
including the holding of a political office in the state either by election or appointment, while serving
as commissioner;
(4) Be a lawyer licensed by, and in good standing with, the West Virginia State Bar; and
(5) Have responsible administrative experience, possess management skills and have
knowledge of the law as it relates to domestic relations and the establishment and enforcement of
support obligations.
Before entering upon the discharge of the duties as commissioner, the commissioner shall
take and subscribe to the oath of office prescribed in section five, article iv of the Constitution of
West Virginia.
(b) The duties of the commissioner shall include the following:
(1) To direct and administer the daily operations of the commission Bureau for Child Support
Enforcement;
(2) To administer the Child Support Enforcement Fund created pursuant to section 18-107
of this article;
(3) To chair the commission set forth in article seventeen of this chapter for the purpose of
conducting the federally required review of the child support formula every four years and make a
report to the Legislative Oversight Commission on Health and Human Resources Accountability of
the commission's findings;
(3) (4) To keep the records and papers of the commission, including a record of each
proceeding; and
(4) (5) To prepare, issue and submit reports of the commission. and
(5) To perform any other duty that the commission directs.
(c) All payments to the commissioner as compensation shall be made from the Child Support
Enforcement Fund. The commissioner is entitled to:
(1) A reasonable and competitive compensation package to be established by the secretary;
and
(2) Reimbursement for expenses under the standard state travel regulations.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary for the Bureau for Child
Support Enforcement to obtain payment of past-due support from state income tax refunds from
overpayment made to the Tax Commissioner pursuant to the provisions of article twenty-one,
chapter eleven of this code.
(b) The Commissioner for the Bureau for Child Support Enforcement shall establish
procedures necessary for the Bureau for Child Support Enforcement to enforce a support order
through a notice to the Tax Commissioner which will cause any refund of state income tax which would otherwise by payable to an obligor to be reduced by the amount of overdue support owed by
such obligor.
(1) Such legislative rule The procedures shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support Enforcement shall serve on the
obligor or submit to the Tax Commissioner notices of past-due support;
(B) The manner in which such notices shall be served on the obligor or submitted to the Tax
Commissioner;
(C) The necessary information which shall be contained in or accompany the notices;
(D) The amount of the fee to be paid to the Tax commissioner for the full cost of applying
the procedure whereby past-due support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support Enforcement may deduct a twenty-five
dollar fee from the obligor's state income tax refund. This procedure may not require a deduction
from the state income tax refund of an applicant who is a recipient of assistance from the Bureau for
Children and Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be pursued unless the Bureau for
Child Support Enforcement has examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement actions, and has determined that the
amount of past-due support which will be owed, at the time the withholding is to be made, will be
one hundred dollars or more. In determining whether the amount of past-due support will be one
hundred dollars or more, the Bureau for Child Support Enforcement shall consider the amount of all
unpaid past-due support, including that which may have accrued prior to the time that the Bureau
for Child Support Enforcement first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support Enforcement shall enter into
agreements with the Secretary of the Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the Social Security number or numbers and
the address or addresses of any obligor, and the name or names and address or addresses of any employer or employers, in order to provide notice between such agencies to aid the Bureau for Child
Support Enforcement in requesting state income tax deductions and to aid the Tax Commissioner
in enforcing such deductions. In each such case, the Tax Commissioner, in processing the state
income tax deduction, shall notify the Bureau for Child Support Enforcement of the obligor's home
address and Social Security number or numbers. The Bureau for Child Support Enforcement shall
provide this information to any other state involved in processing the support order;
(d) For the purposes of this section, 'past-due support' means the amount of unpaid past-due
support owed under the terms of a support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living; regardless of whether the amount has been
reduced to a judgment or not.
(e) The Bureau for Child Support Enforcement may, under the provisions of this section,
enforce the collection of past-due support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to notifying the Tax Commissioner
of past-due support, a notice to the obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from any refund otherwise payable to
such obligor;
(2) Instruct the obligor of the steps which may be taken to contest the determination of the
Bureau for Child Support Enforcement that past-due support is owed or the amount of the past-due
support; and
(3) Provide information with respect to the procedures to be followed, in the case of a joint
return, to protect the share of the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that
the refund from which withholding is proposed to be made is based upon a joint return, and if the
past-due support which is involved has not been assigned to the Department of Health and Human
Resources, the Bureau for Child Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for Child Support Enforcement that the other person filing the joint return has received his or her proper share of the refund, but such delay
shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax Commissioner under the
provisions of this section and paid to the Bureau for Child Support Enforcement, if the Bureau for
Child Support Enforcement subsequently determines that the amount certified as past due was in
excess of the amount actually owed at the time the amount withheld is to be distributed, the agency
shall pay the excess amount withheld to the obligor thought to have owed the past due support or,
in the case of amounts withheld on the basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support Enforcement shall be distributed
in accordance with the provisions for distribution set forth in 42 U. S. C. §657.
§48-18-118a. Obtaining refunds of overpaid support from state income tax refunds.
(a) Definitions.
(1) 'Obligee' means the same as that term is defined in section two hundred thirty-four,
article one of this chapter.
(2) 'Obligor' means the same as that term is defined in section two hundred thirty-five, article
one of this chapter.
(3) 'Overpaid support' means the same as that term is defined in section two hundred thirty-
five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner of the Bureau for Child
Support Enforcement in establishing and implementing procedures for the collection of overpaid
child support from state income tax refunds that are payable to obligees. The Tax Commissioner
shall collect the refunds and send the amounts to the Bureau for Child Support Enforcement for
distribution to obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement shall provide annual monthly statements of their
account to each obligor and obligee without charge. Additional statements of account shall be provided at a fee of five dollars, unless such fee is waived pursuant to a rule promulgated by the
commission. Statements provided under this subsection are in addition to statements provided for
judicial hearings. The commissioner shall establish procedures whereby an obligor or obligee can
contest or correct a statement of account.
§48-18-202. Request for assistance by party.
(a) To make a request for assistance under this article, a party shall submit the request in
writing to the Bureau for Child Support Enforcement on a form provided by the bureau. The written
request form shall include all of the requesting party's information known to the party that is relevant
to determine the child support amount. The request shall be accompanied by:
(1) A copy of the order being modified, or in the discretion of the bureau, information
sufficient to permit the bureau to retrieve or identify the order;
(2) A form containing a statement of all of the requesting party's information known to the
party that is relevant to determining the amount of child support, including a general statement or
argument advancing the reason the request is being made;
(3) Copies of documentation reasonably available to the requesting party setting forth all of
the requesting party's information that is relevant to determine the amount of child support;
(4) A statement setting forth the relevant information pertaining to the responding party's
earnings and child support that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting party may have in its
possession which would be relevant to determining the responding party's child support obligations;
and
(6) A statement of all other known proceedings pending court proceedings or other pending
requests for assistance involving the parties or related to the child or children whose support is being
reevaluated.
(b) Upon receipt of notification that an obligor is incarcerated in a regional jail or a state or
federal correctional facility, the Bureau for Child Support Enforcement shall determine whether the expected incarceration will exceed six months. If the incarceration will exceed six months, the
bureau shall file a petition to modify child support.
§48-18-205. Bureau action on request of recalculation and presentation of proposed order.
(a) If the bureau determines that no credible information exists to establish finding of a
substantial change in circumstances as required by section one hundred five, article eleven of this
chapter or section one hundred six, article fourteen of this chapter, the Bureau for Child Support
Enforcement shall notify the parties of that fact and notify the parties that the Bureau for Child
Support Enforcement will not be preparing a petition of proposed order seeking modification of the
parties' child support obligation. Under those circumstances, if the parties disagree with the Bureau
for Child Support Enforcement's assessment and wish to independently file a petition for
modification, the parties may still seek modification of child support by filing a petition for
modification of an order for support with the family court under the provisions of section one
hundred five or one hundred six, article eleven of this chapter or under the provisions of section one
hundred six, article fourteen of this chapter.
(b) If the Bureau for Child Support Enforcement determines that there has been a substantial
change of circumstances as required by section one hundred five, article eleven of this chapter or by
section one hundred six, article fourteen of this chapter, then the Bureau for Child Support
Enforcement shall prepare a petition and proposed order modifying the child support order to be filed
with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support Enforcement filed pursuant to
this article shall include the following:
(1) A copy of the proposed order;
(2) A print-out of the child support guidelines calculations;
(3) A notice of the bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the bureau is required or determines to include; and
(6) A form and instructions for filing an objection to the proposed order, should a party wish
to do so, which form shall require a statement of the ground or grounds for filing the objection.
(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child
support guidelines: Provided, That the bureau may disregard the child support guidelines or adjust
the amount as allowed by section seven hundred two, article thirteen of this chapter in the following
instances:
(1) When the previous child support order disregarded the child support guidelines, the
grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order
or are agreed upon by the parties, or are otherwise clear, and those grounds continue to exist and can
be applied to the current circumstances; or
(2) If new grounds for the disregard or adjustment are fully explained in the proposed order.
(e) Within six months of the time that a child support obligation becomes one thousand
dollars in arrears the Bureau for Child Support Enforcement shall notify the obligor that he or she
may be in violation of section twenty-nine, article five, chapter sixty-one of this code, felony
nonsupport, should the arreage increase to eight thousand dollars. The notice shall also advise the
obligor of the availability of child support modification, the amnesty program established in section
three hundred two, article one of this chapter and the possibility of establishing a payment plan with
the bureau: Provided, That where the monthly child support obligation is greater than one thousand
dollars, the notice shall be sent when the arrearage equals to or grater than three months child support
obligation.
(1) If the obligor fails to respond within thirty days, the Bureau for Child Support
Enforcement shall file a petition for contempt pursuant to section five hundred three, article fourteen
of this chapter.
(2) If the obligor responds within thirty days, the Bureau for Child Support Enforcement shall
review the response and file appropriate pleadings which may include a motion for modification of child support.
(3) The Bureau for Child Support Enforcement will have one year from the amendment and
reenactment of this section during the two thousand eight legislative session to notify obligors who
currently owe one thousand dollars or more in child support arrearages or, where the monthly child
support obligation is greater than one thousand dollars, the arrearage is equal to or grater than three
months child support obligation, of the child support modification options available to them.
§48-18-206. Family court action on petition and proposed order prepared by Bureau for
Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for
Child Support Enforcement in accordance with the provisions of this article, the circuit clerk shall
serve a copy of the petition and the proposed order upon all parties to the proceeding by personal
service or by United States certified mail, return receipt requested, and direct the parties to file any
objections to the proposed modified child support order within twenty days of the date of receiving
such notice.
(b) Within five days of the filing of a petition for modification and proposed order, the circuit
clerk shall notify the family court.
(c) If no party files timely objection to the proposed order or timely requests a hearing on the
petition after receiving such notice, then the family court may shall proceed to review the petition
and proposed order sua sponte, and may shall issue the proposed order. If the family court receives
no objection, but the family court concludes that the proposed order should not be entered or should
be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition or proposed order, the family court
shall set a date and time for hearing.
(e) At any hearing on the proposed order, the family court shall treat the proposed order as
a motion for modification made by the party requesting the bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall not be an appeal from the bureau's recommended order. The family court shall notify the parties of the hearing and of the parties' rights
and the procedures to be followed.
(f) The fees to be assessed for filing and service of the petition and the disbursement of the
fee for petitions filed pursuant to this section shall be the same as the fee charged by the clerk for
petitioning for an expedited modification of a child support order, as set forth in section eleven,
article one, chapter fifty-nine of this code."
The bill was then ordered to third reading.
Com. Sub. for S. B. 536, Exempting Supreme Court probation officers' vehicles from
certain registration requirements; on second reading, coming up in regular order, was read a second
time and ordered to third reading.
Com. Sub. for S. B. 545, Relating to tax administration efficiency; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page six, section seven-d, line twenty-nine, following the word
"record", by striking out the word "on" and inserting in lieu thereof the word "one".
And,
On page thirteen, section five, line one hundred thirty-seven, following the word "canceled",
by inserting a comma and the word "revoked".
The bill was then ordered to third reading.
Com. Sub. for S. B. 552, Relating to prepaid wireless calling taxes, fees and charges ; on
second reading, coming up in regular order, was read a second time.
Delegates Armstead, Palumbo, Walters and Lane moved to amend the bill on page thirty-
three, section six-b, line one, by striking out the remainder of the bill and inserting in lieu thereof the
following:
"(a) Beginning on the first day of July, two thousand seven, All CMRS providers as defined
in section two of this article shall, on a monthly basis or otherwise for good cause and as directed by order of the Public Service Commission, collect from each of their in-state two-way service
subscribers a wireless enhanced 911 fee. As used in this section 'in-state two-way service
subscriber' shall have the same meaning as that set forth in the rules of the Public Service
Commission. No later than the first day of June, two thousand six, the Public Service Commission
shall, after the receipt of comments and the consideration of evidence presented at a hearing, issue
an updated order which directs the CMRS providers regarding all relevant details of wireless
enhanced 911 fee collection, including the determination of who is considered an in-state two-way
service subscriber and which shall specify how the CMRS providers shall deal with fee collection
shortfalls caused by uncollectible accounts. The Public Service Commission shall solicit the views
of the wireless telecommunications utilities prior to issuing the order.
(b) The wireless enhanced 911 fee is three dollars seventy-five cents per month for each valid
retail commercial mobile radio service subscription, as that term is defined by the Public Service
Commission in its order issued under subsection (a) of this section: Provided, That beginning on
the first day of July, two thousand five, the wireless enhanced 911 fee shall include ten cents to be
distributed to the West Virginia State Police to be used for equipment upgrades for improving and
integrating their communication efforts with those of the enhanced 911 systems: Provided, however,
That for the fiscal year beginning on the first day of July, two thousand five, and for every fiscal year
thereafter, one million dollars of the wireless enhanced 911 fee shall be distributed by the Public
Service Commission to subsidize the construction of towers. The moneys shall be deposited in a
fund administered by the West Virginia Public Service Commission, entitled Enhanced 911 Wireless
Tower Access Assistance Fund, and shall be expended in accordance with an enhanced 911 wireless
tower access matching grant order adopted by the Public Service Commission. The commission
order shall contain terms and conditions designed to provide financial assistance loans or grants to
state agencies, political subdivisions of the state and wireless telephone carriers for the acquisition,
equipping and construction of new wireless towers, which would provide enhanced 911 service
coverage and which would not be available otherwise due to marginal financial viability of the applicable tower coverage area: Provided further, That the grants shall be allocated among potential
sites based on application from county commissions demonstrating the need for enhanced 911
wireless coverage in specific areas of this state. Any tower constructed with assistance from the fund
created by this subdivision shall be available for use by emergency services, fire departments and
law-enforcement agencies communication equipment, so long as that use does not interfere with the
carrier's wireless signal: And provided further, That the Public Service Commission shall
promulgate rules in accordance with article three, chapter twenty-nine-a of this code to effectuate
the provisions of this subsection. The Public Service Commission is specifically authorized to
promulgate emergency rules: And provided further, That for the fiscal year beginning on the first
day of July, two thousand six, and for every fiscal year thereafter, five percent of the wireless
enhanced 911 fee money received by the Public Service Commission shall be deposited in a special
fund established by the Division of Homeland Security and Emergency Management to be used
solely for the construction, maintenance and upgrades of the West Virginia Interoperable Radio
Project and any other costs associated with establishing and maintaining the infrastructure of the
system. Any funds remaining in this fund at the end of the fiscal year shall automatically be
reappropriated for the following year.
