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Thursday, March 6, 2008

FIFTY-EIGHTH 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 Wednesday, March 5, 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:
S. C. R. 48, Requesting Division of Highways name bridge in Puritan Mines, Mingo County, "Rev. Glen and Gladys Merritt Bridge",
And reports the same back, with amendment, with the recommendation that it be adopted, as amended.
On motion for leave, a resolution was introduced (Originating in the Committee on Rules and reported with the recommendation that it be adopted), which was read by its title as follows:
H. C. R. 108 - "Requesting the Joint Committee on Government and Finance to study the Department of Health and Human Resources in its entirety to develop a better understanding of its financial resources and the flow of money into and from the department."
Whereas, The Legislature has experienced difficulty obtaining requested information in a timely manner or at all; and
Whereas, There has been no clearly understandable information provided to determine the number of open positions and the amount of time they have been open and the redirection of those funds to other areas by the Secretary; and
Whereas, There is a great need on the part of the Legislature to have a more complete understanding of the internal allocation of appropriated funds within the department and the areas that are currently underfunded and whether there is a more rational approach to the distribution of funds that would be to the benefit of the people of the state of West Virginia; and
Whereas, There is a strong desire on the part of the Legislature to work collaboratively to have a complete understanding of the budget and how and why decisions are made; and
Whereas, The Legislature has identified concerns about unmet needs of clients served within the department and significant savings being carried forward into future years while at the same time are being told that resources are not available to meet some needs of the citizens of the state; and
Whereas, The Legislature believes that as the appropriators of state funds there is a strong need to have a complete understanding of the DHHR budget; therefore, be it
Resolved by the West Virginia Legislature:
That the Joint Committee on Government and Finance is hereby requested to study the details of the department's budget with the intention of developing a better understanding of budgetary issues and a more collaborative process of working with the department to efficiently and effectively meet the needs of the citizens of the state; and, be it
Further Resolved, That the Joint Committee of 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.
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 28, Designating timber rattlesnake as state reptile,
S. C. R. 30, Requesting Division of Highways name section of Interstate 70 in Wheeling, Ohio County, "Doc and Chickie Williams Country Music Royal Couple Highway",
S. C. R. 37, Requesting Division of Highways name bridge in Diana, Webster County, "David Daniel Hamrick Memorial Bridge",
S. C. R. 38, Requesting Division of Highways name bridge in Trace Fork, Kanawha County, "Private Clinton Griffith and Staff Sergeant Jack Griffith Memorial Bridge",
S. C. R. 39, Requesting Division of Highways name bridge in Hemphill, McDowell County, "Charles Spencer Bridge",
S. C. R. 47, Requesting Division of Natural Resources rename Wallback Lake in Clay County "Sampson Lake",
S. C. R. 49, Requesting Division of Highways name bridge in Mingo County "Private Lawrence Ooten Memorial Bridge",
S. C. R. 52, Requesting Division of Highways name bridge in Marion County "Seaman 1st Class Clyde Richard Wilson Memorial Bridge",
S. C. R. 53, Requesting Joint Committee on Government and Finance study convention and visitors bureaus,
S. C. R. 63, Requesting Division of Highways name bridge near Belo, Mingo County, "R3C Fred Mahon Memorial Bridge",
S. C. R. 64, Commending Consortium for Internationalizing Higher Education in West Virginia,
H. C. R. 86, Requesting the Joint Committee on Government and Finance to study the responsibilities and duties of the county clerks of West Virginia,
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,
H. C. R. 102, Requesting the Joint Committee on Government and Finance to study the feasibility of providing a deduction from personal income tax for amounts paid for health insurance plans,
H. C. R. 103, The Frank Woodruff Buckles Freeway,
H. C. R. 104, Requesting that the Joint Committee on Government and Finance authorize the study of the feasibility of establishing a Silver Alert notification network for missing elderly citizens in West Virginia,
H. C. R. 106, The "Captain Benjamin David Tiffner Memorial Bridge",
And reports the same back with the recommendation that they each be adopted.
Messages from the Executive

Mr. Speaker, Mr. Thompson, presented the annual report of the State Police, in accordance with the provisions of the code; which was filed in the Clerk's Office.
The Speaker laid before the House of Delegates a Proclamation from His Excellency, the Governor, which was read by the Clerk as follows:
State of West Virginia

EXECUTIVE DEPARTMENT

Charleston

A P R O C L A M A T I O N

By the Governor

Whereas, the Constitution of West Virginia delineates the respective powers, duties and responsibilities of the three separate branches of government; and
Whereas, Article VI, Section 22 of the Constitution of West Virginia provides that the current regular session of the Legislature shall not exceed sixty calendar days computed from and including the second Wednesday of January; and
Whereas, Pursuant to Article VI, Section 22 of the Constitution of West Virginia, the 2008 regular session of the Legislature concludes on the eigth day of March, two thousand eight, at midnight; and
Whereas, Article VI, Section 51 of the Constitution of West Virginia sets forth the legal authority of the Governor and the Legislature relating to the preparation and enactment of the Budget Bill; and
Whereas, Subsection D, Article VI, Section 51 of the Constitution of West Virginia requires the Governor to issue a proclamation to extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon by the Legislature three days before the expiration of its regular session.
Now, Therefore, I, Joe Manchin, Governor of the State of West Virginia, do hereby issue this Proclamation, in accordance with Article VI, Section 51, Subsection D(8) of the Constitution of West Virginia, to extend this regular session of the Legislature for consideration of the Budget Bill for an additional period not to exceed three days; but no matters other than the Budget Bill shall be considered during this extension of the session, except a provision for the cost thereof.
In Witness Whereof, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.

(Insert Great Seal)
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the fifth day of March, in the year of our Lord, Two Thousand Eight, and in the One Hundred Forty-Fifth year of the State.


Joe Manchin,
Governor
By the Governor
Betty Ireland
Secretary of State

Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3056, Authorizing pharmacists to administer immunizations.
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 section and inserting in lieu thereof the following:
"ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.
§30-5-30. Administration of immunizations.
(a) A pharmacist licensed under the provisions of this article and meeting the requirements of this section may administer immunizations for the following to any person eighteen years of age or older: Influenza and Pneumonia.
(b) The Board of Pharmacy with the advice of the Board of Medicine and the Board of Osteopathy shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section. These rules shall provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved courses, in immunization administration. The courses must be based on the standards established for such courses by the Centers for Disease Control and Prevention in the public health service of the United States Department of Health and Human Services;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following an immunization;
(3) Prior to administration of immunizations, a pharmacist shall have completed a board approved immunization administration course and completed an American Red Cross or American Heart Association basic life-support training, and maintain certification in the same.
(4) Continuing education requirements for this area of practice;
(5) Reporting requirements for pharmacists administering immunizations to report to the primary care physician or other licensed health care provider as identified by the person receiving the immunization;
(6) Reporting requirements for pharmacists administering immunizations to report to the West Virginia Statewide Immunization Information (WVSII);
(7) That a pharmacist may not delegate the authority to administer immunizations to any other person; and
(8) Any other provisions necessary to implement the provisions of this section.
(c) The Board of Pharmacy, the Board of Medicine and the Board of Osteopathy may propose joint rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code to permit pharmacists licensed under the provisions of this article to administer other immunizations such as Hepatitis A, Hepatitis B, Herpes Zoster and Tetanus. These rules, if promulgated, shall provide at a minimum the same provisions contained in subsections (b)(1) through (b)(8) of this section."
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. 327), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Long.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3056) 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 a title amendment, a bill of the House of Delegates as follows:
H. B. 4019, Relating to civil actions filed in the courts of the state.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
H. B. 4019 - "A Bill to amend and reenact §56-1-1a of the Code of West Virginia, 1931, as amended, relating to venue in civil actions; codifying certain portions of the common law doctrine of forum non conveniens; and required judicial considerations."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate title 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. 328), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4019) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4072, Clarifying that the Board of Registration for Professional Engineers is subject to a regulatory board review.
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 section and inserting in lieu thereof the following:
"ARTICLE 13. ENGINEERS.
§30-13-25. Required regulatory board review.

The Board of Registration for Professional Engineers is subject to a regulatory board review, as required in the provisions of article ten, chapter four of this code."
And,
By amending the title of the bill to read as follows:
H. B. 4072 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-13-25, relating to regulatory board review of the Board of Registration for Professional Engineers."
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. 329), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4072) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4073, Clarifying that the Board of Examinations in Counseling is subject to a regulatory board review.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 31. LICENSED PROFESSIONAL COUNSELORS.
§30-31-15. Required regulatory board review.

The West Virginia Board of Examiners in Counseling is subject to a regulatory board review, as required in the provisions of article ten, chapter four of this code."
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. 330), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4073) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4085, Relating to regulatory review of the West Virginia Acupuncture Board.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 36. ACUPUNCTURISTS.
§30-36-20. Required regulatory board review.
The West Virginia Acupuncture Board is subject to a regulatory board review, as required in the provisions of article ten, chapter four of this code."
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. 331), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4085) 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, without amendment, a bill of the House of Delegates as follows:
H. B. 4141, Providing that written status reports on civil actions brought against state government agencies are required only as requested by the President of the Senate and Speaker of the House.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4209, Authorizing the Department of Administration to promulgate legislative rules.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.

§64-1-1. Legislative authorization.