(c) Beginning in the year one thousand nine hundred ninety-seven, and every two years
thereafter, the Public Service Commission shall conduct an audit of the wireless enhanced 911 fee
and shall recalculate the fee so that it is the weighted average rounded to the nearest penny, as of the
first day of March of the respecification year, of all of the enhanced 911 fees imposed by the counties
which have adopted an enhanced 911 ordinance: Provided, That the wireless enhanced 911 fee may
never be increased by more than twenty-five percent of its value at the beginning of
the respecification year: Provided, however, That the fee may never be less than the amount set in
subsection (b) of this section: Provided further, That beginning on the first day of July, two
thousand five, the wireless enhanced 911 fee shall include ten cents to be distributed to the West
Virginia State Police to be used for equipment upgrades for improving and integrating their communication efforts with those of the enhanced 911 systems: And provided further, That
beginning on the first day of July, two thousand five, one million dollars of the wireless enhanced
911 fee shall be distributed by the Public Service Commission to subsidize the construction of
wireless towers as specified in subsection (b) of this section.
(d) The CMRS providers shall, after retaining a three-percent billing fee, send the wireless
enhanced 911 fee moneys collected, on a monthly basis, to the Public Service Commission. The
Public Service Commission shall, on a quarterly and approximately evenly staggered basis, disburse
the fee revenue in the following manner:
(1) Each county that does not have a 911 ordinance in effect as of the original effective date
of this section in the year one thousand nine hundred ninety-seven or has enacted a 911 ordinance
within the five years prior to the original effective date of this section in the year one thousand nine
hundred ninety-seven shall receive eight and one half tenths of one percent of the fee revenues
received by the Public Service Commission: Provided, That after the effective date of this section,
in the year two thousand five, when two or more counties consolidate into one county to provide
government services, the consolidated county shall receive one percent of the fee revenues received
by the Public Service Commission for itself and for each county merged into the consolidated
county. Each county shall receive eight and one half tenths of one percent a pro rata portion of the
remainder of the fee revenues received by the Public Service Commission, based on that county's
percentage of the total number of local exchange telephone access lines and line equivalents in
service in the state: Provided, however, That after the effective date of this section, in the year two
thousand five, when two or more counties consolidate into one county to provide government
services, the consolidated county shall receive one percent of the fee revenues received by the Public
Service Commission for itself and for each county merged into the consolidated county. Then, from
any moneys remaining, each county shall receive a pro rata portion of that remainder based on that
county's population as determined in the most recent decennial census as a percentage of the state
total population. The Public Service Commission shall recalculate the county disbursement percentages on a yearly basis, with the changes effective on the first day of July, and using data as
of the preceding first day of March. The public utilities which normally provide local exchange
telecommunications service by means of lines, wires, cables, optical fibers or by other means
extended to subscriber premises shall supply the data to the Public Service Commission on a county
specific basis no later than the first day of June of each year;
(2) Counties which have an enhanced 911 ordinance in effect shall receive their share of the
wireless enhanced 911 fee revenue for use in the same manner as the enhanced 911 fee revenues
received by those counties pursuant to their enhanced 911 ordinances;
(3) The Public Service Commission shall deposit the wireless enhanced 911 fee revenue for
each county which does not have an enhanced 911 ordinance in effect into an escrow account which
it has established for that county. Any county with an escrow account may, immediately upon
adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow
account for use as specified in subdivision (2), subsection (d) of this section: Provided, That a county
that adopts a 911 ordinance after the original effective date of this section in the year one thousand
nine hundred ninety-seven or has adopted a 911 ordinance within five years of the original effective
date of this section in the year one thousand nine hundred ninety-seven shall continue to receive one
percent of the total 911 fee revenue for a period of five years following the adoption of the
ordinance. Thereafter, each county shall receive that county's eight and one half tenths of one
percent portion of the remaining fee revenue, being disbursed to counties on a pro rata basis: plus
that county's additional pro rata portion of the fee revenues then remaining, based on that county's
population as determined in the most recent decennial census as a percentage of the state total
population: Provided, however, That every five years from the year one thousand nine hundred
ninety-seven, all fee revenue residing in escrow accounts shall be disbursed on the pro rata basis
specified in subdivision (1) of this subsection, except that data for counties without enhanced 911
ordinances in effect shall be omitted from the calculation and all escrow accounts shall begin again
with a zero balance.
(e) CMRS providers have the same rights and responsibilities as other telephone service
suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless
enhanced 911 fee.
(f) Notwithstanding the provisions of section one-a of this article, for the purposes of this
section, the term 'county'means one of the counties provided in section one, article one, chapter one
of this code.
(g) From any funds distributed to a county pursuant to this section, a total of three percent
shall be set aside in a special fund to be used exclusively for the purchase of equipment that will
provide information regarding the x and y coordinates of persons who call an emergency telephone
system through a commercial mobile radio service: Provided, That upon purchase of the necessary
equipment, the special fund shall be dissolved and any surplus shall be used for general operation
of the emergency telephone system as may otherwise be provided by law.
(h) Notwithstanding anything to the contrary in this code, beginning the first day of July, two
thousand eight, prepaid wireless calling service is no longer subject to the wireless enhanced 911
fee."
On the adoption of the amendment, Delegate Armstead demanded the yeas and nays, which
demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 280), and there were--yeas
22, nays 74, absent and not voting 4, with the yeas and absent and not voting being as follows:
Yeas: Armstead, Azinger, Blair, Brown, Duke, Evans, Guthrie, Hatfield, Higgins, Ireland,
Lane, J. Miller, Overington, Palumbo, Porter, Romine, Sobonya, Spencer, Sumner, Walters, Webster
and Wells.
Absent And Not Voting: Frederick, Mahan, Schoen and Tansill.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
There being no further amendments, the bill was then ordered to third reading.
S. B. 570, Allowing county commissions' involvement in joint development efforts; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Political Subdivisions, was reported by
the Clerk and adopted, amending the bill on page two, line four, by striking out the words "county
commissions, municipalities" and inserting in lieu thereof the following "county governing bodies,
municipal governing bodies".
On page two, line fifteen, by striking out the words, "county commissions, municipalities"
and inserting in lieu thereof the following "county governing bodies, municipal governing bodies";
And,
On page two, line twenty-four, by striking out the words, "county commissions,
municipalities" and inserting in lieu thereof the following "county governing bodies and municipal
governing bodies".
The bill was then ordered to third reading.
Com. Sub. for S. B. 571, Relating to certain firefighters' workers' compensation benefits;
on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other
occupational diseases included in "injury" and "personal injury"; definition of
occupational pneumoconiosis and other occupational diseases;
rebuttable
presumption for cardiovascular injury and disease or pulmonary disease for
firefighters.
(a) Subject to the provisions and limitations elsewhere in this chapter, the commission
workers' compensation benefits shall disburse be paid the Workers' Compensation Fund, to the employees of employers subject to this chapter who have received personal injuries in the course of
and resulting from their covered employment or to the dependents, if any, of the employees in case
death has ensued, according to the provisions hereinafter made; and also for the expenses of the
administration of this chapter, as provided in section two, article one of this chapter: Provided, That
in the case of any employees of the state and its political subdivisions, including: Counties;
municipalities; cities; towns; 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 agency or organization established by the department of mental health for the provision
of community health or mental retardation services and which is supported, in whole or in part, by
state, county or municipal funds; board, agency, commission, department or spending unit, including
any agency created by rule of the Supreme Court of Appeals, who have received personal injuries
in the course of and resulting from their covered employment, the employees are ineligible to receive
compensation while the employees are at the same time and for the same reason drawing sick leave
benefits. The state employees may only use sick leave for nonjob-related absences consistent with
sick leave use and may draw workers' compensation benefits only where there is a job-related injury.
This proviso shall not apply to permanent benefits: Provided, however, That the employees may
collect sick leave benefits until receiving temporary total disability benefits. The division of
personnel shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code relating
to use of sick leave benefits by employees receiving personal injuries in the course of and resulting
from covered employment: Provided further, That in the event an employee is injured in the course
of and resulting from covered employment and the injury results in lost time from work and the
employee for whatever reason uses or obtains sick leave benefits and subsequently receives
temporary total disability benefits for the same time period, the employee may be restored sick leave
time taken by him or her as a result of the compensable injury by paying to his or her employer the temporary total disability benefits received or an amount equal to the temporary total disability
benefits received. The employee shall be restored sick leave time on a day-for-day basis which
corresponds to temporary total disability benefits paid to the employer: And provided further, That
since the intent of this subsection is to prevent an employee of the state or any of its political
subdivisions from collecting both temporary total disability benefits and sick leave benefits for the
same time period, nothing in this subsection prevents an employee of the state or any of its political
subdivisions from electing to receive either sick leave benefits or temporary total disability benefits
but not both.
(b) For the purposes of this chapter, the terms 'injury' and 'personal injury' includes
occupational pneumoconiosis and any other occupational disease, as hereinafter defined, and the
commission shall also disburse the workers' compensation fund workers' compensation benefits
shall be paid to the employees of the employers in whose employment the employees have been
exposed to the hazards of occupational pneumoconiosis or other occupational disease and in this
state have contracted occupational pneumoconiosis or other occupational disease, or have suffered
a perceptible aggravation of an existing pneumoconiosis or other occupational disease, or to the
dependents, if any, of the employees, in case death has ensued, according to the provisions
hereinafter made: Provided, That compensation shall not be payable for the disease of occupational
pneumoconiosis, or death resulting from the disease, unless the employee has been exposed to the
hazards of occupational pneumoconiosis in the state of West Virginia over a continuous period of
not less than two years during the ten years immediately preceding the date of his or her last
exposure to such hazards, or for any five of the fifteen years immediately preceding the date of his
or her last exposure. An application for benefits on account of occupational pneumoconiosis shall
set forth the name of the employer or employers and the time worked for each. The commission may
allocate to and divide any charges resulting from such claim among the employers by whom the
claimant was employed for as much as sixty days during the period of three years immediately
preceding the date of last exposure to the hazards of occupational pneumoconiosis. The allocation shall be based upon the time and degree of exposure with each employer.
(c) For the purposes of this chapter, disability or death resulting from occupational
pneumoconiosis, as defined in subsection (d) of this section, shall be treated and compensated as an
injury by accident.
(d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of minute
particles of dust over a period of time due to causes and conditions arising out of and in the course
of the employment. The term 'occupational pneumoconiosis' includes, but is not limited to, such
diseases as silicosis, anthracosilicosis, coal worker's pneumoconiosis, commonly known as black
lung or miner's asthma, silico-tuberculosis (silicosis accompanied by active tuberculosis of the
lungs), coal worker's pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis,
siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused
by occupational pneumoconiosis which are not specifically designated in this section meeting the
definition of occupational pneumoconiosis set forth in this subsection.
(e) In determining the presence of occupational pneumoconiosis, X-ray evidence may be
considered but shall not be accorded greater weight than any other type of evidence demonstrating
occupational pneumoconiosis.
(f) For the purposes of this chapter, occupational disease means a disease incurred in the
course of and resulting from employment. No ordinary disease of life to which the general public
is exposed outside of the employment is compensable except when it follows as an incident of
occupational disease as defined in this chapter. Except in the case of occupational pneumoconiosis,
a disease shall be considered to have been incurred in the course of or to have resulted from the
employment only if it is apparent to the rational mind, upon consideration of all the circumstances:
(1) That there is a direct causal connection between the conditions under which work is performed
and the occupational disease; (2) that it can be seen to have followed as a natural incident of the
work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly
traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to
the character of the business and not independent of the relation of employer and employee; and (6)
that it appears to have had its origin in a risk connected with the employment and to have flowed
from that source as a natural consequence, though it need not have been foreseen or expected before
its contraction: Provided, That compensation shall not be payable for an occupational disease or
death resulting from the disease unless the employee has been exposed to the hazards of the disease
in the state of West Virginia over a continuous period that is determined to be sufficient, by rule of
the board of managers, for the disease to have occurred in the course of and resulting from the
employee's employment. An application for benefits on account of an occupational disease shall
set forth the name of the employer or employers and the time worked for each. The commission may
allocate to and divide any charges resulting from such claim among the employers by whom the
claimant was employed. The allocation shall be based upon the time and degree of exposure with
each employer.
(g) No award shall be made under the provisions of this chapter for any occupational disease
contracted prior to the first day of July, one thousand nine hundred forty-nine. An employee shall
be considered to have contracted an occupational disease within the meaning of this subsection if
the disease or condition has developed to such an extent that it can be diagnosed as an occupational
disease.
(h) For purposes of this chapter a rebuttable presumption that a professional or volunteer
firefighter who has developed a cardiovascular or pulmonary disease or sustained a cardiovascular
injury has received an injury or contracted a disease arising out of and in the course of his or her
employment exists if: (i) The person has been actively employed by a fire department as a
professional firefighter or as a volunteer firefighter for a minimum of two years prior to the
cardiovascular injury or onset of a cardiovascular or pulmonary disease or death; and (ii) the injury
or onset of the disease or death occurred within six months of having participated in firefighting or
a training or drill exercise which actually involved firefighting. When the above conditions are met, it shall be presumed that sufficient notice of the injury, disease or death has been given and that the
injury, disease or death was not self inflicted.
(h) (i) Claims for occupational disease as defined in subsection (f) of this section, except
occupational pneumoconiosis for all workers and pulmonary disease and cardiovascular injury and
disease for professional and volunteer firefighters, shall be processed in like manner as claims for
all other personal injuries.
(i) (j) On or before the first day of January, two thousand four, the Workers' Compensation
Commission shall adopt standards for the evaluation of claimants and the determination of a
claimant's degree of whole-body medical impairment in claims of carpal tunnel syndrome."
The bill was then ordered to third reading.
Com. Sub. for S. B. 593, Clarifying library funding obligation from local share; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §18-9A-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§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; and
(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 required prior to the report
to the Legislature by the Tax Commissioner, the state 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
Effective the first day of July, two thousand thirteen, 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.
(c) Whenever in any year a county assessor or a county commission shall fail or refuse fails
or refuses 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.
(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.
(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 subtractedbefore 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 which is created by
a special act and is due and payable from the levy revenues to a library shall be paid from that
portion of the county school board's discretionary retainage, which is hereby defined as the amount
by which the regular school board the levies which exceeds the proportion determined to be local
share as determined hereunder. If the library funding obligation which is created by a special act and
is due and payable to a library is greater than the amount available in excess of the county's local
share county school board's discretionary retainage, the library funding obligation created by the
special act is amended and is reduced to the amount which is available, of the discretionary
retainage, notwithstanding any provisions of the special act to the contrary. Any excess of the
discretionary retainage over the library funding obligation shall be available for expenditure by the
county board in its discretion for its properly budgeted purposes.
(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, subsection (f) of this section 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 the 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 a continuing obligation of its excess levy revenues instead of an obligation 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 the excess levy occurs is effective or would have been
effective if it had been passed by the voters;
(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 which exists or had existed on its regular levy revenues as the purpose or
one of the purposes for the excess levy to be voted on as a specifically described line item of the
excess levy: Provided, That if the county board has transferred the library obligation to the excess
levy and the excess levy fails to be passed by the voters or the excess levy passes and thereafter
expires upon the time limit for continuation as set forth in section sixteen, article eight, chapter
eleven of this code, then in any subsequent excess levy which the county board thereafter submits
to the voters the library funding obligation again shall be included as one of the purposes of the
subsequent excess levy as a specifically described line item of the excess levy;
(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, is effective or would have been effective if it had been
passed by the voters, 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."
The bill was then ordered to third reading.
Com. Sub. for S. B. 596, Relating to Streamlined Sales and Use Tax Agreement; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page thirty-two, section two, line five hundred ninety-one, following
the paragraph designation (A), by striking out the word "Lay" and inserting in lieu thereof the word
"Clay".
Beginning on page thirty-seven, section two, line six hundred eighty-eight through line
seven hundred seven, by striking out subdivision (57) in its entirety, and by redesignating the
remaining subdivisions accordingly.
And,
On page forty-four, section two-b, line twenty-four, following the words
"Telecommunications service", by inserting the words "or telecommunication service".
The bill was then ordered to third reading.
S. B. 606, Requiring hiring preference for summer school program positions; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 638, Requiring information collection from catalytic converter
purchasers; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page five, following line seventy-one, by adding a new subsection
to read as follows:
"(h) Nothing in this section is intended to apply to a consumer purchasing a vehicle which
contains a catalytic converter, nor is it intended to apply to a consumer who purchases a replacement
catalytic converter for a vehicle."
The bill was then read a third time.
Com. Sub. for S. B. 645, Exempting city and county hospitals from certain audit
requirements; on second reading, coming up in regular order, was read a second time and ordered
to third reading.
S. B. 659, Increasing certain crime victims' benefits; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 671, Increasing presiding Court of Claims' judge compensation; on second reading,
coming up in regular order, was read a second time.
At the request of Delegate DeLong, and by unanimous consent, the bill was advanced to
third reading, and the rule was suspended to permit the consideration of a pending amendment by
the Committee on Finance on third reading.
S. B. 673, Making supplementary appropriation to Department of Health and Human
Resources; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
S. B. 674, Making supplementary appropriation to Department of Administration and
Department of Military Affairs and Public Safety; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
S. B. 722, Granting regulatory power to certain Board of Pharmacy facilities; on second
reading, coming up in regular order, was, on motion of Delegate DeLong, laid over.
At 3:00 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 5:30
p.m., and reconvened at that time.
* * * * * * * *
Evening Session
* * * * * * * * *
At the request of Delegate DeLong, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Chairman White, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 751, Relating to Surface Coal Mining and Reclamation Act,
And,
Com. Sub. for S. B. 778, Relating to veterans' benefits,
And reports the same back with the recommendation that they each do pass.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 466, Authorizing Water Development Authority to administer Dam Safety
Rehabilitation Revolving Fund Loan Program,
And reports the same back with the recommendation that it do pass, and with the
recommendation that second reference of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 466) to the Committee on Finance
was abrogated.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 185, Clarifying mental conditions which prohibit firearms' possession
and creating state registry of such persons,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 224, Creating Joint Emergency Services Act of 2008,
And reports the same back, with a title amendment, with the recommendation that it do pass,
as amended.
Chairman White, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 239, Creating Senior Citizen Property Tax Payment Deferment Act,
Com. Sub. for S. B. 565, Relating to increased real property assessment notice,
And,
S. B. 735, Dedicating parts of certain severance taxes to counties and municipalities,
And reports the same back, with amendment, with the recommendation they each do pass.
At the respective requests of Delegate DeLong, and by unanimous consent, the bills (Com.
Sub. for S. B. 239, Com. Sub. for S. B. 565 and S. B. 735) were taken up for immediate
consideration, read a first time and then ordered to second reading.
Chairman Poling, from the Committee on Education, submitted the following report, which
was received:
Your Committee on Education has had under consideration:
Com. Sub. for S. B. 9, Mandating hunger safety program in public schools,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but tht it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 9) was
referred to the Committee on Finance.
On motion for leave, a resolution was introduced (Originating in the Committee on
Education and reported with the recommendation that it be adopted), which was read by its title, as
follows:
By Delegates Paxton, Perry, Pethtel, M. Poling Duke, Moye, Rodighiero, Romine,
Wysong, Browning, Frederick, Ellis, Ireland, Stephens, Gall, Williams, Rowan, Ennis,
Fragale, Crosier, Wells, Tansill, Shaver, Sumner and J. Miller:
H. C. R. 101 - "Requesting the joint committee on government and finance to make a study
on the condition, role and function of county boards of education in terms of their responsibilities
in ensuring that these local policy-making entities are best prepared to provide educational governance in the 21st Century."
Whereas, County boards of education are statutory entities responsible for governance of
the state's 55 respective school districts; and
Whereas, County boards of education operate with various means of authority within the
strictures of state laws and West Virginia Board of Education rules, regulations, policies and
procedures; and
Whereas, The Legislature and West Virginia Board of Education endorse, support and
promote needed statutes, policies and procedures to ensure that Mountain State students are well-
prepared and equipped to function and participate in a global, 21st Century world;
Whereas, County boards have the responsibility to ensure, based on guidance of statute and
state Board of Education policies, rules and regulations, that students are prepared for a globally
competitive 21st Century world; and
Whereas, County boards must be most prepared to meet these objectives and through
effective governance and boardsmanship, largely provided through training and development as
required by West Virginia Code §18-5-1a; and
Whereas, Statutes, West Virginia Board of Education policies, rules and regulations
necessarily inform, guide and ultimately shape programs of training for county board members; and
Whereas, County boards are responsible for providing the policy leadership necessary to
guide local school districts to accomplish legislative and West Virginia Board of Education; and
Whereas, Such a responsibilities best entail and a thorough review of county board roles
and responsibilities in terms of governance effectiveness and boardsmanship; and
Whereas, The Legislature is the appropriate body to initiate and best discuss emergent
needs in terms of county boards being able to effectively carry out roles and functions; and
Whereas, Legislative-inspired discussions of these roles, responsibilities and function,
given necessary county board member input, can help shape future policy relating to school boards
in the 21st Century; and
Whereas, County boards, through the West Virginia School Board Association, an
association representing each county board in the states, wishes to actively participate in
legislatively-initiated along with invitation and input from other education groups, bodies and
governmental entities as selected by the legislative leadership; therefore, be it
Resolved by the Legislature of West Virginia:
That the joint committee on government and finance is hereby requested to make a study
on the condition, role and function of county boards of education in terms of their responsibilities
in ensuring that these local policy-making entities are best prepared to provide educational
governance in the 21st Century, including, but not limited to, recommendations for training and
development, heightened understanding of role and function, possible enhancement of
compensation; and be it
Further Resolved, That the said joint committee on government and finance is requested
conduct the study and prepare a report of its findings, conclusions and recommendations together
with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the joint committee on government and finance is requested to report
to the regular session of the Legislature, 2009, 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
draft necessary legislation are requested to be paid from legislative appropriations to the joint
committee on government and finance.
The Speaker referred the resolution (H. C. R. 101) to the Committee on Rules.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 2503, Authorizing the Division of Motor Vehicles to issue an identification card to West Virginia residents who already possess a valid driver's license.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its
amendment and requested the House of Delegates to agree to the appointment of a Committee of
Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4074, Creating an Office for Oral Health under the Bureau for Public
Health and authorizing a full time director.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Stollings, Jenkins and Boley.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Perdue, Marshall and Blair.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its
amendment and requested the House of Delegates to agree to the appointment of a Committee of
Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4364, Amending various requirements for motor vehicle dealers.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Chafin, Stollings and Deem.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Hrutkay, Tabb and Schadler.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
Com. Sub. for H. B. 4418, Establishing a statewide reporting system for hospitals to report
their infection rates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4496, Providing opportunities for members of the Teachers' Defined
Contribution Retirement System ("TDC") to the State Teachers Retirement System ("TRS").
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18-7C-13 and §18-7C-14 of the Code of West Virginia, 1931, as amended, be
repealed; that said code be amended by adding thereto a new section, designated section §11-21-12h;
that §18-7A-14, §18-7A-17, §18-7A-18, §18-7A-34 and §18-7A-40 of said code be amended and
reenacted; that §18-7B-7, §18-7B-7a and §18-7B-8 of said code be amended and reenacted; that §18-
7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18-7C-9, §18-7C-
10, §18-7C-11 and §18-7C-12 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated section §18-7C-15; and that §18A-2-2 of said code be
amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-12h. Additional modification reducing federal adjusted gross income for certain State
Teachers Retirement System contribution.
(a) If at least seventy percent of actively contributing members of the Teachers' Defined
Contribution Retirement system affirmatively elect to transfer to the State Teachers Retirement
System within the period provided in article seven-c, chapter eighteen of this code, for tax years
beginning on and after the first day of January, two thousand eight and for any member electing to
make the transfer, in addition to the amounts authorized to be subtracted from federal adjusted gross
income pursuant to subsection (c), section twelve of this article, any lump sum payment made
pursuant to section seven, article seven-c, chapter eighteen of this code for the purpose of receiving
credit in the State Teachers Retirement System for service in the Defined Contribution Retirement
System and any payroll deduction made for the purpose of repaying a loan made for that purpose is
also an authorized modification reducing federal adjusted gross income: Provided, That any rollover
of a qualified tax deferred individual retirement account to the State Teachers Retirement System
is not eligible for the modification authorized by this subsection.
(b) This modification is available regardless of the type of return form filed.
(c) For any lump sum payment made pursuant to article seven-c, chapter eighteen of this code
for the purpose of receiving credit in the State Teachers Retirement System for service in the Defined
Contribution Retirement System, the taxpayer also may elect to carry forward the modification over
a period not to exceed five taxable years, beginning in the taxable year in which the payment was
made.
(d) Notwithstanding any other provision of this section to the contrary, the total modification
reducing federal adjusted gross income in all years shall not exceed the total payment made pursuant to section seven, article seven-c, chapter eighteen of this code for the purpose of receiving full credit
in the State Teachers Retirement System for service in the Defined Contribution Retirement System.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-14. Contributions by members; contributions by employers.
(a) At the end of each month every member of the retirement system shall contribute six
percent of that member's monthly gross salary to the retirement board: Provided, That any member
employed by a state institution of higher education shall contribute on the member's full earnable
compensation, unless otherwise provided in section fourteen-a of this article. The sums are due the
Teachers Retirement System at the end of each calendar month in arrears and shall be paid not later
than fifteen days following the end of the calendar month. Each remittance shall be accompanied
by a detailed summary of the sums withheld from the compensation of each member for that month
on forms, either paper or electronic, provided by the Teachers Retirement System for that purpose.
(b) Annually, the contributions of each member shall be credited to the member's account
in the Teachers Retirement System Fund. The contributions shall be deducted from the salaries of
the members as prescribed in this section and every member shall be considered to have given
consent to the deductions. No deductions, however, shall be made from the earnable compensation
of any member who retired because of age or service and then resumed service unless as provided
in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable under this article, shall equal
annually the total deductions from the gross salary of members required by this section. Beginning
the first day of July, one thousand nine hundred ninety-four, the rate shall be seven and one-half
percent; beginning on the first day of July, one thousand nine hundred ninety-five, the rate shall be
nine percent; beginning on the first day of July, one thousand nine hundred ninety-six, the rate shall
be ten and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-
seven, the rate shall be twelve percent; beginning on the first day of July, one thousand nine hundred ninety-eight, the rate shall be thirteen and one-half percent; and beginning on the first day of July,
one thousand nine hundred ninety-nine and thereafter, the rate shall be fifteen percent: Provided,
That the rate shall be seven and one-half percent for any individual who becomes a member of the
Teachers Retirement System for the first time on or after the first day of July, two thousand five, or
any individual who becomes a member of the Teachers Retirement System as a result of the merger
transfer contemplated in article seven-c of this chapter.
(d) Payment by an employer to a member of the sum specified in the employment contract
minus the amount of the employee's deductions shall be considered to be a full discharge of the
employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the retirement board or with the employer to be forwarded
to the retirement board an enrollment form showing the contributor's date of birth and other data
needed by the retirement board.
§18-7A-17. Statement and computation of teachers' service; qualified military service.
(a) Under rules adopted by the Retirement Board, each teacher shall file a detailed statement
of his or her length of service as a teacher for which he or she claims credit. The Retirement Board
shall determine what part of a year is the equivalent of a year of service. In computing the service,
however, it shall credit no period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of service performed in any calendar
year.
(b) For the purpose of this article, the Retirement Board shall grant prior service credit to new
entrants and other members of the retirement system for service in any of the Armed Forces of the
United States in any period of national emergency within which a federal Selective Service Act was
in effect. For purposes of this section, 'Armed Forces' includes Women's Army Corps, women's
appointed volunteers for emergency service, Army Nurse Corps, SPARS, Women's Reserve and
other similar units officially parts of the military service of the United States. The military service
is considered equivalent to public school teaching, and the salary equivalent for each year of that service is the actual salary of the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military service shall not exceed ten years
for any one member, nor shall it exceed twenty-five percent of total service at the time of retirement.
Notwithstanding the preceding provisions of this subsection, contributions, benefits and service
credit with respect to qualified military service shall be provided in accordance with Section 414(u)
of the Internal Revenue Code. For purposes of this section, 'qualified military service' has the same
meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to
determine all questions and make all decisions relating to this section and, pursuant to the authority
granted to the Retirement Board in section one, article ten-d, chapter five of this code, may
promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u)
of the Internal Revenue Code. No military service credit may be used in more than one retirement
system administered by the Consolidated Public Retirement Board.
(c) For service as a teacher in the employment of the federal government, or a state or
territory of the United States, or a governmental subdivision of that state or territory, the Retirement
Board shall grant credit to the member: Provided, That the member shall pay to the system double
the amount he or she contributed during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be determined by the Retirement board.
The interest shall be deposited in the reserve fund and service credit granted at the time of retirement
shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in
West Virginia. Any transfer of out-of-state service, as provided in this article, shall not be used to
establish eligibility for a retirement allowance and the Retirement board shall grant credit for the
transferred service as additional service only: Provided, however, That a transfer of out-of-state
service is prohibited if the service is used to obtain a retirement benefit from another retirement
system: Provided further, That salaries paid to members for service prior to entrance into the
retirement system shall not be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be denied on the basis of
minimum income rules promulgated by the teachers retirement board: Provided, That the member
or retired member shall pay to the system the amount he or she would have contributed during the
year or years of public school service for which credit was denied as a result of the minimum income
rules of the Teachers Retirement Board.