Under the provisions of article three, chapter twenty-nine-a of the Code of West Virginia, the Legislature expressly authorizes the promulgation of the rules described in articles two through eleven, inclusive, of this chapter, subject only to the limitations set forth with respect to each such rule in the section or sections of this chapter authorizing its promulgation. Legislative rules promulgated pursuant to the provisions of articles one through eleven, inclusive, of this chapter in effect at the effective date of this section shall continue in full force and effect until reauthorized in this chapter by legislative enactment or until amended by emergency rule pursuant to the provisions of article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

§64-2-1. Department of Administration.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section eleven, article ten, chapter five-a, of this code, modified by the Department of Administration to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the second day of November, two thousand seven, relating to the Department of Administration (leasing of space and acquisition of real property on behalf of state spending units, 148 CSR 19), is authorized with the following amendment:
On page four, subdivision 5.3.b, at the beginning of the second line of the subdivision, by striking the words "limited liability company".
On page four, following subsection 5.3.b, by inserting a new subsection 5.3.c as follows and relettering the remaining subdivisions:
"5.3.c. When the lessor is a limited iability company which is member managed, any member authorized to bind the limited liability company shall execute the lease. When the lessor is a limited liability company which is manager managed, the manager shall execute the lease on behalf of the limited liability company."
On page six, subdivision 9.8.a, at the beginning of the second line of the subdivision, by striking the words "limited liability company"; and
On page six, following subdivision 9.8.a, by inserting a new subdivision 9.8.a as follows and relettering the remaining subdivisions:
"9.8.a. When the seller is a limited liability company which is member managed, any member authorized to bind the limited liability company shall execute the contract. When the seller is a limited liability company which is manager managed, the manager shall execute the contract on behalf of the limited liability company.".
(b) 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 three, chapter five-a, of this code, relating to the Department of Administration (leasing space on behalf of state spending units, 148 CSR 2), is authorized.
(c) 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 five-a, of this code, modified by the Department of Administration to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the twenty-first day of December, two thousand seven, relating to the Department of Administration (controlling the Public Land Corporation's sale, lease, exchange or transfer of lands and minerals, 148 CSR 20), is authorized with the following amendment:
On page one, subsection 2.4, following the words "appraisal made by" by striking the remainder of the subsection and inserting in lieu thereof the words "the Real Estate Division using the principles contained in the current Uniform Appraisal Standards for Federal Land Acquisitions published under the auspices of the Interagency Land Acquisition Conference" and a period;
On page one, subsection 2.5, by striking the subsection in its entirety and renumbering the remaining subsections;
On page one, subsection 2.7, following the words "Public Land Corporation", by inserting the words "or corporation";
On page one, subsection 2.8, following the word "be" by striking the word "the";
On page one, subsection 2.8, following the word "appointed" by inserting the words "by the"; and
On page one, subdivision 3.1.a, at the end of the second line of the subdivision, by striking the word "independent";
On page one, subdivision 3.1.b, on the sixth line of the subdivision, following words "shall be", by striking the word "available" and inserting in lieu thereof the words "made available by the corporation".
§64-2-2. Division of personnel.
(a) The legislative rule filed in the State Register on the thirty-first day of July, one thousand nine hundred ninety-five, authorized under the authority of section twenty-seven, article six, chapter twenty-nine, of this code, authorized for promulgation by the Legislature on the ninth day of March, one thousand nine hundred ninety-four and refiled in the State Register on the twentieth day of May, one thousand nine hundred ninety-six, relating to the division of personnel (leave donation program, 143 CSR 2), is authorized with the following amendments:
On page one, section two, following subsection 2.2. by adding a new subsection 2.3. to read as follows:
2.3. Banking or banked donated leave means annual leave in excess of forty (40) days which has been accumulated as of the last day of December in any year by any employee and contributed to the donated leave program;
And renumbering the remaining subsections in section 2;
And,
On page three, section five, following subdivision 5.1.f. by adding a new subdivision 1.g. to read as follows:
g. Any employee may contribute accrued annual leave which is in excess of forty (40) days at the end of the year to a donated leave bank maintained by each appointing authority. Banked donated leave must be used prior to accepting other leave donations for an eligible employee. Banked leave expires if not donated within six (6) months of being banked.
§64-2-3. Consolidated Public Retirement Board.
(a) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (general provisions, 162 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (benefit determination and appeal, 162 CSR 2), is authorized with the following:
On page one, subsection 2.3, by striking out the language of the subsection and inserting in lieu thereof the following: "After a member receives either a lump sum distribution of contributions or the initial payment of a retirement benefit from the retirement system in which the member was or is a participant, the member is not eligible to apply for or receive disability retirement benefits.";
On page one, subsection 3.1, line twelve, following the word "physician", by inserting the word "licensed".
On page four, subsection 6.3, in the last sentence of the subsection, by striking out the words "Consolidated Public Retirement".
On page four, subsection 6.3, in the last line of the subsection, following the word "Board", by inserting the word "staff".
(c) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (Teachers' Defined Contribution System, 162 CSR 3), is authorized.
(d) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (Teachers' Retirement System, 162 CSR 4), is authorized with the following amendment:
On page seven, subsection 8.4, line three, following the words "calendar month", by striking out the words "being reported" and inserting in lieu thereof the words "for which the payment is made".
(e) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the second day of November, two thousand seven, relating to the Consolidated Public Retirement Board (Public Employees Retirement System, 162 CSR 5), is authorized.
(f) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (refund, reinstatement, retroactive service and loan interest factors, 162 CSR 7), is authorized with the following amendment:
On page five, subsection 6.3, line three, following the words "calendar month", by striking out the words "being reported" and inserting in lieu thereof the words "for which the payment is made".
(g) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fourth day of January, two thousand eight, relating to the Consolidated Public Retirement Board (West Virginia State Police, 162 CSR 9), is authorized.
(h) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (Deputy Sheriff Retirement System, 162 CSR 10), is authorized.
§64-9-4. Ethics Commission.
The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand seven, authorized under the authority of section two, article two, chapter six-b, of this code, modified by the Ethics Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fifteenth day of January, two thousand eight, relating to the Ethics Commission (solicitation and receipt of gifts and charitable contributions by public employees and officials, 158 CSR 7), is authorized with the following amendments:
On page six, section six, by deleting subsections 6.8 and 6.9 in their entirety and inserting in lieu thereof the following:
"6.8. Fund-raising activities based on an exchange of value are not gift solicitations and are permissible."
On page six, section six by renumbering the remaining subsection;
On page six, section seven, subdivision 7.1.a., after the word "months" by adding the following:
"This subsection does not apply to purely law enforcement agencies, officials or employees who do not actually regulate or exercise regulatory control over other persons but merely enforce existing laws and rules as to all applicable persons";
On page six, section seven, subsection 7.2., after the word "agency" by adding the following:
"This subsection does not apply to purely law enforcement agencies, officials or employees who do not actually regulate or exercise regulatory control over other persons but merely enforce existing laws and rules as to all applicable persons";
On page six, section seven, subsection 7.4, by deleting the words "or infer";
On pages six and seven, section seven by deleting subsections 7.5 and 7.6 in their entirety;
On page seven, section eight, subsection 8.3, by deleting the subsection in its entirety and inserting in lieu thereof the following:
"8.3 Law enforcement officers may not solicit for charity while in uniform except as otherwise provided for in this rule, but may show identification upon request.";
On page seven, section eight, subsection 8.4, by deleting the comma and the words "employees or members of an association of law enforcement officers" and inserting in lieu thereof the following words "or employees";
On pages seven and eight, section eight, subsection 8.5, by deleting the subsection in its entirety and inserting in lieu thereof the following:
"Law enforcement officers or associations composed of law enforcement officers may not provide signs, stickers, decals or other items of display by individual donors showing whether or not a donation has been made on account of any charitable contribution solicited on behalf of law enforcement officers or their association, unless the signs, stickers, decals or other items of display contain the following disclaimer: 'The holder of this item is not entitled to any special treatment.'; Provided, That certificates, plaques or other items of display which are not intended for display on motor vehicles may be distributed to donors without the inclusion of the disclaimer; Provided, However, That an association may provide to its members who are currently serving as law enforcement officers, or who previously served as law enforcement officers, a sign, sticker, decal or other item of display, including those items intended for display in a motor vehicle, which demonstrate that a present or former law enforcement officer is a member of an association or fraternal group primarily composed of law enforcement officers, without the inclusion of the disclaimer.";
On page eight, section eight, subsection 8.7, by deleting the subsection in its entirety and inserting in lieu thereof the following:
"8.7 Law enforcement officers may not pick up a donation while in uniform except as otherwise provider for in this rule."
On page eight, section eight, subsection 8.8, by deleting the words "such as a sale of baked goods or a car wash".
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, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4244, Authorizing the Department of Transportation to promulgate legislative rules.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 8. AUTHORIZATION FOR THE DEPARTMENT OF TRANSPORTATION TO PROMULGATE LEGISLATIVE RULES.

§64-8-1. Division of Highways.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section eight, article two-a, chapter seventeen, of this code, modified by the Commissioner of Highways to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-sixth day of December, two thousand seven, relating to the Commissioner of Highways (construction and reconstruction of state roads, 157 CSR 3), is authorized.
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section eight, article two-a, chapter seventeen, of this code, relating to the Commissioner of Highways (traffic and safety rules, 157 CSR 5), is authorized.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section eight, article two-a, chapter seventeen, of this code, relating to the Commissioner of Highways (use of state road rights of way and adjacent areas, 157 CSR 6), is authorized with the following amendment:
On page ten, paragraph 3.8.d.3, after the words "W. Va. Code", by striking the citation "§17- 4-17b(d)(4)" and inserting in lieu thereof the following: "§17-4-17b(d)".
(d) 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, article eighteen, chapter twenty-two, of this code, relating to the Commissioner of Highways (transportation of hazardous wastes upon the roads and highways, 157 CSR 7), is authorized.
§64-8-2. Division of Motor Vehicles.
(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 five, article two, chapter seventeen-b, of this code, modified by the Division of Motor Vehicles 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 Division of Motor Vehicles (examination and issuance of driver's licences, 91 CSR 4), is authorized with the following amendment:
On page three, paragraph 3.9, after the words "address of the applicant's", by striking the word "principle" and inserting in lieu thereof the word "principal";
And,
On page three, by striking out subdivision 3.9.a. in its entirety, and inserting in lieu thereof the following:
"3.9.a. An applicant who can verify that his or her principal residence is physically located in West Virginia but who has no fixed or designated address to which mail can be delivered by the United States Postal Service and who must use another address for purposes of receiving mail;".
(b) The legislative rule filed in the State Register on the first day of November, two thousand seven, authorized under the authority of section twelve, article two-a, chapter seventeen-b, of this code, relating to the Division of Motor Vehicles (the disclosure of information from the files of Division of Motor Vehicles, 91 CSR 8), is authorized."
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. 332), and there were--yeas 89, nays 7, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Lane, J. Miller, Sobonya and Walters.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4244) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 333), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4244) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4423, Ensuring that beer kegs are not considered scrap metal unless received directly from a beer manufacturer.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section forty-nine, lines sixty through sixty-two, by striking out the words "or the seller provides a receipt of purchase or other proof of lawful ownership".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4423 - "A Bill to amend and reenact §61-3-49 of the Code of West Virginia, 1931, as amended, relating to providing that beer kegs are not considered scrap metal unless the purchaser received the keg or keg parts directly from a beer manufacturer or its authorized representative."
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. 334), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4423) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4628, Providing a tax credit for new job creation by certain taxpayers.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.
§11-13Q-22. Credit available for taxpayers which do not satisfy the new jobs percentage requirement.