(e) No members shall be considered absent from service while serving as a member or
employee of the Legislature of the state of West Virginia during any duly constituted session of that
body or while serving as an elected member of a county commission during any duly constituted
session of that body.
(f) No member shall be considered absent from service as a teacher while serving as an
officer with a statewide professional teaching association, or who has served in that capacity, and
no retired teacher, who served in that capacity while a member, shall be considered to have been
absent from service as a teacher by reason of that service: Provided, That the period of service credit
granted for that service shall not exceed ten years: Provided, however, That a member or retired
teacher who is serving or has served as an officer of a statewide professional teaching association
shall make deposits to the Teachers Retirement Board, for the time of any absence, in an amount
double the amount which he or she would have contributed in his or her regular assignment for a like
period of time.
(g) The Teachers Retirement Board shall grant service credit to any former or present
member of the West Virginia Public Employees Retirement System who has been a contributing
member for more than three years, for service previously credited by the Public Employees
Retirement System and: (1) Shall require the transfer of the member's contributions to the Teachers
Retirement System; or (2) shall require a repayment of the amount withdrawn any time prior to the
member's retirement: Provided, That there shall be added by the member to the amounts transferred
or repaid under this subsection an amount which shall be sufficient to equal the contributions he or
she would have made had the member been under the Teachers Retirement System during the period of his or her membership in the Public Employees Retirement System plus interest at a rate to be
determined by the Board compounded annually from the date of withdrawal to the date of payment.
The interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary parochial school, located within
this state and fully accredited by the West Virginia Department of Education, the Retirement Board
shall grant credit to the member: Provided, That the member shall pay to the system double the
amount contributed during the first full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined by the Retirement board. The interest
shall be deposited in the reserve fund and service granted at the time of retirement shall not exceed
the lesser of ten years or fifty percent of the member's total service as a teacher in the West Virginia
public school system. Any transfer of parochial school service, as provided in this section, may not
be used to establish eligibility for a retirement allowance and the Board shall grant credit for the
transfer as additional service only: Provided, however, That a transfer of parochial school service
is prohibited if the service is used to obtain a retirement benefit from another retirement system.
(i) Active members who previously worked in CETA (Comprehensive Employment and
Training Act) may receive service credit for time served in that capacity: Provided, That in order
to receive service credit under the provisions of this subsection the following conditions must be
met: (1) The member must have moved from temporary employment with the participating
employer to permanent full-time employment with the participating employer within one hundred
twenty days following the termination of the member's CETA employment; (2) the board must
receive evidence that establishes to a reasonable degree of certainty as determined by the Board that
the member previously worked in CETA; and (3) the member shall pay to the board an amount equal
to the employer and employee contribution plus interest at the amount set by the board for the
amount of service credit sought pursuant to this subsection: Provided, however, That the maximum
service credit that may be obtained under the provisions of this subsection is two years: Provided
further, That a member must apply and pay for the service credit allowed under this subsection and provide all necessary documentation by the thirty-first day of March, two thousand three: And
provided further, That the board shall exercise due diligence to notify affected employees of the
provisions of this subsection.
(j) If a member is not eligible for prior service credit or pension as provided in this article,
then his or her prior service shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or her former membership
rights as specified in section thirteen of this article only in case he or she has served two years since
his or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l), inclusive, of this section, the board
shall verify as soon as practicable the statements of service submitted. The Retirement board shall
issue prior service certificates to all persons eligible for the certificates under the provisions of this
article. The certificates shall state the length of the prior service credit, but in no case shall the prior
service credit exceed forty years.
(m) Notwithstanding any provision of this article to the contrary, when a member is or has
been elected to serve as a member of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her teaching or administrative duties,
the time served in discharge of his or her duties of the legislative office are credited as time served
for purposes of computing service credit: Provided, That the Board may not require any additional
contributions from that member in order for the board to credit him or her with the contributing
service credit earned while discharging official legislative duties: Provided, however, That nothing
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 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.
(o) Notwithstanding any provision of this chapter to the contrary, actively contributing
members who have twenty-five or more years of service credit in this plan may receive service credit
for prior teaching in a state institution of higher education if the retirement contributions to the
higher education retirement plan authorized in section four-a, article twenty-three, chapter eighteen
of this code have been withdrawn: Provided, That the member must pay to the retirement board
double the amount contributed during the first full year of current employment, multiplied by the
number of years for which credit is granted, plus interest at a rate to be determined by the board and
the member must apply and pay for the service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of December, two thousand eight: Provided,
however, That the maximum service credit that may be obtained under the provisions of this
subsection is three years. The provisions of section twenty-eight-e of this article are not applicable to the amendments made to this section during the two thousand eight regular session.
§18-7A-18. Teachers Employers Contribution Collection Account; Teachers Retirement
System Fund; transfers.
(a) There is hereby created in the State Treasury a special revenue account designated the
'Teachers Employers Contribution Collection Account' to be administered by the Consolidated
Public Retirement Board. The Teachers Employers Contribution Collection Account shall be an
interest-bearing account with interest credited to and deposited in the account and transferred in
accordance with the provisions of this section.
(b) There shall be deposited into the Teachers Employers Contribution Collection Account
the following:
(1) Contributions of employers, through state appropriations, and such amounts shall be
included in the budget bill submitted annually by the Governor;
(2) Beginning on the first day of July, two-thousand five, contributions from each county
in an amount equal to fifteen percent of all salary paid in excess of that authorized for minimum
salaries in sections two and eight-a, article four, chapter eighteen-a of this code and any salary equity
authorized in section five of said article or any county supplement equal to the amount distributed
for salary equity among the counties for each individual who was a member of the Teachers'
Retirement System before the first day of July, two-thousand five: Provided, That the rate shall be
seven and one-half percent for any individual who becomes a member of the Teachers Retirement
System for the first time on or after the first day of July, two-thousand five or any individual who
becomes a member of the Teachers' Retirement System as a result of the merger transfer
contemplated in article seven-c of this chapter;
(3) The amounts transferred pursuant to section eighteen-a of this article; and
(4) Any other moneys, available and not otherwise expended, which may be appropriated or
transferred to this account.
(c) Moneys on deposit in the Teacher Employers Contribution Collection Account shall be transferred monthly in the following order:
(1) To the Teachers' Retirement System Fund the amount certified by the Consolidated
Public Retirement Board as the actuarially required contribution; and
(2) To the Pension Liability Redemption Fund the amount, if any, appropriated in accordance
with section eight, article eight, chapter twelve of this code; and
(3) The balance, if any, to the Employee Pension and Health Care Benefits Fund established
under section thirty-nine, article seven-a of this chapter.
(d) There is hereby continued in the State Treasury a separate irrevocable trust designated the
Teachers' Retirement System Fund. The Teachers' Retirement System Fund shall be invested as
provided in section nine-a, article six, chapter twelve of this code.
(e) There shall be deposited into the Teachers' Retirement System Fund, the following:
(1) Moneys transferred from the Teachers Employers Contribution Collection Account;
(2) Member contributions provided for in section fifteen of this article;
(3) Gifts and bequests to the fund and any accretions and accumulations which may properly
be paid into and become a part of the fund;
(4) Specific appropriations to the fund made by the Legislature;
(5) Interest on the investment of any part or parts of the fund; and
(6) Any other moneys, available and not otherwise expended, which may be appropriated or
transferred to the Teachers Retirement System or the Fund.
(f) The Teachers Retirement System Fund shall be the fund from which annuities shall be
paid.
(g) The Consolidated Public Retirement Board has sole authority to direct and approve the
making of any and all fund transfers as provided in this section, anything in this code to the contrary
notwithstanding.
(h) References in the code to the Teachers Accumulation Fund, the Employers Accumulation
Fund, the Benefit Fund, the Reserve Fund and the Expense Fund mean the Teachers Retirement System Fund.
§18-7A-34. Loans to members.
(a) An actively contributing member of the retirement system upon written application may
borrow from his or her individual account in the Teachers Accumulation Fund Retirement System,
subject to these restrictions:
(1) Loans shall be made in multiples of ten dollars, the minimal loan being one hundred
dollars and the maximum being eight thousand dollars: Provided, That the maximum amount of any
loan when added to the outstanding balance of all other loans shall not exceed the lesser of the
following: (A) Eight thousand dollars reduced by the excess (if any) of the highest outstanding
balance of loans during the one-year period ending on the day before the date on which the loan is
made, over the outstanding balance of loans to the member on the date on which the loan is made;
or (B) fifty percent of the member's contributions to his or her individual account in the Teachers
Accumulations Fund Retirement System: Provided, however, That if the total amount of loaned
money outstanding exceeds forty million dollars, the maximum shall not exceed three thousand
dollars until the Retirement Board determines that loans outstanding have been reduced to an extent
that additional loan amounts are again authorized: Provided further, That the amount of any loan
made pursuant to article seven-c of this chapter is not included for the purposes of determining if the
forty million dollar threshold has been exceeded.
(2) Interest charged on the amount of the loan shall be six percent per annum, or a higher rate
as set by the Board: Provided, That interest charged shall be commercially reasonable in accordance
with the provisions of section 72(p)(2) of the Internal Revenue Code, and the federal regulations
issued thereunder. If repayable in installments, the interest shall not exceed the annual rate so
established upon the principal amount of the loan, for the entire period of the loan, and such charge
shall be added to the principal amount of the loan. The minimal interest charge shall be for six
months.
(3) No member is eligible for more than one outstanding loan at any time: Provided, That the foregoing provision does not apply to any loan made pursuant to article seven-c of this chapter.
(4) If a refund is payable to the borrower or his or her beneficiary before he or she repays the
loan with interest, the balance due with interest to date shall be deducted from the refund.
(5) From his or her monthly salary as a teacher or a nonteacher the member shall pay the loan
and interest by deductions which will pay the loan and interest in substantially level payments in not
more than sixty nor less than six months. Upon notice of loan granted and payment due, the
employer is responsible for making the salary deductions and reporting them to the Retirement
Board. At the option of the board, loan deductions may be collected as prescribed herein for the
collection of members' contribution, or may be collected through issuance of warrant by employer.
If the borrower is no longer employed as a teacher or nonteaching member, the borrower must make
monthly loan payments directly to the Consolidated Public Retirement Board and the Board must
accept the payments.
(6) The entire unpaid balance of any loan, and interest due thereon, shall, at the option of the
board, become due and payable without further notice or demand upon the occurrence with respect
to the borrowing member of any of the following events of default: (A) Any payment of principal
and accrued interest on a loan remains unpaid after it becomes due and payable under the terms of
the loan or after the grace period established in the discretion of the Board; (B) the borrowing
member attempts to make an assignment for the benefit of creditors of his or her refund or benefit
under the retirement system; or (C) any other event of default set forth in rules promulgated by the
board in accordance with the authority granted pursuant to section one, article ten-d, chapter five of
this code: Provided, That any refund or offset of an unpaid loan balance shall be made only at the
time the member is entitled to receive a distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and shall be made upon such
additional terms as to default, prepayment, security, and otherwise as the Retirement board may
determine determines.
(8) Notwithstanding anything herein to the contrary, the loan program authorized by this section shall comply with the provisions of Section 72(p)(2) and Section 401 of the Internal Revenue
Code, and the federal regulations issued thereunder, and accordingly, the Retirement Board is
authorized to: (A) Apply and construe the provisions of this section and administer the plan loan
program in such a manner as to comply with the provisions of Section 72(p)(2) and Section 401 of
the Internal Revenue Code and the federal regulations issued thereunder; (B) adopt plan loan policies
or procedures consistent with these federal law provisions; and (C) take such actions as it deems
necessary or appropriate to administer the plan loan program created hereunder in accordance with
these federal law provisions. The Retirement Board is further authorized in connection with the plan
loan program to take any actions that may at any time be required by the Internal Revenue Service
regarding compliance with the requirements of Section 72(p)(2) or Section 401 of the Internal
Revenue Code, and the federal regulations issued thereunder, notwithstanding any provision in this
article to the contrary.
(b) Notwithstanding anything in this article to the contrary, the loan program authorized by
this section shall not be available to any teacher or nonteacher who becomes a member of the
Teachers Retirement System on or after the first day of July, two thousand five: Provided, That a
member is eligible for a loan under subsection (c), section six, article seven-c of this chapter to pay
all or part of the one and one-half percent contribution for service in the Defined Contribution Plan
actuarial reserve pursuant to section seven, article seven-c, chapter eighteen of this code for the
purpose of receiving full credit in the State Teachers Retirement System for service in the Teachers'
Defined Contribution Retirement System.
§18-7A-40. Higher education employees.
Nothing in this article or article seven-b of this chapter shall be construed:
(1) To be in conflict with section four-a, article twenty-three, chapter eighteen of this code;
or
(2) To affect the membership of higher education employees who are currently members of
either the State Teachers Retirement System created in this article or the Teachers' Defined Contribution Retirement System created in article seven-b of this chapter: Provided, That if the
merger contemplated by article seven-c of this chapter occurs, any higher education employees who
are currently members of the Teachers' Defined Contribution Retirement System shall may become
members of the Teachers Retirement System upon meeting the requirements of article seven-c of this
chapter.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-7. Participation in Teachers' Defined Contribution Retirement System; limiting
participation in existing Teachers Retirement System.
(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as
provided in this section, the Teachers' Defined Contribution Retirement System shall be the single
retirement program for all new employees whose employment commences on or after that date and
all new employees shall be required to participate. No additional new employees except as may be
provided in this section may be admitted to the existing Teachers Retirement System.
(b) Members of the existing Teachers Retirement System whose employment continues
beyond the first day of July, one thousand nine hundred ninety-one, and those whose employment
was terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a
reduction in force are not affected by subsection (a) of this section and shall continue to contribute
to and participate in the existing Teachers Retirement System without a change in plan provisions
or benefits.