(a) Notwithstanding any provision of this article to the contrary, a taxpayer engaged in one or more of the industries or business activities specified in section nineteen of this article which does not satisfy the new jobs percentage requirement prescribed in subsection (c), section nine, of this article, or if the taxpayer is a small business as defined in section ten of this article, does not create at least ten new jobs within twelve months after placing qualified investment into service as required by section ten of this article, but which otherwise fulfills the requirements prescribed in this article, is permitted to claim a credit against the taxes specified in section seven of this article in the order so specified that are attributable to and the consequence of the taxpayer's business operations in this state, which result in the creation of net new jobs. Credit under this section is allowed in the amount of three thousand dollars per year, per new job created and filled by a new employee; as those terms are defined in section three of this article for a period of five consecutive years beginning in the tax year when the new employee is first hired. In no case may the number of new employees determined for purposes of this section exceed the total net increase in the taxpayer's employment in this state. Credit allowed under this section shall be allowed beginning in the tax year when the new employee is first hired: Provided, That each new job:
(1) Pays at least thirty-two thousand dollars annually;
(2) Provides health insurance and may offer benefits including child care, retirement or other benefits; and
(3) Is a full-time, permanent position, as those terms are defined in section three, of this article.
Jobs that pay less than thirty-two thousand dollars annually, or that pay that salary but do not also provide benefits in addition to the salary, do not qualify for the credit authorized by this section. Jobs that are less than full-time, permanent positions do not qualify for the credit authorized by this section.
(b) Unused credit remaining in any tax year after application against the taxes specified in section seven of this article is forfeited and does not carry forward to any succeeding tax year and does not carry back to a prior tax year.
(c) The tax credit authorized by this section may be taken in addition to any credits allowable under articles thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-j, thirteen-r or thirteen-s of this chapter.
(d) Reduction in number of employees credit forfeiture - If during the year when a new job was created for which credit was granted under this section or during any of the next succeeding four tax years thereafter, net jobs that are attributable to and the consequence of the taxpayer's business operations in this state, decrease, counting both new jobs for which credit was granted under this section and preexisting jobs, then the total amount of credit to which the taxpayer is entitled under this section shall be decreased and forfeited in the amount of three thousand dollars for each net job lost."
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. 335), and there were--yeas 84, nays 12, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Blair, Carmichael, Duke, Higgins, Iaquinta, Miley, J. Miller, Palumbo, Porter, Schoen and Sumner.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4628) passed.
Delegate DeLong moved that the bill take effect January 1, 2009.
On this question, the yeas and nays were taken (Roll No. 336), and there were--yeas 93, nays 3, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Duke, Schoen and Sumner.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4628) takes effect January 1, 2009.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Resolutions Introduced

Delegates White and Kominar offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 107 - "Requesting the Division of Highways name bridge number 30-13/2-0.02 (5935) at the Right Hand Fork of Gilbert Creek in Mingo County the 'Wilburn and Effie Cline Memorial Bridge'."
Whereas, Wilburn and Effie Cline were lifelong residents of Gilbert, Mingo County; and
Whereas, The town of Gilbert was a significant trade area for local residents; and
Whereas, Wilburn and Effie Cline owned and operated a country store in Gilbert most of their adult lives; and
Whereas, Wilburn and Effie Cline donated to the State of West Virginia the land needed to build the bridge at Right Hand Fork of Gilbert Creek; and
Whereas, It is fitting that this bridge be named for Wilburn and Effie Cline who represented the best qualities of citizens in this state by their industry, citizenship and dedication to meeting the needs of friends, neighbors and patrons at their country store; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 30- 13/2-0.02 (5935) at the Right Hand Fork of Gilbert Creek in Mingo County the "Wilburn and Effie Cline Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and be placed signs identifying the bridge as the "Wilburn and Effie Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation, to the Mayor of Gilbert, and to any surviving members of Wilburn and Effie Cline.
Delegates Caputo, Longstreth and Manchin offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 37 - "Designating the month of March, as 'National Athletic Training Month'."
Whereas, Certified athletic trainers have a long history of providing quality health care for athletes and those engaged in physical activity based on specific task, knowledge and skills acquired through their nationally regulated educational processes; and
Whereas, Certified athletic trainers help in the prevention of injuries; and
Whereas, Certified athletic trainers provide recognition, evaluation and aggressive treatment for injuries that are sustained during physical activity; and
Whereas, Certified athletic trainers provide rehabilitation for injuries to help get people back to their sports, workouts and daily routines faster than ever before; and
Whereas, Certified athletic trainers provide health care administration, education and guidance; and
Whereas, The National Athletic Trainers' Association represents and supports 30,000 members of the athletic training profession employed in professional sports; colleges and universities; high schools; clinic and hospitals; corporate and industrial settings; and military branches; and
Whereas, Leading organizations concerned with athletic training and health care have joined together in a common desire to raise public awareness of the importance of the athletic training profession and to emphasize the importance of quality health care within the aforementioned settings; and
Whereas, Such an effort will improve health care for athletes and those engaged in physical activity and promote certified athletic trainers as allied health professionals; and
Whereas, The people of West Virginia should learn more about the importance of athletic training and all the help it can give to those injured during physical activity; therefore, be it
Resolved by the House of Delegates:
The month of March, is designated "National Athletic Training Month"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to John Higgins, David Pryor and the National Athletic Trainers' Association.
Delegates Webster, Azinger, Brown, Burdiss, Hamilton, Lane, Long, Miley, Moore, Overington, Proudfoot, Schadler, Shook, Sobonya, Tabb, Varner, Anderson, Argento, Border, Canterbury, Cowles, Ellis, Evans, Fleischauer, Hutchins, Martin, Michael, Moye, Pethtel, Rodighiero, Schoen, Shaver, Spencer, Stagger, Stephens, Swartzmiller, Talbott, Wells, Wysong and Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 38 - "Recognizing the unique and positive role AmberView provides law enforcement in returning children to the safety of their families."
Whereas, AmberView was launched and began development in Fairmont, West Virginia, on April 1, 2004; and
Whereas, AmberView provides an up-to-date digital image of a missing or abducted child to law enforcement and the news media within minutes of an official Amber Alert; and
Whereas, This biometric-based technology is now available to children ages three through seventeen across West Virginia; and
Whereas, Fifty-four West Virginia county school boards have adopted this voluntary program; and
Whereas, Each year on School Picture Day, a child's digital image is taken and stored in a secure database, accessible only by the West Virginia State Police's Amber Alert coordinator; and
Whereas, In the event of an Amber Alert, AmberView provides law enforcement, news media and citizens, with a recent image of the missing child within minutes; and
Whereas, AmberView has been proven effective, as Harrison County law-enforcement officers recently identified and returned a missing child using the AmberView photo; and
Whereas, The police were able to obtain the missing child's AmberView photo within eight minutes of their request; and
Whereas, AmberView has brought far-reaching acclaim to West Virginia-developed technology, having been profiled on NBC's "Today Show", ABC's "Good Morning, America", and in other major broadcasts and publications; and
Whereas, AmberView is sponsored by the National Institute of Justice, embraced by the U.S. Department of Justice, and administered by the West Virginia High Technology Consortium Foundation; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates hereby recognizes the extraordinary and exemplary contributions and national potential of AmberView in working with West Virginia law enforcement in returning children to the safety of their families; and, be it
Further Resolved, That the Clerk of the House of Delegates forward certified copies of this resolution to Robert Chico, Program Manager of AmberView, Carren Whipkey, AmberView Project Manager, James Estep, President and CEO of the West Virginia High Technology Consortium Foundation and Bradley DeRoos, Vice President of the Scientific Research Group.
Special Calendar

Unfinished Business

H. R. 33, Requesting the Speaker of the House of Delegates to continue and reappoint the Select Committee on Senior Citizen Issues beyond the 78th Legislature; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
H. R. 34, Urging the West Virginia Bureau of Senior Services to allow only county aging programs to administer the Lighthouse program; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
H. C. R. 56, Encouraging assistance from private employers in an effort to increase poll workers participants in West Virginia; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 84, Requesting that the Joint Committee on Government and Finance authorize the study to improve the state's efforts to better promote the availability of safe drinking water projects funding; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 99, Requesting the Joint Committee on Government and Finance to make a study on a funding mechanism to increase the salaries of teachers and school service personnel; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

Com. Sub. for S. B. 201, Providing terms for certain retirement benefits disqualification; 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. 337), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 201) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 207, Relating to Deputy Sheriff Retirement System Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 338), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 207) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 208, Clarifying all Consolidated Public Retirement Board systems are included in employer pick-up provisions; 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. 339), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Ennis.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 208) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 227, Relating to State Teachers Retirement System; 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. 340), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 227) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 239, Creating Senior Citizen Property Tax Payment Deferment Act; on third reading, coming up in regular order, was, on motion of Delegate DeLong, deferred.
S. B. 253, Defining "survey foot"; 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. 341), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 253) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 349, Authorizing Miscellaneous Boards and Agencies promulgate legislative rules; on third reading, coming up in regular order, was read a third time.
Delegate Schadler requested to be excused from voting on the passage of Com. Sub. for S. B. 349 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 342), and there were--yeas 84, nays 12, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Border, Ireland, Lane, C. Miller, J. Miller,Schoen, Sobonya, Sumner and Walters.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 349) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 343), and there were--yeas 92, nays 4, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Ireland, C. Miller, Schoen and Walters.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
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. 349) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 466, Authorizing Water Development Authority to administer Dam Safety Rehabilitation Revolving Fund Loan Program; 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. 344), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Kessler.
Absent And Not Voting: Mahan, Marshall, Moore, Stemple and Yost.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 466) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Yost announced that he was temporarily absent on today when the vote was taken on Roll No. 344 , and that had he been present, he would have voted "Yea" thereon.
S. B. 541, Continuing personal income tax adjustment to certain retirees' gross income; on third reading, coming up in regular order, was read a third time.
Delegate Yost requested to be excused from voting on the passage of S. B. 541 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 345), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 541) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 641, Creating Water Resources Protection and Management Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 346), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Ireland and Romine.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 641) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 657, Creating Alcohol and Drug-Free Workplace Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 347), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 657) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 657 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-1D-1, §21-1D-2, §21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-7a, §21-1D-8 and §21-1D-9, all relating to the West Virginia Alcohol and Drug-Free Workplace Act; providing definitions; providing a statement of policy; requiring public improvement contractors to have and implement a drug-free workplace program that requires drug and alcohol testing; provides standards and protocols for testing; provides for assistance for employees; requiring a drug-free workplace policy to be posted at a public improvement construction site; requiring drug-free workplace records and contents be open for inspection; providing penalties; providing for confidentiality; and providing that this article shall only apply to contracts awarded after this article takes effect."
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 348), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Mahan, Marshall, Moore and Stemple.
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. 657) takes effect July 1, 2008.
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. 751, Relating to Surface Coal Mining and Reclamation Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 349), and there were--yeas 93, nays 3, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Porter and Schoen.
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 751) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 350), and there were--yeas 94, nays 2, absent and not voting 4, with the absent and not voting being as follows:
Nays: Porter and Schoen
Absent And Not Voting: Beach, Mahan, Marshall, Moore and Stemple.
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. 751) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 778, Relating to veterans' benefits; 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. 351), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B 778) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 12:00 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 5:30 p.m., and reconvened at that time.
* * * * * * * *

Evening Session

* * * * * * * *

S. B. 340, Requiring consumers' notification of information security breach, having been passed in earlier proceedings and still being in possession of the Clerk, was, on motion of Delegate DeLong, taken up for further consideration.
At the request of Delegate DeLong and by unanimous consent, the House of Delegates reconsidered the amendment to the title of the bill.
At the request of the same Gentleman, and by unanimous consent, the title amendment offered by the Committee on the Judiciary was withdrawn.
On motion of Delegate Webster, the title of the bill was then amended to read as follows:
Com. Sub. for S. B. 340 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-2A-101, §46A-2A-102, §46A-2A-103, §46A-2A-104 and §46A-2A-105, all relating to the unauthorized access or acquisition of certain computerized data which compromises the security, confidentiality or integrity of personal information; requiring notification of a breach of the security of a system compromising personal information; permitting internal notification procedures; non-compliance; enforcement by the Attorney General; civil penalties; violations by a licensed financial institutions; and applicability."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3065, Relating to making false reports of child abuse, sexual abuse and domestic violence.
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 section and inserting in lieu thereof the following:
"CHAPTER 48. DOMESTIC RELATIONS


ARTICLE 9. CUSTODY OF CHILDREN
Part 2 - Parenting Plans

§48-9-209. Parenting plan; limiting factors.
(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
(1) Has abused, neglected or abandoned a child, as defined by state law;
(2) Has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;
(3) Has committed domestic violence, as defined in section 27-202;
(4) Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member, pending adjudication of the facts underlying that belief; or
(5) Has repeatedly made fraudulent reports of domestic violence or child abuse.
(b) If a parent is found to have engaged in any activity specified by subsection (a) of this section, the court shall impose limits that are reasonably calculated to protect the child or child's parent from harm. The limitations that the court shall consider include, but are not limited to:
(1) An adjustment of the custodial responsibility of the parents, including but not limited to:
(A) Increased parenting time with the child to make up for any parenting time the other parent lost as a result of the proscribed activity;
(B) An additional allocation of parenting time in order to repair any adverse effect upon the relationship between the child and the other parent resulting from the proscribed activity; or
(C)
The allocation of exclusive custodial responsibility to one of them;
(2) Supervision of the custodial time between a parent and the child;
(3) Exchange of the child between parents through an intermediary, or in a protected setting;
(4) Restraints on the parent from communication with or proximity to the other parent or the child;
(5) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in the twenty-four hour period immediately preceding such exercise;
(6) Denial of overnight custodial responsibility;
(7) Restrictions on the presence of specific persons while the parent is with the child;
(8) A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising custodial responsibility or to secure other performance required by the court;
(9) A requirement that the parent complete a program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor; or
(10) Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child's parent or any person whose safety immediately affects the child's welfare.
(c) If a parent is found to have engaged in any activity specified in subsection (a) of this section, the court may not allocate custodial responsibility or decision-making responsibility to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under subsection (b) of this section. The parent found to have engaged in the behavior specified in subsection (a) of this section has the burden of proving that an allocation of custodial responsibility or decision-making responsibility to that parent will not endanger the child or the other parent.
(d) If the court determines, based on the investigation described in part three of this article or other evidence presented to it, that an accusation of child abuse or neglect, or domestic violence made during a child custody proceeding is false and the parent making the accusation knew it to be false at the time the accusation was made, the court may order reimbursement to be paid by the person making the accusations of costs resulting from defending against the accusations. Such reimbursement may not exceed the actual reasonable costs incurred by the accused party as a result of defending against the accusation and reasonable attorney's fees incurred.
(e) (1) A parent who believes he or she is the subject of activities by the other parent described in subdivision (5) of subsection (a), may move the court pursuant to subdivision (4), subsection (b), section one, article seven, chapter forty-nine of this code for the Department of Health and Human Resources to disclose whether the other parent was the source of the allegation and, if so, whether the Department found the report to be:
(A) Substantiated;
(B) Unsubstantiated;
(C) Inconclusive; or
(D) Still under investigation.
(2) If the court grants a motion pursuant to this subsection, disclosure by the Department of Health and Human Resources shall be in camera. The court may disclose to the parties information received from the Department only if it has reason to believe a parent knowingly made a false report.
Part 3 - Fact Finding.

§48-9-301a. Child abuse allegations.

(a) If allegations of child abuse are made during a child custody proceeding and the court has concerns regarding the child's safety, the court may take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child's safety until an investigation can be completed. Nothing in this subsection shall affect the applicability of sections two and nine of article six-A, chapter forty-nine of this Code.
(b) If allegations of child abuse are made during a child custody proceeding, the court may request that the local child protective service conduct an investigation of the allegations pursuant to article six-A, chapter forty-nine of this Code. Upon completion of the investigation, the agency shall report its findings to the court.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT

ARTICLE 6. CRIMES AGAINST THE PEACE
§61-6-25. Falsely reporting child abuse.