(c) Any person who was previously a member of the Teachers Retirement System and who
left participating employment before the creation of the Teachers' Defined Contribution Retirement
System on the first day of July, one thousand nine hundred ninety-one, and who later returned returns
to participating employment after the effective date of this section has the right to elect to shall return
to the existing Teachers Retirement System or to elect to participate in the Defined Contribution
System. The election shall be made at the time of his or her reemployment, is irrevocable and shall
be made upon forms approved by and filed with the West Virginia Consolidated Public Retirement Board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one,
a member of the existing Teachers Retirement System who left participating employment before the
creation of the Teachers' Defined Contribution Retirement System on the first day of July, one
thousand nine hundred ninety-one, and who later returned to participating employment after that date
and who was precluded from returning to the existing Teachers Retirement System as a result of
prior provisions of this section, may elect, pursuant to the provisions of this section, readmission to
the existing Teachers Retirement System: Provided, That persons who are eligible to, and who make
the election to, terminate their participation in the Defined Contribution System and to return to
participation in the existing Teachers Retirement System as provided in this section shall make the
election, on a form approved by and filed with the West Virginia Consolidated Public Retirement
Board on or before the thirtieth day of June, two thousand two: Provided, however, That as a
condition of the right of readmission to the existing Teachers Retirement System, a person making
the election provided in this section whose Defined Contribution Account had not, prior to election,
been divided by a qualified domestic relations order, shall pay an additional contribution to the
existing Teachers Retirement System equal to one and one-half percent of his or her annual gross
compensation earned for each year during which he or she participated in the Defined Contribution
System and shall consent and agree to the transfer of his or her total account balance in the Defined
Contribution System as of the most recent plan valuation immediately preceding his or her transfer
to the existing Teachers Retirement System. For a person making the election provided in this
section whose defined contribution account had, prior to the election, previously been divided by a
qualified domestic relations order, the cost to transfer to the existing Teachers Retirement System
shall be actuarially determined by the Consolidated Public Retirement Board. Upon verification of
that person's eligibility to return to participation in the existing Teachers Retirement System and the
tender and transfer of funds as provided in this subsection, a person making this election shall
receive service credit for the time the member participated in the Defined Contribution System as if his or her participation had been in the existing Teachers Retirement System: Provided further,
That the right to terminate participation in the Defined Contribution System and to resume
participation in the existing Teachers Retirement System as provided in this section is irrevocable
and shall not apply to any person who, while a member of the Teachers Retirement System,
voluntarily elected to terminate his or her membership in the Teachers Retirement System and to
become a participant in the Defined Contribution System pursuant to section eight of this article
become a member of the Teachers Retirement System upon meeting the requirements provided in
article seven-c of this chapter.
(e) Any employee whose employment with an employer was suspended or terminated while
he or she served as an officer with a statewide professional teaching association, is eligible for
readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended
as a result of an approved leave of absence, approved maternity or paternity break in service or any
other approved break in service authorized by the Board is eligible for readmission to the existing
retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to
membership in the existing Teachers Retirement System, the Consolidated Public Retirement Board
shall decide the question.
(h) Any individual who is not a 'member' or 'employee' as defined by section two of this
article and any individual who is a leased employee is not eligible to participate in the Teachers'
Defined Contribution Retirement System. For purposes of this section, a 'leased' employee means
any individual who performs services as an independent contractor or pursuant to an agreement with
an employee leasing organization or other similar organization. In all cases in which a question
exists as to whether an individual is eligible for membership in this system, the Consolidated Public
Retirement Board shall decide the question.
(i) Effective the first day of July, two thousand five and continuing through the first day of two thousand six, any employee of River Valley Child Development Services, Inc., who is a member
of the Teachers' Defined Contribution Retirement System may elect to withdraw from membership
and join the private pension plan provided by River Valley Child Development Services, Inc.
(j) River Valley Child Development Services, Inc., and its successors in interest shall provide
for their employees a pension plan in lieu of the Teachers' Defined Contribution Retirement System
on or before the first day of July, two thousand five, and continuing thereafter during the existence
of the River Valley Child Development Services, Inc., and its successors in interest. All new
employees hired after the thirtieth day of June, two thousand five, shall participate in the pension
plan in lieu of the Teachers' Defined Contribution Retirement System.
(k) The administrative body of River Valley Child Development Services, Inc., shall, on or
before the first day of June, two thousand five, give written notice to each employee who is a
member of the Teachers' Defined Contribution Retirement System of the option to withdraw from
or remain in the system. The notice shall include a copy of this section and a statement explaining
the member's options regarding membership. The notice shall include a statement in plain language
giving a full explanation and actuarial projection figures, prepared by an independent actuary, in
support of the explanation regarding the individual member's current account balance, vested and
nonvested, and his or her projected return upon remaining in the Teacher's Defined Contribution
Retirement System until retirement, disability or death, in comparison with the projected return upon
withdrawing from the Teachers' Defined Contribution Retirement System and joining a private
pension plan provided by River Valley Child Development Center, Inc., and remaining therein until
retirement, disability or death. The administrative body shall keep in its records a permanent record
of each employee's signature confirming receipt of the notice.
§18-7B-7a. Plan closed to persons employed for the first time after June, 2005; former
employees.
The retirement system created and established in this article shall be closed and no new
members accepted in the system after the thirtieth day of June, two thousand five. Notwithstanding the provisions of sections seven and eight of this article, all persons who are regularly employed for
full-time service as a member or an employee whose initial employment commences after the
thirtieth day of June, two thousand five, shall become a member of the State Teachers' Retirement
System created and established in article seven-a of this chapter: Provided, That any person rehired
after the thirtieth day of June, two thousand five, shall become a member of the Teachers' Defined
Contribution Retirement System created and established in this article, or of the Teachers Retirement
System created and established in article seven-a of this chapter, depending upon which system he
or she last contributed to while he or she was employed with an employer mandating membership
and contributions to one of those plans: Provided, however, That if, and only if, the Teachers'
Defined Contribution Retirement System is merged and consolidated with the Teachers Retirement
System pursuant to the provisions of article seven-c of this chapter, then all employees shall be a
member of the Teachers Retirement System as of the first day of July, two thousand six, as provided
in article seven-c of this chapter a rehired person who thereby becomes a member of the Teachers'
Defined Contribution Retirement System may become a member of the Teachers Retirement System
within the applicable time periods and upon meeting the requirements provided in article seven-c
of this chapter.
§18-7B-8. Voluntary participation in system; expiration of right to elect membership in
defined contribution system.
(1) Any employee who is a member of the existing retirement system may, upon written
election, voluntarily elect membership in the Teachers' Defined Contribution Retirement System,
on a prospective basis, on or after the first day of July, one thousand nine hundred ninety-one. All
benefits earned by any employee making such a voluntary election under the existing retirement
system prior to such a the voluntary election shall be frozen and made available to that employee
upon retirement as provided by the existing retirement system. A member of the existing retirement
system who has less than five years of contributing service in the existing retirement system may
elect to withdraw his or her contribution plus interest thereon as if such the member is terminating employment and upon withdrawal shall deposit such the funds in the defined contribution system:
Provided, That such the member's years of contributing service in the existing system shall be
applied toward the years of employment service required under section eleven of this article:
Provided, however, That this election shall be is allowed on a retroactive basis to the first day of
July, one thousand nine hundred ninety-one. For the purposes of this section, 'frozen' means that
the member's salary, years of service and any other factor to determine benefits shall be calculated
as of the date that the member elected membership in the defined contribution system and after that
date no increase in salary, years of service or any other factor may be used to increase the retirement
benefit above that which it would be if a person retired upon the date that the election is made. After
having made such the election, the employee may not change such election or again become a
member of the existing retirement system.
(2) Notwithstanding any provision of this section to the contrary, after the thirtieth day of
June, two thousand five, no person who is a member of the State Teachers Retirement System may
elect membership in the Teachers' Defined Contribution Retirement System.
ARTICLE 7C. TRANSFER FROM TEACHERS' DEFINED CONTRIBUTION
RETIREMENT SYSTEM TO STATE TEACHERS
RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the 'Teachers Retirement Equity Transfer Act'.
§18-7C-2. Legislative findings and purpose.
(a) The Legislature declares that the State of West Virginia and its citizens have always
believed in a strong public education system. The Constitution of this state mandates a thorough and
efficient public education system. The Legislature notes that the quality of our state's education
system is dependent, inter alia, upon the motivation and quality of its teachers and educational
service personnel.
(b) The Legislature finds and declares that the State of West Virginia is privileged to be the home of some of the best teachers and education service personnel in this nation and that our
teachers and education service personnel are dedicated and hard-working individuals. The
Legislature further finds and declares that our teachers and education service personnel deserve a
retirement program whereby they know in advance what their retirement benefit will be, a defined
benefit retirement program where our teachers and service personnel will not have to bear the risk
of investment performance to receive their full retirement benefit. The Legislature notes that
uncertainty exists in the investment markets, especially in the post-September eleventh era, and that
placing this risk and uncertainty upon the state in the form of a defined benefit plan will protect and
ensure a meaningful retirement benefit for our teachers and educational service personnel.
(c) The Legislature declares that it is in the best interests of the teachers and education service
personnel in this state, as well as its entire system of public education in this state, and conducive
to the fiscal solvency of the State Teachers Retirement System, that members of the Teachers'
Defined Contribution Retirement System be merged with afforded the opportunity to transfer from
that retirement system to the State Teachers Retirement System in a manner that is consistent with
the prudent and fiscally sound management of the State Teachers Retirement System.
(d) The Legislature also finds that a fiscally sound retirement program with an ascertainable
benefit aids in the retention and recruitment of teachers and school service personnel and that the
provisions of this article are designed to accomplish the goals set forth in this section.
(e) The Legislature has studied this matter diligently and in making the determination to
merge the two plans has availed itself of an actuarial study of the proposed merger by the actuary of
the Consolidated Public Retirement Board and has engaged the service of two independent actuaries.
(f) The Legislature further finds and declares that members of a defined contribution system
who must bear the attendant market risk and performance of their investments are truly being
provided a significant and greater benefit where the defined contribution system is replaced with a
defined benefit system in which the employer bears the risk of market fluctuations and investment
performance, especially where those members decide through an election process whether to trade the defined contribution system for a defined benefit system.
(b) It is the purpose of this article to provide a process for members of the Teachers' Defined
Contribution Retirement System to transfer to the State Teachers Retirement System in the manner
the Legislature has determined by this enactment to be the most conducive to the prudent and fiscally
sound management of the State Teachers Retirement System.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Actively contributing member of the Teachers' Defined Contribution Retirement
System' means a member of that retirement system who was actively contributing to the Teachers'
Defined Contribution Retirement System on the thirty-first day of December, two thousand seven.
(2) 'Actuarial Reserve' means the Actuarial Reserve Lump Sum Value of the additional
service credit being purchased by a member so electing in accordance with the provisions of section
seven of this article.
(3) 'Actuarial Reserve Adjusted Salary' means either:
(A) For a member with a full year service credit in the fiscal year ending the thirtieth day of
June, two thousand seven, the member's two thousand seven fiscal year salary increased by seven
percent;
(B) For a member with less than a full year service credit in the fiscal year ending the thirtieth
day of June, two thousand seven, the member's two thousand seven fiscal year salary annualized to
a full year based on the partial year service credit increased by seven percent; or
(C) For a member without service credit in the fiscal year ending the thirtieth day of June,
two thousand seven, the member's annualized contract salary in effect on the thirty-first day of
December, two thousand seven increased by seven percent.
(4) 'Actuarial Reserve Benefit Date' means the first day of the month coincident with or next
following the date at which the member attains the age of sixty, or the thirtieth day of June, two
thousand nine, whichever is later.
(5) 'Actuarial Reserve Benefit Date Factors' mean the actuarial lump sum value factors based
on a life only annuity starting on the actuarial reserve benefit date applying the 1983 Group Annuity
Mortality Tables on a seventy-five percent female and a twenty-five percent male blended unisex
basis and interest at seven and one-half percent.
(6) 'Actuarial Reserve Discount Factor' means the annual discount factor applied for the
period between the thirtieth day of June, two thousand nine and the actuarial reserve benefit date,
if any. This factor based on the State Teachers Retirement System actuarial valuation assumptions
shall estimate the impact of mortality, disability, and economic factors for the discount period by
application of a net four percent discount rate.
(7) 'Actuarial Reserve Lump Sum Value' means a single sum amount calculated as: A
benefit of two percent multiplied by the Teachers' Defined Contribution Retirement System service
credit being purchased multiplied by the actuarial reserve adjusted salary; the benefit multiplied by
the actuarial reserve benefit date factors to determine the lump sum value multiplied by the actuarial
reserve discount factor.
(8) 'Additional service' means the difference between the total Teachers' Defined
Contribution Retirement System service credit and the service being credited pursuant to section
seven of this article.
(9) 'Affirmatively elect to transfer' means the voluntary execution and delivery to the
Consolidated Public Retirement Board, by a member of the Teachers' Defined Contribution
Retirement System of a document in a form prescribed by the board that irrevocably authorizes the
board to transfer the member and all the member's assets in the Teachers' Defined Contribution
Retirement System to the State Teachers Retirement System: Provided, That delivery of the
document to the Consolidated Public Retirement Board may be accomplished through submission
of the document to the supervisor of a work site pursuant to section eight of this article: Provided,
however, That any previous member of the State Teachers Retirement System who voluntarily
elected to terminate his or her membership in the State Teachers Retirement System to become a member of the Teachers' Defined Contribution Retirement System and signed an irrevocable transfer
request also may affirmatively elect to transfer notwithstanding the prior transfer request;
(10) 'Assets' means all member contributions and employer contributions made on the
member's behalf to the Defined Contribution Retirement System and earnings thereon, less any
applicable fees as approved by the board: Provided, That if a member has withdrawn or cashed out
any amounts, the amounts must have been repaid.
(2)(11) 'Board' means the Consolidated Public Retirement Board established in article ten-d,
chapter five of this code, and its employees.
(3) 'Date of merger' means, in the event of a positive vote on the merger, the first day of July,
two thousand six.
(12) 'Date of transfer' means, in the event that seventy percent or more of the actively
contributing members of the Defined Contribution Retirement System voluntarily elect to transfer
their assets to the State Teachers Retirement System, the first day of July, two thousand eight.
(4)(13) 'Defined Contribution Retirement System' means the Teachers' Defined Contribution
Retirement System established in article seven-b of this chapter.
(14) 'Member' means any person who has an account balance standing to his or her credit
in the Teachers' Defined Contribution Retirement System.
(5)(15) 'Salary' means:
(A) For a member contributing to the Defined Contribution Retirement System during the
two thousand five seven fiscal year, the actual salary earned for the two thousand five seven fiscal
year divided by the employment service earned in the two thousand five seven fiscal year.
(B) For a member not contributing to the Defined Contribution Retirement System during
the two thousand five seven fiscal year, the contract salary on the date of rehire.
(6)(16) 'State Teachers Retirement System' means the State Teachers Retirement System
established in article seven-a of this chapter.
§18-7C-4. Voluntary transfers.
(a) Subject to In accordance with the provisions of subsection (b) of this section article, on
the first day of July, two thousand six, the Consolidated Public Retirement Board shall effect the
voluntary transfer of members of the Defined Contribution Retirement System shall be merged and
consolidated with to the State Teachers Retirement System. pursuant to the provisions of this article.
(b) If a majority of the eligible voting at least seventy percent of actively contributing
members of the Teachers' Defined Contribution Retirement System affirmatively elect to transfer
to the State Teachers Retirement System within the period provided in section eight of this article,
then the Consolidated Public Retirement Board shall transfer to the State Teachers Retirement
System, effective the first day of July, two thousand eight, all members who affirmatively elected
to do so during that period. If at least seventy percent of actively contributing members of the
Teachers' Defined Contribution Retirement System do not affirmatively elect to transfer to the State
Teachers Retirement System within that period, do not elect in favor of the merger, then all of the
provisions of this article are void and of no force and effect and the Defined Contribution Retirement
System continues as the retirement system for all members in that system as of the thirtieth day of
June, two thousand six eight.