(a) Any person who knowingly and intentionally reports or causes to be reported to a law enforcement officer, child protective service worker or judicial officer that another has committed child sexual abuse, child abuse or neglect as such are defined in section three, article one, chapter forty-nine of this code who when doing so knows or has reason to know such accusation is false and who does it with the intent to influence a child custody decision shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than one thousand dollars, sentenced to not more than sixty hours of court-approved community service, or both.
(b) In addition to any other sanctions imposed by the provisions of this section, any person convicted of a violation of this section shall be required to attend and complete a court-approved parenting class."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3065 - "A Bill to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §48-9- 301a; and to amend said code by adding thereto a new section, designated §61-6-25, all relating false allegations of child abuse and/or neglect; relief from false allegations on allocation of custodial responsibility under a parenting plan; imposition of reasonable costs and reasonable attorney's fees for defending against false allegations; request for disclosure of source of allegations by Department of Health and Human Resources; investigation of allegations of child sexual abuse by family courts; and new misdemeanor offense for falsely reporting child abuse."
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. 352), and there were--yeas 85, nays 10, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Brown, Campbell, Canterbury, Doyle, Fragale, Klempa, Perdue, Porter, Schoen and Spencer.
Absent And Not Voting: Mahan, Marshall, Moore, Shook and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3065) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Schoen requested that she be recorded as having voted "Nay" on the motion to concur in the Senate amendments regarding Com. Sub. for H. B. 3065.
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. 4079, Relating to Professional Employer Organizations.
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. 4082, Relating to the Public Employees Retirement System.
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. 4120, Prohibiting inclusion of specific dollar amounts or figures related to damages in complaints for personal injury or wrongful death actions.
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. 4144, Relating to physician assistants and updating language to conform to national changes.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page nine, section sixteen, line one hundred twenty-four, by striking out the words "National Board of Medical Examiners on behalf of the".
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. 353), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore, Shook and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4144) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4255, Authorizing the Department of Commerce to promulgate legislative rules.
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 section and inserting in lieu thereof the following:
"ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE LEGISLATIVE RULES.
§64-10-1. Division of Labor.
(a) 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, article three, chapter twenty-one, of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Division of Labor (steam boiler inspection, 42 CSR 3), is authorized.
(b) 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 one-b, chapter twenty-one, of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Division of Labor (verifying the legal employment status of workers, 42 CSR 31), is authorized with the following amendment:
On page one, subsection 3.8., after the word "employer", by striking out the words "as defined in this rule".
On page two, section 4, by striking out the subsection designation "4.1.".
On page two, section 4 by striking out subsection 4.2 in its entirety.
On page two, subsection 5.1., by striking out the word "have" and inserting in lieu thereof the word "maintain".
On page three, subsection 6.5., by striking out subdivision 6.5.a. in its entirety and by striking out the subdivision designation "b.".
On page three, subsection 6.6. by striking out the subdivision designation "a." and by striking out subdivision 6.6.b. in its entirety.
On pages three and four, by striking out subsection 7.1. in its entirety and inserting in lieu thereof the following:
"7.1. The Commissioner may ask the Bureau of Employment programs, the Division of Motor Vehicles or any other state agency for assistance in confirming the validity of an employee's legal status or authorization to work."
And,
On page four, by striking out section 8 in its entirety.
(c) 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 fourteen, chapter twenty-one, of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Division of Labor (supervision of plumbing work, 42 CSR 32), is authorized with the following amendment:
On page two, subsection 7.2, at the beginning of the first sentence in the subsection, by inserting the words "Subject to the provisions of subsection 6.2 of this rule,";
On page three, subsection 8.1, at the end of the subsection, by inserting the words: "The Commissioner may, on his or her own motion, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee. The Commissioner shall, upon the written complaint of any person, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee. The Commissioner may provide a form for this purpose, but a complaint may be filed in any form. The Commissioner shall provide a copy of the complaint to the licensee."
On page four, section 9, by striking out the subsection in its entirety and inserting in lieu thereof a new section 9, to read as follows:
"§42-32-9. Cease and desist orders; penalties; appeals.
9.1 The Commissioner may issue a cease and desist order to any person performing or offering to perform plumbing work without a license issued by the Commissioner. Any person continuing to engage in plumbing work after the issuance of a cease and desist order is subject to the penalties set forth in W. Va. Code §21-14-7.
9.2 Any person adversely affected by an action of the Commissioner may appeal the action pursuant to the provisions of W. Va. Code §29A-5."; and
On page four, by renumbering section 12 as section 11.
§64-10-2. Office of Miners' Health, Safety and Training.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five, article seven, chapter twenty-two-a, of this code, modified by the Office of Miners' Health, Safety and Training to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fourteenth day of December, two thousand seven, relating to the Office of Miners' Health, Safety and Training (criteria and standards for alternative training programs for apprentice coal mine electricians, 48 CSR 8), is authorized.
§64-10-3. Division of Natural Resources.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section twenty-three-a, article two, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fifth day of November, two thousand seven, relating to the Division of Natural Resources (commercial whitewater outfitters, 58 CSR 12), is authorized with the following amendments:
On page six, subsection 5.2, by striking out the subsection in its entirety and inserting lieu there of the following language:
"5.2 Fee Amount.
5.2.1. The study and improvement fee is thirty-five cents ($.35) for each customer transported on a commercial whitewater trip in study zones on the Cheat, New, Shenandoah and Tygart Valley Rivers.
5.2.2. The study and improvement fee is seventy cents ($.70) for each customer transported on a commercial whitewater trip in study zones on the Gauley River.
5.2.3. If a commercial whitewater trip exceeds one day in duration, the appropriate fee shall be collected for each day, or part of a day, of the trip."
On page six, by striking out subsection 5.4, including subdivisions 5.41 and 5.4.2, in their entirety, and inserting in lieu thereof the following language:
"5.4. Gauley River Study and Improvement Fee:
5.4.1. For the purpose of improving and promoting the whitewater industry on the Gauley River, one-half of all study and improvement fees collected pursuant to subdivision 5.2.2 of this rule shall be used to stock the Gauley River with trout during the spring and fall seasons of each year to mitigate the loss of fishing opportunities resulting from the additional water volume on the Gauley River. The Whitewater Commission may hire a private contractor to administer the trout stocking program.
5.4.2. The Whitewater Commission shall review the amount of the study and improvement fee collected pursuant to subdivision 5.2.2 of this rule every four years to determine whether the fee is sufficient to assure adequate funding for the trout stocking program."
(b) 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, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the fifth day of November, two thousand seven, relating to the Division of Natural Resources (revocation of hunting and fishing licenses, 58 CSR 23), is authorized.
(c) 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, article one, chapter twenty, of this code, relating to the Division of Natural Resources (special boating rules, 58 CSR 26), is authorized.
(d) 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, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the fifteenth day of January, two thousand eight, relating to the Division of Natural Resources (conditions upon which oil and gas operators may access state forests, 58 CSR 35), is authorized.
(e) The legislative rule filed in the State Register on the nineteenth day of July, two thousand seven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fifth day of November, two thousand seven, relating to the Division of Natural Resources (wildlife scientific collection permits, 58 CSR 42), is authorized."
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. 354), and there were--yeas 88, nays 7, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Cowles, Lane, Romine and Walters.
Absent And Not Voting: Mahan, Marshall, Moore, Shook and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4255) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 355), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore, Shook and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4255) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4304, Revised Anatomical Gift Act.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4344, Relating to the criminal offense of cruelty to animals.
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. 4368, Reducing acts of student violence and disruptive behavior and increasing penalties for chronically disruptive students.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page six, section two, after line eighty-six, by inserting two new subdivisions, designated subdivisions (1) and (2), to read as follows:
"(1) The school improvement council shall schedule any meeting that involves the issue of student discipline pursuant to subdivision (2), subsection (l) of this section, outside the regularly scheduled working hours of any school employee member of the council.
(2) The school improvement council annually shall conduct a meeting to engage parents, students, school employees and other interested parties in a positive and interactive dialogue regarding effective discipline policies. The meeting shall afford ample time for the dialogue and comply with any applicable provision of state, federal or county board policy, rule or law, as appropriate, regarding student privacy rights."
On page fourteen, section one, line thirty-nine, after the word "classroom", by striking out the comma and the words "the school".
On page fourteen, section one, line forty-three, after the word "classroom", by striking out the comma and the words "the school".
And,
On page fifteen, section one, line fifty-six, after the word "or" by inserting the words "expand its capacity for alternative".
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. 356), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall, Moore and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4368) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4388, Authorizing the West Virginia Supreme Court of Appeals to maintain a domestic violence database.
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 twenty-one, after line seventeen, by adding a new subsection, designated subsection (d), to read as follows:
"(d) The contents of the database authorized by the provisions of this section shall be used solely for law-enforcement purposes and shall not be subject to disclosure pursuant to the provisions of article nine, chapter twenty-nine b of this code."
And,
By amending the title of the bill to read as follows:
H. B. 4388 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section designated §51-1-21, relating to authorizing the West Virginia Supreme Court of Appeals to maintain a domestic violence database.; and exempting database information from the Freedom of Information Act."
On motion of Delegate DeLong, the House refused to concur 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. 4464, Adding more exemptions to the requirement that a foreign corporation obtain a certificate of authority before conducting affairs in the state.
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. 4512, Providing classifications of licensees to be licensed by the State Fire Marshal to engage in fire protection work.
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. 17, Requesting the Joint Committee on Government and Finance to study the recruitment, retention and value of volunteer firefighters in the State of West Virginia.
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. 29 Designating an adaptation of "West Virginia Shawl" as the Official Tartan of the State of West Virginia.
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. 52, Requesting that the Joint Committee on Government and Finance authorize the study of the creation of a new retirement system for correctional officers.
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. 71 - "Requesting the Division of Highways name bridge number 46-40-0.25 (10562) located in Grafton, Taylor County, the "Floyd 'Scotty' Hamilton: First WVU All American Basketball Player Memorial Bridge".
Whereas, The Late Floyd "Scotty" Hamilton led the last seeded West Virginia Mountaineers Basketball Team to victory in the last seconds of the 1942 NIT national championship tournament; and
Whereas, The Mountaineers finished 19-4 that season in large part due to the 5'11" Hamilton averaging 8.7 points per game; and
Whereas, Scotty Hamilton was born in Grafton, Taylor County, in 1921, and was an all state player for Grafton High School; and
Whereas, Scotty Hamilton, lived most of his life as a citizen of West Virginia in Grafton, and honorable served his country in the United States Navy when he fought in World War II; and
Whereas, Floyd "Scotty" Hamilton influenced many young athletes when he was a basketball coach at Washington and Lee and as athletic director at Marietta (Ohio) High School; and
Whereas, Scotty Hamilton is a member of the West Virginia Sports Hall of Fame; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 46-40-0.25 (10562) located in Grafton, Taylor County, the "Floyd 'Scotty' Hamilton: First WVU All American Basketball Player 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 "Floyd 'Scotty' Hamilton: First WVU All American Basketball Player 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 Transportation, the Mayor and City Council of the City of Grafton, West Virginia, David A. Smith, President of the Grafton High School Athletic Boosters, the Athletic Director at West Virginia University and the surviving members of Floyd "Scotty" Hamilton's family.
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. 72 - "Requesting the Division of Highways name bridge number 46-119/42-0.16 (3389) located on Yates Crossing Road in Grafton, Taylor County, the 'Clair Bee: Basketball Coach and Author Memorial Bridge'."
Whereas, The late Clair Bee, the grandson of Ephraim Bee who was a member of the first West Virginia Legislature, was born in Grafton, West Virginia in March of 1896; and
Whereas, Clair Bee was an outstanding American basketball coach who led Long Island University to two undefeated seasons in 1936 and 1939 as well as two National Invitation Tournament titles; and
Whereas, Bee's Teams won ninety-five percent of their games from 1931-1951, including forty-three in a row from 1935 to 1937; and
Whereas, Clair Bee started his career as a student basketball player at Grafton High School and followed his dream to become the coach of the National Basketball Association's Baltimore Bullets from 1952-1954; and
Whereas, Clair Bee, was inducted into the Basketball Hall of Fame in 1968, and the "Clair Bee Coach of the Year Award" is awarded every year to a coach who makes an outstanding contribution to the game of college basketball; and
Whereas, Clair Bee created the fictional Chip Hilton series of books for children, which have inspired teen athletes for over five decades instilling lasting values and developing solid character, from which the "Chip Hilton Player of the Year Award" was created and is given every year to a men's basketball player; and
Whereas, Clair Bee brought fame and honor to his hometown of Grafton, West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 46-119/42-0.16 (3389) located on Yates Crossing Road in Grafton, Taylor County, the "Clair Bee: Basketball Coach and Author 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 "Clair Bee: Basketball Coach and Author 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 Transportation, the Mayor and City Council of the City of Grafton, West Virginia, David A. Smith, President of the Grafton High School Athletic Boosters and the surviving members of Clair Bee's family.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 76 - "Requesting the Division of Highways place signs on Route 19 at the municipal limits of the Town of Fayetteville, Fayette County, stating "Coolest Small Town".
Whereas, In 2007, the Town of Fayetteville, West Virginia, was recognized as one the "Coolest Small Towns in America"; and
Whereas, The Town of Fayetteville hosted a Community Design Team from West Virginia University, in an attempt to gain ideas to promote business in the Town of Fayetteville. The placement of signs identifying Fayetteville as "Coolest Small Town," was one of the suggestions of the design team; and
Whereas, An official request has been made by the Superintendent of the Town of Fayetteville requesting the placement of signs on Route 19 at the municipal limits, stating "Coolest Small Town"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to place signs on Route 19 at the municipal limits of the Town of Fayetteville, Fayette County, stating "Coolest Small Town"; 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.
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. 77 - "Urging the United States Congress declare December 7th a national holiday."
Whereas, The attack on Pearl Harbor on December 7, 1941, which brought the United States into World War II, was truly a day of "infamy" as declared by President Franklin Delano Roosevelt and which resulted in more than sixteen million Americans and two hundred thirty-three thousand nine hundred eighty-five thousand West Virginians taking part in the war which lasted from December 7, 1941 to September 5, 1945, to preserve the way of life of all Americans as a free people; and
Whereas, In addition to Americans in all of the states rallying to war, West Virginia patriots rallied to the war in numbers greater per capita than any other state and this resulted in many West Virginia fathers, mothers, husbands, wives, sons, daughters, uncles, aunts and cousins giving their lives or suffering severe injuries or hardships; and
Whereas, All Americans should recognize and honor the veterans and their families who contributed to the victorious end of World War II and designating December 7, 1941, as a national holiday would pay honor to all their sacrifices and allow them to be remembered and keep alive their being recognized as being the "Greatest Generation"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the United States Congress to declare December 7th a national holiday; and, be it
Further Resolved, That the Legislature expresses great thanks to those veterans who sacrificed and risked their lives to serve their country for the preservation of our freedoms; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the members of the West Virginia delegation to the United States Congress.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 13, Relating to Dental Practice Act generally,
Com. Sub. for S. B. 88, Creating brownfield economic development districts,
S. B. 217, Reducing compliance time for nonresident traffic violations,
Com. Sub. for S. B. 234, Creating Maternal Mortality Review Team,
S. B. 238, Increasing monetary limit to file circuit court suit,
S. B. 263, Updating certain code provisions relating to Division of Corrections
Com. Sub. for S. B. 286, Providing adult and child protective services workers personal immunity from civil liability,
Com. Sub. for S. B. 311, Allowing judges to order jurors from other counties in certain situations,
Com. Sub. for S. B. 325, Relating to state employee deferred compensation plan,
Com. Sub. for S. B. 477, Increasing conservation officers' salaries and length of service,
Com. Sub. for S. B. 501, Transferring Stream Partners Fund from Division of Natural Resources to Department of Environmental Protection,
And,
Com. Sub. for S. B. 634, Creating Military Authority Act.
Reordering of the Calendar

Delegate DeLong announced that the Committee on Rules had transferred Com. Sub. for S. B. 292 and Com. Sub. for S. B. 593, on third reading, House Calendar, to the Special Calendar; and S. B. 722, on second reading, House Calendar, to the Special Calendar.
Special Calendar

Third Reading

Com. Sub. for S. B. 292, Allowing Commissioner of Banking issue bond claims to collect certain unpaid penalties and invoices; 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. 357), 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: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 292) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 593, Clarifying library funding obligation from local share; 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. 358), 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: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 593) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 359), 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: Mahan, Marshall and Stemple.
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. 593) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading

Com. Sub. for S. B. 9, Mandating hunter safety program in public schools; 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, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"§18-2-8a. Hunter safety orientation program.
(a) The Legislature finds that:

(1) Firearms and hunting are important parts of West Virginia's history, culture and economy;
(2) Unfortunately, the use of firearms while hunting or at any other time can be dangerous when the firearms are not handled in a careful and safe manner; and
(3) Therefore, the opportunity of participating in a hunter safety orientation program should be offered to students in certain grades.
(b) The State Board of Education may shall, with the advice of the State Superintendent of Schools and the Director of the Division of Natural Resources, promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code prescribe an for the implementation of a hunter safety orientation program for use in the public schools of this state. in the safety of firearms. The rule shall include at least the following provisions:
(1)
The hunter safety orientation program shall deal with may be offered to students in any of the grade levels sixth through twelfth grades over a two-week period during the school year as part of physical education classes, or as part of the general curriculum offered to students in any of these grade levels, or at the end of the school day;
(2) The hunter safety orientation program is voluntary to students and any student may choose not to participate in the program. If a student chooses not to participate in the program, he or she shall participate in another education activity;
(3) The hunter safety orientation program shall include instruction relating to:
(A)
The protection of lives and property against loss or damage as a result of the improper use of firearms.; and
(B) The orientation program shall also include instruction about The proper use of firearms in hunting, sport competition and the care and safety of firearms in the home; and
(4) The hunter safety orientation program may utilize use materials prepared by any national nonprofit membership organization which has as one of its purposes the training of people in marksmanship and the safe handling and use of firearms; and
(5) The hunter safety orientation program shall be conducted by an instructor certified by the Division of Natural Resources or who has other training necessary to conduct the program as determined by the state board.
(c) The county superintendent may arrange for such implement the hunter safety orientation program in the safety of firearms and its use in accordance with the rule required by this section in each school in the county that includes any of grades six through twelve at which, in the sole judgement of the superintendent, sufficient student interest in program enrollment justifies the program offering and an appropriately certified instructor is available.
(d) The Division of Natural Resources shall issue a certificate of training, required by section thirty-a, article two, chapter twenty of this code, to any student who completes the hunter safety orientation program."
The bill was then ordered to third reading.
Com. Sub. for S. B. 142, Relating to limited expungement of certain criminal records; 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 clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5-1-16a the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-11-26, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 1. THE GOVERNOR.
§5-1-16a. Expungement of criminal record upon full and unconditional pardon.
(a) Any person who has received a full and unconditional pardon from the Governor, pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia and section sixteen of this article, may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged. The petition shall be served upon the prosecuting attorney of the county where the petition was filed. Any person petitioning the court for an order of expungement shall publish a notice of the time and place that such petition will be made, which notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed. The circuit court, upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner's conviction be expunged.
(b) The record expunged pursuant to the provisions of this section may not be considered in an application to any educational institution in this state or an application for any licensure required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to this section until two one years year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to this section until twenty five years after the discharge of his or her sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of conviction of first degree murder, as defined in section one, article two, chapter sixty-one of this code; treason, as defined in section one, article one of said chapter; kidnapping, as defined in section fourteen-a, article two of said chapter; or any felony defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions; procedures; effect.

(a) Any person convicted of a misdemeanor offense or offenses arising from the same transaction committed while he or she was between the ages of eighteen and twenty-six may, pursuant to the provisions of this section, petition the circuit court in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated therewith. The clerk of the circuit court shall charge and collect in advance the same fee as is charged for instituting a civil action pursuant to subsection (a)(1), section eleven, article one, chapter fifty-nine of this code for a petition for expungement.
(b) Expungement of records shall not be available for any conviction of an offense listed in subsection (k) of this section. The relief afforded by this subsection is only available to persons having no other prior or subsequent convictions other than minor traffic violations at the time the petition is filed: Provided, That at the time the petition is filed and during the time the petition is pending, petitioner may not be the subject of an arrest, or any other pending criminal proceeding. No person shall be eligible for expungement pursuant to the provisions of subsection (a) of this section until one year after the conviction, completion of any sentence of incarceration or probation, whichever is later in time.
(c) Each petition to expunge a conviction or convictions pursuant to this section shall be verified under oath and include the following information:
(1) Petitioner's current name and all other legal names or aliases by which petitioner has been known at any time;
(2) All of petitioner's addresses from the date of the offense or alleged offense in connection with which an expungement order is sought, to date of the petition;
(3) Petitioner's date of birth and social security number;
(4) Petitioner's date of arrest, the court of jurisdiction, and criminal complaint, indictment, summons or case number;
(5) The statute or statutes and offense or offenses for which petitioner was charged and of which petitioner was convicted;
(6) The names of any victim or victims, or that there were no identifiable victims;
(7) Whether there is any current order for restitution, protection, restraining order or other no contact order prohibiting the petitioner from contacting the victims, or whether there has ever been a prior order for restitution, protection or restraining order prohibiting the petitioner from contacting the victim. If there is such a current order, petitioner shall attach a copy of that order to his or her petition;
(8) The court's disposition of the matter and punishment imposed, if any;
(9) Why expungement is sought, such as, but not limited to, employment or licensure purposes, and why it should be granted;
(10) The steps the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation
;
(11) Whether petitioner has ever been granted expungement or similar relief regarding a criminal conviction by any court in this state, any other state, or by any federal court;
(12) Documentation of the notice publication required by subsection (d) of this section: and,
(13) Any other supporting documents, sworn statements, affidavits or other information supporting the petition to expunge.
(d) Any person petitioning the court for an order of expungement pursuant to the provisions of subsection (a) of this section shall publish a notice of the time and place that such petition is being made, which notice shall include the petitioner's name; the time and identification of the conviction or convictions for which petitioner seeks expungement; that expungement is sought pursuant to section twenty-six, article eleven, chapter sixty-one of this code; the court in which the petition will be filed; and, the right of any individual to file a notice of opposition to the petition in the circuit court within ten days of the publication of notice. The notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed.
(e) A copy of the petition, with any supporting documentation, shall be served by petitioner pursuant to the rules of the trial court upon the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency which participated in the arrest of the petitioner; the superintendent or warden of any institution in which petitioner was confined; the magistrate court or municipal court which disposed of petitioner's criminal charge; and all other state and local government agencies whose records would be affected by the proposed expungement. The prosecutorial office that had jurisdiction over the offense or offenses for which expungement is sought shall serve by first class mail the petition for expungement, accompanying documentation and any proposed expungement order to any identified victims.
(f) Upon receipt of a petition for expungement, or notice pursuant to subsection(d)of this section, the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency which participated in the arrest of the petitioner; the superintendent or warden of any institution in which petitioner was confined; the magistrate court or municipal court which disposed of petitioner's criminal charge; all other state and local government agencies whose records would be affected by the proposed expungement and any other interested individual or agency that desires to oppose the expungement shall, within thirty days of receipt of the petition or notice of the petition pursuant to subsection (d) of this section, file a notice of opposition with the court with supporting documentation and sworn statements setting forth the reasons for resisting the petition for expungement. A copy of any notice of opposition with supporting documentation and sworn statements shall be served upon the petitioner in accordance with trial court rules. The petitioner may file a reply no later than ten days after service of any notice of opposition to the petition for expungement.
(h) The burden of proof shall be on the petitioner to prove by clear and convincing evidence that: (1) The conviction or convictions for which expungement is sought are the only convictions against petitioner, and that the conviction or convictions are not excluded from expungement by subsection (k) of this section; (2) that the requisite time period has passed since the conviction or convictions or end of the completion of any sentence of incarceration or probation; (3) petitioner has no criminal charges pending against him or her; (4) the expungement is consistent with the public welfare; (5) petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and is law-abiding; and, (6) any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement.
(i) Within sixty days of the filing of a petition for expungement the circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or,
(3) Summarily deny the petition, if the court determines that the petition is insufficient, or based upon supporting documentation and sworn statements filed in opposition to the petition, the court determines that the petitioner, as a matter of law, is not entitled to expungement.
(j) If the court sets the matter for hearing, all interested parties who have filed a notice of opposition shall be notified. At the hearing, the court may inquire into the background of the petitioner and shall have access to any reports or records relating to the petitioner that are on file with any law enforcement authority, the institution of confinement if any, and parole authority, or other agency which was in any way involved with petitioner's arrest, conviction, sentence and post- conviction supervision, including any record of arrest or conviction in any other state, or federal court. The court may hear testimony of witnesses and any other matter the court deems proper and relevant to its determination regarding the petition. The court shall enter an order reflecting its ruling on the petition for expungement with appropriate findings of fact and conclusions of law.
(k) No person shall be eligible for expungement of a conviction and the records associated therewith pursuant to the provisions of subsection (a) of this section for any violation involving the infliction of serious physical injury; involving the provisions of article eight-B, chapter sixty-one of this code where the petitioner was eighteen years old, or older, at the time the violation occurred, and the victim was twelve years of age, or younger, at the time the violation occurred; involving the use or exhibition of a deadly weapon or dangerous instrument; of the provisions of subsection (b) or (c), section nine, article two of this chapter where the victim was a spouse, a person with whom the person seeking expungement had a child in common or with whom the person seeking expungement ever cohabitated prior to the offense; any violation of the provisions of section twenty-eight of said article; a conviction for driving under the influence of alcohol, controlled substances or a conviction for a violation of section three, article four, chapter seventeen-b of this code or section nineteen, article eight of this chapter.
(d)Following the filing of the motion, the court may set a date for a hearing. If the court does so, it shall notify the prosecuting attorney and the arresting agency of the motion and provide an opportunity for a response to the expungement motion.
(l)(e)If the court finds that there are no current charges or proceedings pending relating to the matters for which the expungement is sought, the court may grants the motion petition for expungement, it shall order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to expunge records shall certify to the court within sixty days of the entry of the expungement order that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed.
(m)(f)Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.
(n)(g)Inspection of the sealed records in the court's possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting a petition to inspect the sealed record, it may be granted."
The bill was then ordered to third reading.
Com. Sub. for S. B. 265, Creating Special Aircraft Property Valuation Act; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 280, Modifying Downtown Redevelopment Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.