§18-7C-5. Notice, education, record-keeping requirements.
(a) Commencing not later than the first day of August, two thousand five April, two thousand
eight, the Consolidated Public Retirement Board shall begin an educational program with respect
to the voluntary transfer of actively contributing members of merger of the Teachers' Defined
Contribution Retirement System with and their assets to the State Teachers Retirement System.
(1) This educational program shall address, at a minimum:
(A) The law providing for the merger transfer;
(B) The mechanics of the merger transfer;
(C) The election process processes by which an actively contributing member may
affirmatively elect to transfer;
(D) Relevant dates and time periods;
(E) The benefits, potential advantages and potential disadvantages if members fail or refuse
to approve the merger affirmatively elect to transfer and thereby elect to remain in the Defined
Contribution Retirement System;
(F) The benefits, potential advantages and potential disadvantages of becoming a member
of the State Teachers Retirement System;
(G) Potential state and federal tax implications in general attendant to the various options
available to the members; and
(H) Any other pertinent information considered relevant by the board.
(2) The board shall disseminate the information through:
(A) Its website;
(B) Computer programs;
(C) Written or electronic materials, or both, delivered to each member;
(D) Classes or seminars pursuant to subdivision (3) of this subsection; if in the best judgment
of the board classes or seminars are required to provide the necessary education for a member to
make an informed decision with respect to the
election
(E) At the discretion of the board, through a program of individual counseling which is
optional on the part of the member; and
(F) Through any other educational program considered necessary by the board.
(3) The Consolidated Public Retirement Board shall provide the information set forth in
subdivision (1) of this subsection through classes or seminars in accordance with the following:
(A) The Consolidated Public Retirement Board shall provide training for conducting the
classes or seminars for employees of county boards, for employees of state institutions of higher
education or for any other person the board determines would be appropriate to conduct the classes
or seminars;
(B) Each county board shall require at least two of its employees to attend the training;
(C) Each county board shall ensure that each employee of that county board who is a member
of the Teachers' Defined Contribution Retirement System has had an opportunity to attend a class
or a seminar on the topics set forth in subdivision (1) of this subsection at his or her work site during
his or her workday;
(D) The class or seminar may be conducted by one of the county board employees who
attended the training for conducting the classes or seminars, by any other person who attended the
training or by a representative of a school personnel organization that the county board considers
qualified to conduct the class or seminar;
(E) The classes or seminars may be conducted at the time allocated for professional activities
for teachers on instructional support and enhancement days, before school, after school and at any
other time during an employee's work day: Provided, That the classes or seminars may interfere with
instructional time only if no other time is available to conduct the classes or seminars;
(F) Each county board shall ensure that informational booths are set up at each work site
under the jurisdiction of the county board and that the booths are attended on a rotating basis by an
employee trained to conduct the classes or seminars or by a representative of a school personnel
organization that the county board considers qualified to attend the booth. An attendant of the booth
may receive the written documents authorizing transfer to the State Teachers' Retirement System.
The attendant shall record the receipt of all written documents authorizing the transfer, shall direct
the member submitting the written document to initial a receipt log and shall issue a receipt to the
member submitting the written document. Pursuant to section eight of this article, the person
attending the booth shall transfer any written document authorizing the transfer received, the record
of receipt of the written document and the initialed receipt log to the work site supervisor as soon
thereafter as possible;
(G) During the period provided by this section for the educational program, each county
board and its superintendent shall allow representatives of the Consolidated Public Retirement Board
entry upon the premises of each school in this state where the Consolidated Public Retirement Board determines it to be appropriate on at least one occasion for the duration of at least sixty minutes
during regular school hours to provide such educational programs as the Consolidated Public
Retirement Board may determine determines appropriate for members of the Teachers' Defined
Contribution Retirement System;
(H) Members of the Teachers' Defined Contribution Retirement System may submit to the
person conducting a class or seminar their written document authorizing the Consolidated Public
Retirement Board to transfer the employee and all of his or her assets to the State Teachers'
Retirement System. Pursuant to section eight of this article, the person conducting the class or
seminar shall transfer the written document authorizing the transfer to the work site supervisor as
soon thereafter as possible.
(b) The board shall provide each member with a copy of the written or electronic educational
materials and with a copy of the notice of the election opportunity to affirmatively elect to transfer,
to the extent deliverable, by mailing a copy thereof, first class postage prepaid, through the United
States mails to the most current mailing address provided by the member to the board. The board is
not required to deliver, nor is any member entitled to delivery of, these materials by any other means.
(1) The notice shall provide full and appropriate disclosure regarding the merger and the election
process by which a member may affirmatively elect to transfer, including the date period of the
election opportunity to affirmatively elect to transfer.
(2) The board also shall cause notice of the election to be published in at least ten newspapers
of general circulation in this state. This notice shall be:
(A) By Class III legal advertisement published in accordance with the provisions of article
three, chapter fifty-nine of this code; and
(B) Published not later than thirty days prior to the beginning of the election period and not
sooner than sixty days prior to the beginning of the election period pursuant to section eight of this
article.
(c) It is the responsibility of each member of the Teachers' Defined Contribution Retirement System to keep the board informed of his or her current address. A member who does not is
considered to have waived his or her right to receive any information from the board with respect
to the purposes of this article.
(d) Once the board has complied with the provisions of this section, each member of the
Teachers' Defined Contribution Retirement System is considered to have actual notice of the
election opportunity to affirmatively elect to transfer and all matters pertinent to the election thereto.
§18-7C-6. Conversion of assets from Defined Contribution Retirement System to State
Teachers Retirement System; contributions; loans.
(a) If a majority of members voting elect to merge the Defined Contribution Retirement
System into the State Teachers Retirement System:
(1) The consolidation and merger is governed by the provisions of this article;
(2) The Defined Contribution Retirement System does not exist after the thirtieth day of June,
two thousand six; and
(3) If at least seventy percent of actively contributing members of the Teachers' Defined
Contribution Retirement System affirmatively elect to transfer to the State Teachers Retirement
System within the period provided in section eight of this article, then the Consolidated Public
Retirement Board shall transfer the members and all properties held in the Teachers' Defined
Contribution Retirement System's Trust Fund in trust for those members who affirmatively elected
to do so during that period to the State Teachers Retirement System, effective on the first day of July,
two thousand eight. All members of that system become members of the State Teachers Retirement
System as provided in this article.
(b) Following the election, if the vote is in favor of the merger, the board shall transfer all
properties held in the Defined Contribution Retirement System's Trust Fund to the State Teachers
Retirement System.
(c)(b) To receive full additional credit in the State Teachers Retirement System for service
in the Teachers' Defined Contribution Retirement System for which assets are transferred, members who affirmatively elected to transfer within the period provided in section eight of this article shall
pay into the State Teachers Retirement System a one and one-half percent contribution the actuarial
reserve pursuant to section seven, article seven-c, chapter eighteen of this code: This contribution
shall be calculated as one and one-half percent of the member's estimated total earnings for which
assets are transferred. Provided, That a member may receive one-half the additional credit by paying
the actuarial reserve for the one-half additional service credit. Except as otherwise provided in this
section, each member shall pay the contribution actuarial reserve pursuant to section seven, article
seven-c, chapter eighteen of this code required no later than the thirtieth day of June, two thousand
seven nine.
(1) For a member contributing to the Defined Contribution Retirement System at any time
during the two thousand five fiscal year and commencing membership in the State Teachers
Retirement System on the first day of July, two thousand six:
(A) The estimated total earnings shall be calculated based on the member's salary and the
member's age nearest birthday on the thirtieth day of June, two thousand five;
(B) This calculation shall apply both an annual backward salary scale from that date for prior
years' salaries and a forward salary scale for the salary for the two thousand six fiscal year.
(2) For a member not contributing to the Defined Contribution Retirement System during the
two thousand five fiscal year:
(A) The estimated total earnings shall be calculated based on the member's salary and the
member's age nearest birthday on the member's date of rehire.
(B) This calculation shall apply a backward salary scale from the member's date of rehire for
prior years' salaries.
(3) The calculations in subdivisions (1) and (2) of this subsection are based upon the salary
scale assumption applied in the West Virginia Teachers Retirement System Actuarial Valuation as
of the first day of July, two thousand four, prepared for the Consolidated Public Retirement Board.
This salary scale shall be applied regardless of breaks in service.
(d) (c) The board shall make available to each member a loan for the purpose of paying all
or part of the one and one-half percent contribution required in this section actuarial reserve pursuant
to section seven, article seven-c, chapter eighteen of this code. The loan shall be offered in
accordance with the provisions of section thirty-four, article seven-a of this chapter.
(1) Notwithstanding any provision of this code, rule or policy of the board to the contrary,
the interest rate on any such loan may not exceed seven and one-half percent per annum. The
amount total amount borrowed may not exceed twelve forty thousand dollars: Provided, That the
loan may not exceed the limitations of the Internal Revenue Code Section 72(p).
(2) In the event a loan made pursuant to this section is used to pay the one and one-half
percent actuarial reserve pursuant to section seven, article seven-c, chapter eighteen of this code, the
board shall make any necessary adjustments at the time the loan is made.
(3) Subject to the provisions of subdivision (4) of this section, the The board shall make this
loan available for members to pay the actuarial reserve until the thirtieth day of June, two thousand
seven nine.
(4) Upon returning to employment, a member who has left employment but not withdrawn
his or her funds shall pay the one and one-half percent contribution within one year of being rehired.
The member is eligible for one year following the date of rehire to obtain a loan for paying the
contribution.
(e) (d) The board shall develop and institute a payroll deduction program for repayment of
the loan established in this section.
(f) (e) If the merger and consolidation is duly elected If at least seventy percent of actively
contributing members of the Teachers' Defined Contribution Retirement System affirmatively elect
to transfer to the State Teachers Retirement System within the period provided in section eight of
this article:
(1) As of the first day of July, two thousand six eight, the transferred members' contribution
rate becomes six percent of his or her salary or wages; and
(2) All transferred members who work one hour or more and who make a contribution into
the State Teachers Retirement System on or after the first day of July, two thousand six eight, are
governed by the provisions of article seven-a of this chapter, subject to the provisions of this article.
(g) (f) Subject to the provisions of subdivision (1) of this subsection, if a member has
withdrawn or cashed out part of his or her assets, that member will not receive credit for those
moneys cashed out or withdrawn. The board shall make a determination as to the amount of credit
a member loses based on the periods of time and the amounts he or she has withdrawn or cashed out,
which shall be expressed as a loss of service credit.
(1) A member may repay those amounts he or she previously cashed out or withdrew, along
with interest as determined by the board, and receive the same credit as if the withdrawal or cash-out
never occurred. Such The a member also shall pay the one and one-half percent contribution
actuarial reserve pursuant to section seven, article seven-c, chapter eighteen of this code to receive
full credit for the cashed-out or withdrawn amounts being repaid to the State Teachers Retirement
System.
(2) The loan provided in this section is not available to members to repay previously cashed
out or withdrawn moneys.
(3) If the repayment occurs five or more years following the cash-out or withdrawal, the
member also shall repay any forfeited employer contribution account balance along with interest
determined by the board.
(h) (g) Notwithstanding any provision of subsection (g) (f) to the contrary, if a member has
cashed out or withdrawn any of his or her assets after the last day of June, two thousand one three,
and that member chooses to repurchase that service after the thirtieth day of June, two thousand six
eight, the member shall repay the previously distributed amounts and any applicable interest to the
State Teachers Retirement System.
(i) (h) Any service in the State Teachers Retirement System a member has before the date
of the merger transfer is not affected by the provisions of this article.
(i) The board shall take all necessary steps to see that the voluntary transfers of persons and
assets authorized by this article do not affect the qualified status with the Internal Revenue Service
of either retirement plan.
§18-7C-7. Service credit in State Teachers Retirement System following transfer;
adjustments.
(a) Any member who has affirmatively elected to transfer to the State Teachers Retirement
System within the period provided in section eight of this article transferring all of his or her whose
assets have been transferred from the Teachers' Defined Contribution Retirement System to the State
Teachers Retirement System pursuant to the provisions of this article and who has not made any
withdrawals or cash-outs from his or her assets is entitled to service credit in the State Teachers
Retirement System for each year or part of a year, as governed by the provisions of article seven-a
of this chapter, the member worked and contributed to the Defined Contribution Retirement System
pursuant to subsection (c) of this section.
(b) Any such member who has made withdrawals or cash outs will receive service credit
based upon the amounts transferred. The board shall make the appropriate adjustment to the service
credit the member will receive.
(c) Any member's Defined Contribution Retirement System service credit will be reduced
by twenty-five percent if the member does not pay the one and one-half percent contribution required
by this article upon transfer to the State Teachers Retirement System. If at least seventy percent of
actively contributing members of the Teachers' Defined Contribution Retirement System
affirmatively elect to transfer to the State Teachers Retirement System within the period provided
in section eight of this article, for any member of the Defined Contribution Retirement System who
elects to transfer to the State Teachers Retirement System, his or her service credit in the State
Teachers Retirement System is determined as follows:
(1) If at least seventy percent but less than seventy-five percent of actively contributing
members of the Teachers' Defined Contribution Retirement System affirmatively elect to transfer to the State Teachers Retirement System within the period provided in section eight of this article,
then the member's State Teachers Retirement System credit shall be eighty percent of the member's
Teachers' Defined Contribution Retirement System service credit;
(2) If at least seventy-five percent but less than eighty percent of actively contributing
members of the Teachers' Defined Contribution Retirement System affirmatively elect to transfer
to the State Teachers Retirement System within the period provided in section eight of this article,
then the member's State Teachers Retirement System credit shall be eighty-two and one-half percent
of the member's Teachers' Defined Contribution Retirement System service credit;
(3) If at least eighty percent but less than eighty-five percent of actively contributing members
of the Teachers' Defined Contribution Retirement System affirmatively elect to transfer to the State
Teachers Retirement System within the period provided in section eight of this article, then the
member's State Teachers Retirement System credit shall be eighty-five percent of the member's
Teachers' Defined Contribution Retirement System service credit; and
(4) If at least eighty-five percent of actively contributing members of the Teachers' Defined
Contribution Retirement System affirmatively elect to transfer to the State Teachers Retirement
System within the period provided in section eight of this article, then the member's State Teachers
Retirement System credit shall be eighty-seven and one-half percent of the member's Teachers'
Defined Contribution Retirement System service credit.
(d) To receive additional credit in the State Teachers Retirement System for service in the
Teachers' Defined Contribution Retirement System for which assets are transferred, transferring
members shall have the option to pay into the State Teachers Retirement System the actuarial
reserve, as defined in section two of this article: Provided, That a member may receive one-half the
additional credit by paying the actuarial reserve for the one-half additional service credit. Each
member shall pay the actuarial reserve no later than the thirtieth day of June, two thousand nine.
(e) All service previously transferred from the State Teachers Retirement System to the
Teachers' Defined Contribution Retirement System is considered Teachers' Defined Contribution Retirement System service for the purposes of this article.
(f) Notwithstanding any provision of this code to the contrary, the retirement of a member
who becomes eligible to retire after the member's assets are transferred to the State Teachers
Retirement System pursuant to the provisions of this article may not commence prior to the first day
of September, two thousand eight.
§18-7C-8. Period for affirmative election to transfer; board may contract for professional
services.
(a) The board shall arrange for and hold an election for provide the members of the Teachers'
Defined Contribution Retirement System who are eligible to vote, pursuant to the provisions of
subsection (d) of this section, on the issue of merging and consolidating the an opportunity to
voluntarily execute and deliver to the Consolidated Public Retirement Board, or its designee, a
written document in a form prescribed by the board that irrevocably authorizes the board to transfer
the member and all the member's assets in the Teachers' Defined Contribution Retirement System
into to the State Teachers Retirement System in accordance with the provisions of this article.
(b) If a majority of the eligible voters casting ballots in the election votes in the affirmative
on the issue at least seventy percent of actively contributing members of the Teachers' Defined
Contribution Retirement System affirmatively elect to transfer to the State Teachers Retirement
System:
(1) All members of the Defined Contribution Retirement System will transfer, or have
transferred, all assets held by them or on their behalf in the Defined Contribution Retirement System
to the State Teachers Retirement System The Consolidated Public Retirement Board shall, for each
member who affirmatively elected to transfer as provided in this section, transfer the assets held in
the Teachers' Defined Contribution Retirement System's Trust Fund in trust for that member to the
State Teachers Retirement System on the first day of July, two thousand eight;
(2) On the date of the merger first day of July, two thousand eight, each member who so
elected becomes a member of the State Teachers Retirement System and after working one or more hours and contributing to the State Teachers Retirement System is entitled to the benefits of the State
Teachers Retirement System; and
(3) Each such member is governed by the provisions of the State Teachers Retirement System
subject to the provisions of this article.
(c) If fewer than one half of the members eligible to vote of the Defined Contribution Plan
cast ballots in the election, the election is not valid and binding seventy percent of actively
contributing members of the Teachers' Defined Contribution Retirement System affirmatively elect
to transfer to the State Teachers Retirement System, the transfers described in this section shall not
occur.
(d) Any person who has one dollar or more in assets in the Teachers' Defined Contribution
Retirement System on the last day of December, two thousand five seven, may and is eligible to vote
in the election affirmatively elect to transfer to the State Teachers Retirement System as provided
in this section. For purposes of this article:
(1) The tabulation of the percentage required for transfer as required in this article shall only
include documents affirmatively electing to transfer submitted under the provisions of this
subsection by those who are actively contributing members of the Teachers' Defined Contribution
Retirement System as that term is defined in section three of this article; and
(2) Notwithstanding the opportunity to submit documents affirmatively electing to transfer
extended by this article to members other than those who are actively contributing members of the
Teachers' Defined Contribution Retirement System, there shall be no duty or other obligation on the
part of the board to provide any education, information or notice regarding matters contained in this
article to members who are not actively contributing members of the Teachers' Defined Contribution
Retirement System regarding any matter described in this article, nor any right on the part of those
other members to receive the same.
(e) Notwithstanding any other provision of this code to the contrary, the board may do all
things necessary and convenient to maintain the Teachers' Defined Contribution Retirement System and the State Teachers Retirement System during the transitional period and may retain the services
of the professionals it considers necessary to do so. The board may also retain the services of the
professionals it deems necessary to:
(1) Assist in the preparation of educational materials for members of the Defined
Contribution Retirement System who are eligible to vote on the merger to inform these members of
their options in the election;
(2) Assist in the educational process of the members who are eligible to vote on the merger;
(3) Assist in the election process and the election process for submission of the documents
whereby members may affirmatively elect to transfer; and
(4) Ensure compliance with all relevant state and federal laws.
(f) Due to the time constraints inherent in the merger process initial processes established for
the submission of documents affirmatively electing to transfer set forth in this article in specific, and
due to the nature of the professional services required by the Consolidated Public Retirement Board
in general, the provisions of article three, chapter five-a of this code, relating to the Division of
Purchasing of the Department of Administration do not apply to any materials, contracts for any
actuarial services, investment services, legal services or other professional services authorized under
the provisions of this article.
(g) The election submission of the documents whereby members may affirmatively elect to
transfer may be held through certified mail or in any other method the board determines is in the best
interest of the members: Provided, That for members of the Teachers' Defined Contribution
Retirement System, the submission of the documents whereby those members elect to transfer shall
be pursuant to the procedure established by the Consolidated Public Retirement Board set forth in
subsection (j) of this section. Each ballot shall contain the following language, in bold fifteen-point
type: 'By casting this ballot I am making an educated, informed and voluntary choice as to my
retirement and the retirement system of which I wish to be a member. I am also certifying that I
understand the consequences of my vote in this election.' Each ballot shall be signed by the member voting. The board shall retain the ballots in a permanent file. Any unsigned ballot is void.
(h) The election period for submission of the documents whereby members may affirmatively
elect to transfer shall begin not later than the first day of March April, two thousand six eight. The
board shall ascertain the results of the election submissions not later than the last day of March May,
two thousand six eight. The board shall certify the results of the election submissions to the
Governor, the Legislature and the members not later than the fifth day of April June, two thousand
six eight.
(i) The election submission period terminates and votes elections to transfer may not be cast
or counted accepted from a member after the twelfth day of March May, two thousand six eight,
unless the election is conducted through the United States mail subject to the following:
(1) If conducted elections to transfer are permitted through the mail, any ballot submission
postmarked later than the twelfth day of March May, two thousand six eight, is void and may not be
counted; and
(2) Any election to transfer given to a supervisor at a work site pursuant to subsection (j) of
this section on or before the twelfth day of May, two thousand eight, shall be valid and counted if
the supervisor mails the written documents authorizing transfer by the thirteenth day of May, two
thousand eight.
(j) The board shall take all necessary steps to see that the merger does not affect the qualified
status with the Internal Revenue Service of either retirement plan.
(j) The Consolidated Public Retirement Board shall collaborate with the state superintendent,
the Chancellor for Higher Education and the Chancellor for Community and Technical College
Education to establish a procedure whereby all actively contributing members of the Teachers'
Defined Contribution Retirement System may deliver to the Consolidated Public Retirement Board
or its designee the written document authorizing transfer through a supervisor at each work site
where any contributing member of the Defined Contribution Retirement System is employed. The
procedure shall include at least the following:
(1) The supervisor at each work site is responsible for collecting the written documents
authorizing the transfer from all actively contributing members of the Teachers' Defined
Contribution Retirement System employed at the work site who choose to submit the written
document. The supervisor shall record the receipt of all written documents authorizing transfer, shall
direct the member submitting the written document to initial a receipt log and shall issue a receipt
to the to the member submitting the written document.
(2) On and after the seventh day of May, two thousand eight, but on or before the tenth day
of May, two thousand eight, the supervisor at the work site shall make reasonable efforts to contact
verbally and in writing all actively contributing members of the Teachers' Defined Contribution
Retirement System employed at the work site that have not submitted their written documents as of
that date to remind those members of the upcoming deadline for submitting their written document
authorizing transfer: Provided, That failure of the supervisor to make contact with any of those
members shall not be a basis for a cause of action to allow a member to transfer after the period
provided in this section or for any other cause of action.
(3) The supervisor at each work site shall forward all of the written documents to the
Consolidated Public Retirement Board, or its designee, through certified mail no later than the
thirteenth day of May, two thousand eight. The work site supervisor shall inform the Consolidated
Public Retirement Board of all of the written documents received each day so that the board, or its
designee, can record which members of the Teachers' Defined Contribution Retirement System have
submitted their written documents authorizing transfer pursuant to subsection (k) of this section.
(4) For the purposes of this subdivision, the principal of a school with any of grades
prekindergarten through twelve is the work site supervisor. For the purposes of this subdivision, for
any work site under the jurisdiction of the Higher Education Policy Commission or the West
Virginia Council for Community and Technical College Education, the human resource
administrator or other designee may be considered the work site supervisor. In any case where the
person who is the work site supervisor is in question, the state board, the Chancellor for Higher Education or the Chancellor for Community and Technical College Education, whichever entity has
jurisdiction over the work site, shall designate the supervisor.
(5) The state board, the Chancellor for Higher Education and the Chancellor for Community
and Technical College Education shall ascertain the names of all work site supervisors under their
jurisdiction and transmit a list of the names of the work site supervisors to the Consolidated Public
Retirement Board on or before the fifteenth day of March, two thousand eight.
(k) The Consolidated Public Retirement Board, or its designee, shall record the receipt of all
written documents authorizing the transfer so that it knows the percentage of contributing members
of the Teachers' Defined Contribution Retirement System that have submitted the written documents
by work site and by county.
§18-7C-9. Results considered final.
(a) The election is considered final and each member, whether he or she voted or failed to
vote, is bound by the results of the election. Every member of the Teachers' Defined Contribution
Retirement System is considered to have made an informed, educated, knowing and voluntary
decision and choice with respect to the election opportunities provided by this article to transfer
membership and assets to the State Teachers Retirement System. Those members Each member who
failed or refused to vote are affirmatively elect to transfer is also considered to have made an
informed, educated, knowing and voluntary decision and choice with respect to the election and
voting thereto and are is bound by the results thereof. of the election as if he or she had voted in the
election.
(b) Only one election may be held pursuant to the provisions of this article.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against his or her defined
contribution account is allowed to repurchase service in the State Teachers Retirement System. The
member shall repay any moneys previously distributed to the alternate payee along with the interest
as set by the board. The member shall repay by the last day of June, two thousand twelve fourteen. The provisions of this section are void and of no effect if the members fail to elect to merge and
consolidate there is no transfer from the Teachers' Defined Contribution Retirement System with
to the State Teachers Retirement System. An alternate payee is not, solely as a result of that status,
a member of either the Teachers' Defined Contribution Retirement System or the State Teachers
Retirement System for any purpose under the provisions of this article and no interest held by the
alternate payee is transferred to the State Teachers Retirement System pursuant thereto.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger occurs his or her assets
are transferred to the State Teachers Retirement System pursuant to this article is subject to the
vesting schedule set forth in article seven-a of this chapter: Provided, That if a member is vested
under the Teachers' Defined Contribution Retirement System and his or her last contribution was
not made to the State Teachers Retirement System, that member is subject to the vesting schedule
set forth in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Teachers' Defined Contribution Retirement System who works one
hour or more and who has made a contribution to the State Teachers Retirement System after the
date of merger his or her assets are transferred to the State Teachers Retirement System pursuant to
this article is guaranteed a minimum benefit equal to his or her member contributions plus the vested
portion of employer contributions made on his or her behalf to the Teachers' Defined Contribution
Retirement System as of the thirtieth day of June, two thousand six eight, plus any earnings thereon,
as stated by the board or the board's professional contractor.
(b) A member of the Teachers' Defined Contribution Retirement System who works one hour
or more and who has made contributions to the State Teachers Retirement System after the thirtieth
day of June, two thousand six, where the Defined Contribution Retirement System has been merged
into the State Teachers Retirement System his or her assets are transferred to the State Teachers
Retirement System pursuant to this article, upon eligibility to receive a distribution under article seven-a of this chapter, shall have at a minimum the following three options:
(1) The right to receive an annuity from the State Teachers Retirement System based upon
the provisions of article seven-a of this chapter;
(2) The right to withdraw from the State Teachers Retirement System and receive his or her
member accumulated contributions in the State Teachers Retirement System, plus regular interest
thereon, as set forth in article seven-a of this chapter; or
(3) The right to withdraw and receive his or her member contributions plus the vested portion
of employer contributions made on his or her behalf to the Teachers' Defined Contribution
Retirement System, plus any earnings thereon as of the date of the merger his or her assets are
transferred to the State Teachers Retirement System pursuant to this article, as determined by the
board or its professional third-party benefits administrator pursuant to the vesting provisions of
section twelve of this article. This amount may shall be distributed in a lump sum or in periodic
payments as elected by the member.
(c) Any member of the Teachers' Defined Contribution Retirement System who does not
work one hour or more and who makes no contribution to the State Teachers Retirement System
following approval of the merger and following the date of merger after his or her assets are
transferred to the State Teachers Retirement System pursuant to this article is guaranteed the receipt
of the amount in his or her total vested account in the Teachers' Defined Contribution Retirement
System on the date of merger the transfer, plus interest thereon, at four percent accruing from the
date of merger the transfer. This amount may shall be distributed in a lump sum: or in periodic
payments as elected by the member Provided, That no benefits may be obtained under this
subsection solely by the reciprocity provisions of sections three, four, and six, article thirteen, chapter
five of this code.
§18-7C-15. Funding.
To the extent that the Legislature determines that the operation of the amendment and
reenactment of this article in two thousand eight may cause additional unfunded actuarially accrued liability in the State Teachers Retirement System, the amounts provided by the Legislature through
appropriations made for the purpose of offsetting the additional unfunded actuarially accrued liability
shall be applied, together with any savings therefrom, to the full amortization of the additional
amount through two thousand thirty-four.
CHAPTER 18A. SCHOOL PERSONNEL.
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, which shall state the salary to be paid and shall be in the form prescribed by the state
superintendent. Each contract shall be signed by the teacher and by the president and secretary of
the county board and 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. 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 a bachelor's degree and the county board enter into a new contract of
employment, it shall be a continuing contract, subject to the following:
(1) Any teacher holding a valid certificate with less than a bachelor's degree who is employed
in a county beyond the three-year probationary period shall upon qualifying for the professional
certificate based upon a bachelor's degree, if reemployed, be granted continuing contract status; and
(2) 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 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 on the termination issue; or
(B) By written resignation of the teacher before that date, to initiate termination of a
continuing contract;
(2) The termination shall take effect at the close of the school year in which the contract is
terminated;
(3) The contract may be terminated at any time by mutual consent of the school board and
the teacher;
(4) This section 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) 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--one
thousand nine hundred eighty-five shall remain in full force and effect;
(6) 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 this subsection may not be included on the list. In case of dismissal 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. No teacher shall be
employed by the board until each qualified teacher upon the preferred list, in order, has been offered
the opportunity for reemployment in a position for which he or she is qualified, not including a
teacher who has accepted a teaching position elsewhere. The reemployment shall be upon a teacher's
preexisting continuing contract and 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 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 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
doing so by personal illness or other just cause or unless released from his or her contract by the
board, or who violates any lawful provision 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 the teacher on file for a period of one year
for 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 or request a leave of absence, 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 of the resignation or leave of absence and any notification received by a county board
shall automatically extend 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 on or before the first
day of February of the school year of their 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 the
following:
(1) The five hundred dollar payment for early notification is subject to appropriation by the
Legislature;
(2) 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 applicable teachers;
(3) Additionally, If funds are still insufficient to compensate all applicable teachers, the
priority of payment is for teachers who give written notice the earliest;
(4) This payment shall not be counted as part of the final average salary for the purpose of
calculating retirement; and
(5) If at least seventy percent of actively contributing members of the Teachers' Defined
Contribution Retirement System affirmatively elect to transfer to the State Teachers Retirement
system as provided in article seven-c, chapter eighteen of this code, any classroom teacher who elects
to make that transfer and gives written notice to the county board on or before the first day of July,
two thousand eight, of his or her retirement from employment with the board on the first day of
September, two thousand eight, shall be paid the five hundred dollars notwithstanding any other
provision of this subsection."