For purposes of this article, the term:
(1) 'Development expenditures' means payments for governmental functions, programs, activities, facility construction, improvements and other goods and services which a district board is authorized to perform or provide under section five of this article;
(2) 'District' means an economic opportunity development district created pursuant to this article;
(3) 'District board' means a district board created pursuant to section ten of this article;
(4) 'Eligible property' means any taxable or exempt real property located in a district established pursuant to this article; and
(5) 'Municipality' is a word of art and shall mean, for the purposes of this article, only Class I and Class II cities as classified in section three, article one of this chapter;
(6) 'Remediation' means measures undertaken to bring about the reconditioning or restoration of property located within the boundaries of an economic opportunity development district project that has been affected by exploration, industrial operations or solid waste disposal and which measures, when undertaken, will eliminate or ameliorate the existing state of the property and enable the property to be commercially developed
.
§8-38-5. Development expenditures.
Any municipality that has established an economic opportunity development district under this article may make, or authorize to be made by a district board and other public or private parties, development expenditures as will promote the economic vitality of the district and the general welfare of the municipality, including, but not limited to, expenditures for the following purposes:
(1) Beautification of the district by means such as landscaping and construction and erection of fountains, shelters, benches, sculptures, signs, lighting, decorations and similar amenities;
(2) Provision of special or additional public services such as sanitation, security for persons and property and the construction and maintenance of public facilities, including, but not limited to, sidewalks, parking lots, parking garages and other public areas;
(3) Making payments for principal, interest, issuance costs, any of the costs described in section twenty of this article and appropriate reserves for bonds and other instruments and arrangements issued or entered into by the municipality for financing the expenditures of the district described in this section and to otherwise implement the purposes of this article;
(4) Providing financial support for public transportation and vehicle parking facilities open to the general public, whether physically situate within the district's boundaries or on adjacent land;
(5) Acquiring, building, demolishing, razing, constructing, repairing, reconstructing, refurbishing, renovating, rehabilitating, expanding, altering, otherwise developing, operating and maintaining real property generally, parking facilities, commercial structures and other capital improvements to real property, fixtures and tangible personal property, whether or not physically situate within the district's boundaries: Provided, That the expenditure directly benefits the district;
(6) Developing plans for the architectural design of the district and portions thereof and developing plans and programs for the future development of the district;
(7) Developing, promoting and supporting community events and activities open to the general public that benefit the district;
(8) Providing the administrative costs for a district management program;
(9) Providing for the usual and customary maintenance and upkeep of all improvements and amenities in the district as are commercially reasonable and necessary to sustain its economic viability on a permanent basis;
(10) Providing any other services that the municipality or district board is authorized to perform and which the municipality does not also perform to the same extent on a countywide basis;
(11) Making grants to the owners or tenants of economic opportunity development district for the purposes described in this section;
(12) Acquiring an interest in any entity or entities that own any portion of the real property situate in the district and contributing capital to any entity or entities; and
(13) Remediation of publicly or privately owned landfills, solid waste facilities or hazardous waste sites to facilitate commercial development which would not otherwise be economically feasible; and
(13)(14) To do any and all things necessary, desirable or appropriate to carry out and accomplish the purposes of this article notwithstanding any provision of this code to the contrary.
§8-38-7. Application to development office for community and economic development for approval of an economic opportunity development district project.

(a) General. -- The development office shall receive and act on applications filed with it by municipalities pursuant to section six of this article. Each application must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to complete the project;
(4) A general description of the capital improvements, additional or extended services and other proposed development expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the development expenditures, together with a description of the reserves to be established for financing ongoing development or redevelopment expenditures necessary to permanently maintain the optimum economic viability of the district following its inception: Provided, That the amounts of the reserves shall not exceed the amounts that would be required by ordinary commercial capital market considerations;
(6) A description of the sources and anticipated amounts of all financing, including, but not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the special district excise tax and enhanced revenues from property taxes and fees;
(7) A description of the financial contribution of the municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality expects to relocate their business locations from the district to another place in the state in connection with the establishment of the district or from another place in this state to the district: Provided, That for purposes of this article, any entities shall be designated 'relocated entities';
(9) Identification of any businesses currently conducting business in the proposed economic opportunity development district that the municipality expects to continue doing business there after the district is created;
(10) A good faith estimate of the aggregate amount of consumers sales and service tax that was actually remitted to the Tax Commissioner by all business locations identified as provided in subdivisions (8) and (9) of this subsection with respect to their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in the district, for the twelve full calendar months next preceding the date of the application: Provided, That for purposes of this article, the aggregate amount is designated as 'the base tax revenue amount';
(11) A good faith estimate of the gross annual district tax revenue amount;
(12) The proposed application of any surplus from all funding sources to further the objectives of this article;
(13) The Tax Commissioner's certification of: (i) The amount of consumers sales and service taxes collected from businesses located in the economic opportunity district during the twelve calendar months preceding the calendar quarter during which the application will be submitted to the development office; (ii) the estimated amount of economic opportunity district excise tax that will be collected during the first twelve months after the month in which the Tax Commissioner would first begin to collect that tax; and (iii) the estimated amount of economic opportunity district excise tax that will be collected during the first thirty-six months after the month in which the Tax Commissioner would first begin to collect that tax; and
(14) Any additional information the development office may require.
(b) Review of applications. -- The development office shall review all project proposals for conformance to statutory and regulatory requirements, the reasonableness of the project's budget and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and private;
(3) Whether the project is supported by significant private sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would not be feasible;
(4) Whether the economic opportunity development district excise tax dollars will leverage or be the catalyst for the effective use of private, other local government, state or federal funding that is available;
(5) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses;
(7) Whether the project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created in all phases of the project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the area, or part of the area, in which the economic opportunity district is located;
(9) Whether the municipality has a strategy for economic development in the municipality and whether the project is consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this article;
(12) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and
(13)(A) The ability of the municipality and the project developer or project team to carry out the project: Provided, That no project may be approved by the development office unless the amount of all development expenditures proposed to be made in the first twenty-four months following the creation of the district results in capital investment of more than fifty million dollars in the district and the municipality submits clear and convincing information, to the satisfaction of the development office, that such investment will be made if the development office approves the project and the Legislature authorizes the municipality to levy an excise tax on sales of goods and services made within the economic opportunity development district as provided in this article.
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, no project involving remediation may be approved by the development office unless the amount of all development expenditures proposed to be made in the first forty-eight months following the creation of the district results in capital investment of more than fifty million dollars in the district. In addition to the remaining provisions of paragraph (A) of this subdivision the development office may not approve a project involving remediation authorized under section five of this article unless the municipality submits clear and convincing information, to the satisfaction of the development office, that the proposed remediation expenditures to be financed by the issuance of bonds or notes pursuant to section sixteen of this article do not constitute more than twenty-five percent of the total redevelopment expenditures associated with the project.
(c) Additional criteria. -- The development office may establish other criteria for consideration when approving the applications.
(d) Action on the application. -- The Executive Director of the Development Office shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the development office, whichever is the later.
(e) Certification of project. -- If the Executive Director of the Development Office approves a municipality's economic opportunity district project application, he or she shall issue to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the development office has determined with respect to the district's application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the development office requests from the Tax Commissioner and the Tax Commissioner provides to the development office: Provided, That in determining the net annual district tax revenue amount, the development office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the development office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of previously certified district. -- If the Executive Director of the Development Office approves a municipality's economic opportunity district project application to expand the geographic boundaries of a previously certified district, he or she shall issue to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the development office has determined with respect to the district's application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the development office requests from the Tax Commissioner and the Tax Commissioner provides to the development office: Provided, That in determining the net annual district tax revenue amount, the development office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the development office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The Executive Director of the Development Office may promulgate rules to implement the economic opportunity development district project application approval process and to describe the criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the Secretary of State.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by ordinance, impose that tax on the privilege of selling tangible personal property and rendering select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the district. Provided, That Sales of gasoline and special fuel are not subject to special district excise tax but remain subject to the tax levied by article fifteen, chapter eleven of this code. Except for the exemption provided in section nine-f of said article fifteen, chapter eleven of this code, all exemptions and exceptions from the consumers sales and service tax shall also apply to the special district excise tax. and sales of gasoline and special fuel shall not be subject to special district excise tax but shall remain subject to the tax levied by said article.
(c) Tax rate. -- The rate or rates of a special district excise tax levied pursuant to this section shall be stated in an ordinance enacted by the municipality and equal identical to the general rate or rates of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on each dollar of gross proceeds from sales of tangible personal property and services subject to the tax levied by section three, article fifteen, chapter eleven of this code. The tax on fractional parts of a dollar shall be levied and collected in conformity with the provision of said section. rendered within the boundaries of the district authorized by this section.
(d) Collection by Tax Commissioner. -- The ordinance of the municipality imposing a special district excise tax shall provide for the tax to be collected by the Tax Commissioner in the same manner as the tax levied by section three, article fifteen, chapter eleven of this code is administered, assessed, collected and enforced.
(1) The State Tax Commissioner may require the electronic filing of returns related to the special district excise tax imposed pursuant to this section, and may require the electronic payment of the special district excise tax imposed pursuant to this section. The State Tax Commissioner may prescribe by rules promulgated pursuant to article three, chapter twenty-nine-a of this code, administrative notices, and forms and instructions, the procedures and criteria to be followed to electronically file such returns and to electronically pay the special district excise tax imposed pursuant to this section.
(2) Any rules filed by the State Tax Commissioner relating to the special district excise tax imposed pursuant to this section shall set forth the following:
(A) Acceptable indicia of timely payment;
(B) Which type of electronic filing method or methods a particular type of taxpayer may or may not use;
(C) What type of electronic payment method or methods a particular type of taxpayer may or may not use;
(D) What, if any, exceptions are allowable, and alternative methods of payment that may be used for any exceptions;
(E) Procedures for making voluntary or mandatory electronic payments or both;
(F) Any other provisions necessary to ensure the timely electronic filing of returns related to the special district excise tax and the making of payments electronically of the special district excise tax imposed pursuant to this section.
(3) (A) Notwithstanding the provisions of section five-d, article ten, chapter eleven of this code: (i) So long as bonds are outstanding pursuant to this article, the Tax Commissioner shall provide on a monthly basis to the trustee for bonds issued pursuant to this article information on returns submitted pursuant to this article; and (ii) the trustee may share the information so obtained with the county commission that established the economic opportunity development district that issued the bonds pursuant to this article and with the bondholders and with bond counsel for bonds issued pursuant to this article. The Tax Commissioner and the trustee may enter into a written agreement in order to accomplish such exchange of information.
(B) Any confidential information provided pursuant to this subdivision shall be used solely for the protection and enforcement of the rights and remedies of the bondholders of bonds issued pursuant to this article. Any person or entity that is in possession of information disclosed by the Tax Commissioner or shared by the trustee pursuant to subdivision (a) of this subsection is subject to the provisions of section five-d, article ten, chapter eleven of this code as if such person or entity that is in possession of such tax information is an officer, employee, agent or representative of this state or of a local or municipal governmental entity or other governmental subdivision.