And by amending the title to read as follows:
Com. Sub. for H. B. 4496 - "A Bill to repeal §18-7C-13 and §18-7C-14 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated section
§11-21-12h; to amend and reenact §18-7A-14, §18-7A-17, §18-7A-18, §18-7A-34 and §18-7A-40
of said code; to amend and reenact §18-7B-7, §18-7B-7a and §18-7B-8 of said code; to amend and
reenact §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18-
7C-9, §18-7C-10, §18-7C-11 and §18-7C-12 of said code; to amend said code by adding thereto a
new section, designated section §18-7C-15; and amend and reenact §18A-2-2 of said code, all
relating to teachers retirement systems; allowing members of the Teachers' Defined Contribution
Retirement System to transfer to the State Teachers Retirement System under certain conditions;
income tax deduction for certain payments for obtaining credit; providing for contributions by
employers and members; computation of service credit; transfers from the Teacher Employers
Contribution Collection Account; loans to members; providing for transfer of higher education
employees who are members of the Teachers' Defined Contribution Retirement System; providing
for transfer of certain members returning to employment with participating employer; prohibiting
transfers to Teachers' Defined Contribution Retirement System; providing findings and purposes of
enactment; defining terms; establishing a required minimum percentage of actively contributing
members of the Teachers' Defined Contribution Retirement System electing to transfer for the
authorization of the transfers; providing for notice, education and record-keeping requirements;
providing for classes and seminars and access to schools; establishing the first day of July, two
thousand eight as the effective date for the transfer; providing for the transfer of service credit and
the payment of the actuarial reserve to obtain service credit; establishing the earliest date transferees
can retire; establishing processes for members of the Teachers' Defined Contribution Retirement
System to elect transfer; allowing the Consolidated Public Retirement Board to contract for
professional services; establishing a procedure to allow work site supervisors to collect the transfer
documents; providing for effect of transfers on domestic relations orders and vesting; providing
guaranteed minimum benefits; and providing for funding to offset any additional unfunded actuarially accrued liability."
On motion of Delegate DeLong, the House refused to concur in the Senate amendments and
requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4712, Supplementary appropriation to the Department of Transportation-Division of
Motor Vehicles.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4713, Expiring funds to the balance of the Department of Health and Human
Resources, Health Care Authority.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill
of the House of Delegates as follows:
H. B. 4714, Supplementary appropriation to the Department of Commerce, Department of
Education and the Arts-Division of Rehabilitation Services, Department of Military Affairs and
Public Safety-Fire Marshal.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 4, The H.E. "Homer" Lilly Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 35, The "Noah Stephens Bridge".
On motion of Delegate DeLong, the resolution was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the
following:
"Whereas, Noah Stephens was born February 29, 1924, the tenth child of Tolbert and Effie
Stephens, in Wayne County, West Virginia. Noah's father was a hardworking farmer and his mother
was a midwife who traveled the county helping mothers in childbirth; and
Whereas, Noah Stephens's work ethic and resiliency were forged early growing up as a
child in the Great Depression, and then put to the test in World War II when Japan attacked Pearl
Harbor on December 7, 1941; and
Whereas, Two months before graduating high school, Noah Stephens, after turning
eighteen, rode a bus to Columbus, enlisted in the Army, and earned a GED in bootcamp; and
Whereas, Noah Stephens was shipped out to England, eventually landing in France in June,
1944, for the Normandy D-Day invasion; and
Whereas, After the breakthrough in Normandy, Noah Stephens was assigned to the 94th
Infantry Division, 302 Regiment, Company L, Second Platoon in Le Havre, France, where he began
fighting his way into Germany; and
Whereas, On December 16, 1944, the Germans launched a surprise counter-offensive,
known as the Battle of the Bulge, which took the allies completely by surprise. The Germans hit the
center of the allied lines at the thinly held Ardennes with over a quarter of a million men; and
Whereas, Within eight days the Germans had cut deeply into allied territory. Noah and his
platoon were surrounded for eleven days. At times, the temperature dipped to minus thirty-five
degrees below zero. Their food supply dwindled to seven cans of C-rations. The men were forced to lay low, taking shelter in foxholes dug from the frozen solid earth; and
Whereas, On Friday, February 16, 1945, the Wayne County News published the following
account: "Mr. and Mrs. Tolbert Stevens (sic) have received word that their son, Pvt. Noah Stevens
(sic), has been missing in action in France since January 21. He had been in service about two
years"; and
Whereas, In fact, Noah and twenty other men had survived enemy fire, hunger and the bitter
cold, to cross the enemy lines and make it back to allied territory. The surviving twenty three men
were sent to a hospital in Birmingham, England, where eighteen of them required amputations due
to extreme frostbite. Noah was so badly frostbitten he was scheduled to have both feet amputated.
He refused, later healed, and became one of only five men in his entire platoon to not undergo an
amputation; and
Whereas, Believing their son, Noah Stephens, had been dead since January, his parents were
overjoyed to receive a letter from him in March relating his struggle and improbable survival; and
Whereas, On March 30, 1945, the Wayne County News ran an updated article on Noah
Stephens being awarded the Silver Star and Combat Infantry Badge for his gallantry in action in an
attack on the town of Tettington, Germany, with the 94th Infantry Division. Noah also received the
Purple Heart, the Good Conduct Medal, and three campaign stars for service in Northern France, the
Ardennes, and the Rhineland; and
Whereas, Upon his return from service in World War Two, Noah Stephens married his
sweetheart Lorene Russell and they started a family. Within a year their first son Lemuel was born,
followed by sons Gary and Delmas and a daughter named Shelia; and
Whereas, In order to provide for his family, Noah began working in the coal mines, then
worked in the factories of Detroit and Columbus, and finally attended trade school in Huntington,
on the GI Bill, to become a machinist; and
Whereas, Noah Stephens went on in life to become both a successful family man and
businessman, owning his own trucking and building companies, surviving hardship and family illness and, after more than fifty two years, is still married to, loving and caring for his wife Lorene;
and
Whereas, Imbued by their parents with a strong work ethic, Noah and Lorene's children
have all gone on to become successful entrepreneurs. It is fitting that they thought to honor their
father, who will be eighty four years old on February 29, 2008, by seeking to memorialize his
honorable life by naming the Dickson bridge after and dedicating it to him; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name the Dickson beam-span
bridge, crossing Twelve Pole Creek, on Route 152, Dickson, West Virginia, identification #50-152-
3839 (3542), the "Noah Stephens Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to erect appropriate
signage at the entryway of each end of the bridge; and, be it
Further Resolved, That the Clerk of the House of Delegates forward certified copies of this
resolution to the Commissioner of Highways, to the Wayne County Commission, and to the family
of Noah Stephens."
And by amending the title to read as follows:
H. C. R. 35 - "Requesting the Division of Highways to name the Dickson beam-span bridge,
crossing Twelve Pole Creek, on Route 152, Dickson, West Virginia, identification #50-152-3839
(3542), the 'Noah Stephens Bridge'."
On motion of Delegate DeLong, the House concurred in the Senate amendments.
The question now being on the adoption of the resolution (H. C. R. 35), the same was put and
prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 40, Requesting the United States Park Service to continue permitting hunting on
areas controlled by New River Gorge National River.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 51, The "William Arnett Wills Memorial Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 66, Honoring and commemorating 100 years of service at home and abroad by the
United States Army Reserve.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 67, The "Abishi Carrando Cunningham, Sr. Memorial Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 48 - "Requesting the Division of Highways name bridge number 30-65/5-1.47
(10525) in Puritan Mines, Mingo County, the 'Rev. Glen and Gladys Merritt Bridge'."
Whereas, Glen and Gladys Merritt are longtime residents of Puritan Mines, Mingo County;
and
Whereas, Glen and Gladys Merritt opened their home and hearts to over 200 foster children
during an eleven year span and Glen served as president of the Mingo County Foster Parents Association; and
Whereas, Glen and Gladys Merritt pastored the Christian Fellowship Church for more than
27 years and Glen continues to do so to this day; and
Whereas, Glen and Gladys Merritt spent more than fifty years serving the people of the
Mingo County as pastors, mentors, parent figures and more; and
Whereas, Glen Merritt is a veteran of the United States Army having served in World War
II; and
Whereas, Sadly, Gladys Merritt passed away Thursday, October 5, 2006; and
Whereas, It is fitting, to honor Glen and the late Gladys Merritt for their service to their
community, by naming bridge number 10525, in Puritan Mines, Mingo County, the "Rev. Glen and
Gladys Merritt Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 30-65/5-1.47
(10525) in Puritan Mines, Mingo County, the "Rev. Glen and Gladys Merritt Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Rev. Glen and Gladys Merritt Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and Glen Merritt.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 49 - "Requesting the Division of Highways name bridge number 30-119-2.67 (2806)
located in Mingo County at mile marker 20.5 the 'Private Lawrence Ooten Memorial Bridge'."
Whereas, Lawrence Ooten was born October 3, 1921, in Myrtle, Mingo County, son of the
late James and Leota Ooten; and
Whereas, Lawrence Ooten had four brothers, Andy, George, Frank and Johnny, and two
sisters, Thurs and Ella; and
Whereas, Lawrence Ooten served his country in World War II; and
Whereas, Lawrence Ooten was awarded the Silver Star and Purple Heart for bravery in the
field; and
Whereas, Sadly, Lawrence Ooten was killed in action on December 24, 1944, in
Luxembourg, Germany; and
Whereas, Lawrence Ooten was buried at the Ooten Cemetery located at Lee Dempsey Drive
in Myrtle, Mingo County; and
Whereas, It is fitting, to honor the memory of Lawrence Ooten, who died in the service of
his country, by naming bridge number 2806, located in Mingo County, at mile marker 20.5, the
"Private Lawrence Ooten Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 30-119-2.67
(2806) located in Mingo County at mile marker 20.5 the "Private Lawrence Ooten Memorial
Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Private Lawrence Ooten Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and the family of Lawrence Ooten.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 52 - "Requesting the Division of Highways name bridge number 25-24-4.31 (1818)
on Route 17 crossing the Big Paw Paw Creek in Marion County the 'Seaman 1st Class Clyde Richard Wilson Memorial Bridge'."
Whereas, Clyde Richard Wilson was born October 31, 1918, in Marion County; and
Whereas, Clyde Richard Wilson served his country by enlisting in the Navy; and
Whereas, Sadly, Clyde Richard Wilson lost his life in the service of his country at Pearl
Harbor when the battleship USS West Virginia was sunk by the Japanese; and
Whereas, Clyde Richard Wilson was raised in a home that no longer exists, which was
located across from this bridge; and
Whereas, It is fitting, to honor Clyde Richard Wilson for making the ultimate sacrifice to
his state and country, by naming bridge number 25-24-4.31 (1818), in Marion County, on Route 17,
crossing the Big Paw Paw Creek, the "Seaman 1st Class Clyde Richard Wilson Memorial Bridge";
therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 25-24-4.31 (1818)
on Route 17 crossing the Big Paw Paw Creek in Marion County the "Seaman 1st Class Clyde
Richard Wilson Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Seaman 1st Class Clyde Richard Wilson Memorial
Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and to the family of Clyde Richard
Wilson.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 58 - "Requesting the Division of Highways name bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County, the
'Memorial Bridge' in recognition of Johnathon David Higginbotham and others who have lost their
lives on U. S. Route 35 and State Route 62."
Whereas, Johnathon David Higginbotham was born on October 6, 1986; and
Whereas, Johnathon grew up in the Eleanor and Midway areas of Putnam County, but spent
a large part of his childhood in Pliny, West Virginia with his grandparents, Grandpa and Grandma
Wears; and
Whereas, Johnathon attended George Washington Elementary School, George Washington
Middle School and Buffalo High School; and
Whereas, At age 5, Johnathon started playing basketball; and
Whereas, He spent most of his spare time practicing basketball at the Eleanor Park or in the
Buffalo High School gymnasium; and
Whereas, Johnathon loved his family, friends, NASCAR, WVU football, WVU basketball,
North Carolina Tar Heels and Buffalo High School; and
Whereas, Johnathon traveled Route 35 a lot while visiting his grandparents or staying at his
Dad's, and the bridge saved him a lot of time when traveling from Pliny to school; and
Whereas, His friends would call him "Thun" and yell to Johnathon during basketball games
"Git-r-done, Thun"; and
Whereas, In the Spring of 2004, Johnathon and his family were so excited to learn that he
would be the starting guard for the fall season; and
Whereas, On June 3, 2004, Johnathon headed across the bridge to his dad's, and just a few
miles from the bridge, Johnathon, at age 17, was killed by a tractor-trailer; and
Whereas, It is fitting that this bridge be named "The Memorial Bridge" for Johnathon and
others who have lost their lives on U.S. Route 35 and State Route 62 to honor and memorialize their
passing, as well as their families and friends that continue their memory as they cross the bridge;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 40-869-0.27
(4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County,
the "Memorial Bridge" in recognition of Johnathon David Higginbotham and others who have lost
their lives on U. S. Route 35 and State Route; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed
signs identifying the bridge as the "Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and Johnathon David
Higginbotham's stepfather and mother, Jim and Vallery Withrow.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 63 - "Requesting the Division of Highways name bridge number 30-119-12.76
(2796) which crosses Trace Creek on Corridor G north of Belo, Mingo County, the 'R3C Fred
Mahon Memorial Bridge'."
Whereas, Radioman 3rd Class Fred Mahon was born in Mingo County, West Virginia, the
son of Rush Mahon. He enlisted in the United States Navy and was serving on board ship that was
sunk by enemy fire. The remains of Radioman 3rd Class Fred Mahon were never recovered and he
was declared dead by the Navy; and
Whereas, Radioman 3rd Class Fred Mahon left his father and other family members. The
VFW Post 8001 in Delbarton, West Virginia, was named the Fred Mahon VFW Post 8001 in his
honor; and
Whereas, Radioman 3rd Class Fred Mahon made the ultimate sacrifice for his country and
in the cause of freedom and it is fitting and proper that this bridge be named in his honor as a small token of appreciation and gratitude for the sacrifice Fred Mahon made; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 30-119-1.76
(2796) which crosses Trace Creek on Corridor G north of Belo, Mingo County, the "R3C Fred
Mahon Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed
signs identifying the bridge as the "R3C Fred Mahon Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and to the family of Radioman 3rd
Class Fred Mahon.
Leaves of Absence
At the request of Delegate DeLong, and by unanimous consent, leaves of absence for the day
were granted Delegates Frederick, Mahan and Tansill.
At 5:52 p.m., the House of Delegates adjourned until 11:00 a.m., Wednesday, March 5, 2008.