(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special district excise tax shall provide that the Tax Commissioner deposit the net amount of tax collected in the special Economic Opportunity Development District Fund to the credit of the municipality's subaccount therein for the economic opportunity development district and that the money in the subaccount may only be used to pay for development expenditures as provided in this article except as provided in subsection (f) of this section.
(2)(A) The State Treasurer shall withhold from the municipality's subaccount in the Economic Opportunity Development District Fund and shall deposit in the General Revenue Fund of this state, on or before the twentieth day of each calendar month next following the effective date of a special district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified by the development office pursuant to section seven of this article.
(B) In addition to the amounts described in paragraph (A) of this subdivision, the tax commissioner shall deposit in the general revenue fund of this state on the dates specified in paragraph (A) not less than twenty percent nor more than fifty percent of the excess of the special district excise taxes collected during the preceding month above one twelfth of the base tax revenue, said percentage to be fixed by the development office in conjunction with its approval of an application in accordance with section seven of this article based on the amount of state funds, if any, to be expended in conjunction with the respective economic opportunity development district project for items including, but not limited to, the acquisition, construction, reconstruction, improvement, enlargement or extension of roadways, rights-of-way, sidewalks, traffic signals, water or sewer lines and other public infrastructure and such other expenditures of state funds identified by the development office.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the authority of this section shall be effective on the first day of the calendar month that begins at least sixty days after the date of enactment of the ordinance imposing the tax or at any later date expressly designated in the ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance levying a special district excise tax, a certified copy of the ordinance shall be mailed to the State Auditor, as ex officio the chief inspector and supervisor of public offices, the State Treasurer and the Tax Commissioner.
§8-38-16. Bonds issued to finance economic opportunity development district projects.

(a) General. -- The municipality that established the economic opportunity development district may issue bonds or notes for the purpose of financing development expenditures, as described in section five of this article, with respect to one or more projects within the economic opportunity development district.
(b) Limited obligations. -- All bonds and notes issued by a municipality under the authority of this article are limited obligations of the municipality.
(c) Term of obligations. -- No municipality may issue notes, bonds or other instruments for funding district projects or improvements that exceed a repayment schedule of thirty years: Provided, That the maximum repayment schedule of bonds issued to finance remediation authorized under section five of this article may not exceed twenty years.
(d) Debt service. -- The principal and interest on the bonds shall be payable out of the funds on deposit in the subaccount established for the economic opportunity development district pursuant to section eight of this article, including, without limitation, any funds derived from the special district excise tax imposed by section twelve of this article or other revenues derived from the economic opportunity development district to the extent pledged for the purpose by the municipality in the resolution authorizing the bonds.
(e) Surplus funds. -- To the extent that the average daily amount on deposit in the subaccount established for a district pursuant to section eight of this article exceeds, for more than six consecutive calendar months, the sum of: (1) One hundred thousand dollars; plus (2) the amount required to be kept on deposit pursuant to the documents authorizing, securing or otherwise relating to the bonds or notes issued under this section, then the excess shall be used by the district either to redeem the bonds or notes previously issued or remitted to the general fund of this state.
(f) Debt not general obligation of municipality. -- Neither the notes or bonds and any interest coupons issued under the authority of this article shall ever constitute an indebtedness of the municipality issuing the notes or bonds within the meaning of any constitutional provision or statutory limitation and shall never constitute or give rise to a pecuniary liability of the municipality issuing the notes or bonds.
(g) Debt not a charge general credit or taxing powers of municipality. -- Neither the bonds or notes, nor interest thereon, is a charge against the general credit or taxing powers of the municipality and that fact shall be plainly stated on the face of each bond or note.
(h) Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed, issued and delivered at any time, and from time to time, may be in a form and denomination, may be of a tenor, must be negotiable but may be registered as to the principal thereof or as to the principal and interest thereof, may be payable in any amounts and at any time or times, may be payable at any place or places, may bear interest at any rate or rates payable at any place or places and evidenced in any manner and may contain any provisions therein not inconsistent herewith, all as provided in the ordinance of the municipality whereunder the bonds or notes are authorized to be issued.
(2) The bonds may be sold by the municipality at public or private sale at, above or below par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be signed by the authorized representative of the municipality and attested by the municipal recorder and be under the seal of the municipality.
(4) Any coupons attached to the bonds shall bear the facsimile signature of the authorized representative of the municipality. In case any of the officials whose signatures appear on the bonds, notes or coupons cease to be officers before the delivery of the bonds or notes, their signatures shall, nevertheless, be valid and sufficient for all purposes to the same extent as if they had remained in office until the delivery.
(i) Additional bonds or notes. -- If the proceeds of the bonds or notes, by error of calculation or otherwise, are less than the cost of the economic opportunity development district project, or if additional real or personal property is to be added to the district project or if it is determined that financing is needed for additional development or redevelopment expenditures, additional bonds or notes may, in like manner, be issued to provide the amount of the deficiency or to defray the cost of acquiring or financing any additional real or personal property or development or redevelopment expenditures and, unless otherwise provided in the trust agreement, mortgage or deed of trust, are considered to be of the same issue and shall be entitled to payment from the same fund, without preference or priority, and shall be of equal priority as to any security."
The bill was then ordered to third reading.
Com. Sub. for S. B. 287, Establishing West Virginia Research Trust Fund; 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.
Com. Sub. for S. B. 291, Appointing additional circuit court judge to Pendleton, Hardy, Hampshire, Mercer and Wayne counties; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 297
, Authorizing School Building Authority to issue revenue bonds from State Excess Lottery Fund; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 309, Increasing Secretary of Transportation and Commissioner of Highways salary when one person serves as both; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization , was reported by the Clerk and adopted, amending the bill on page three, line thirty-four, by striking out the words, "Director, Division of Personnel, seventy thousand dollars" and a comma.
And,
One page five, line eighty-four, after the semi-colon, by inserting the words, "Director, Division of Personnel, seventy thousand dollars" and a comma.
The bill was then ordered to third reading.
Com. Sub. for S. B. 323, Relating to stormwater systems generally; 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:
"CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 20. COMBINED SYSTEMS.
§8-20-10. Power and authority of municipality to enact ordinances and make rules and fix rates, fees or charges; deposit required for new customers; change in rates, fees or charges; failure to cure delinquency; delinquent rates, discontinuance of service; reconnecting deposit; return of deposit; fees or charges as liens; civil action for recovery thereof; deferral of filing fees and costs in magistrate court action; limitations with respect to foreclosure.

(a)(1) The governing body of a municipality availing itself of the provisions of this article shall have plenary power and authority to make, enact and enforce all needful necessary rules for the repair, maintenance, and operation and management of the combined system of such the municipality and for the use thereof. and shall also have The governing body of a municipality also has the plenary power and authority to make, enact and enforce all needful necessary rules and ordinances for the care and protection of any such system, which may be conducive to the preservation of the public for the health, comfort and convenience of the public; to provide a clean and to rendering the water supply, of such municipality pure, the sewerage harmless insofar as it is reasonably possible so to do, and to provide properly treated sewage insofar as it is reasonably possible to do and if applicable, to properly collecting and controlling the stormwater as is reasonably possible so to do: Provided, That no municipality may make, enact or enforce any rule, regulation or ordinance regulating any highways, road or drainage easements or storm water facilities constructed, owned or operated by the West Virginia Division of Highways. except in accordance with chapter twenty-nine-a of this code.
(2) Any A municipality shall have has the plenary power and authority to charge the users for the use and service of a combined system and to establish required deposits, rates, fees or charges for such purpose. Separate deposits, rates, fees or charges may be fixed for the water and sewer services respectively, and, if applicable, the stormwater services, or combined rates, fees or for the combined water and sewer services, and, if applicable, the storm water services. Such deposits, rates, fees or charges, whether separate or combined, shall be sufficient at all times to pay the cost of repair, maintenance and operation of the combined system, provide an adequate reserve fund, and an adequate depreciation fund and pay the principal of and interest upon all revenue bonds issued under this article. Deposits, rates, fees or charges shall be established, revised and maintained by ordinance and become payable as the governing body may determine by ordinance. and such The rates, fees or charges shall be changed from time to time as needful necessary, consistent with the provisions of this article.
(3) All new applicants for service shall indicate to the municipality or governing body whether they are an owner or tenant with respect to the service location.
(4) The municipality or governing body, but only one of them, may collect from all new applicants for service a deposit of one hundred dollars or two twelfths of the average annual usage of the applicant?s specific customer class, whichever is greater, to secure the payment of water and sewage service rates, fees and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent and the user?s service is disconnected or terminated, no reconnecting or reinstatement of service may not be made reconnected or reinstated by the municipality or governing body until another deposit equal to one hundred dollars or a sum equal to two twelfths of the average usage for the applicant?s specific customer class, whichever is greater, is remitted to the municipality or governing body. After twelve months of prompt payment history, the municipality or governing body shall return the deposit to the customer or credit the customer?s account with interest at a rate as to be set by the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the municipality or governing body is not required to return the deposit until the time the tenant discontinues service with the municipality or governing body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same they become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The municipality or governing body may under reasonable rules promulgated by the Public Service Commission, shut off and discontinue terminate water services to a delinquent user of either water or sewage facilities, or both, ten days after the water or sewage services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments: Provided, That any termination of water service must comply with all rules and orders of the Public Service Commission.
(b) Whenever any rates, fees or charges for services or facilities furnished remain unpaid for a period of twenty days after the same they become due and payable, the user of the services and facilities provided shall be delinquent and the municipality or governing body may apply any deposit against any delinquent fee. and the The user shall be held is liable at law until such time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer service, and, if applicable, stormwater service, whenever delinquent, as provided by ordinance of the municipality, shall be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served. and the The municipality shall have has the plenary power and authority from time to time to enforce such lien in a civil action to recover the money due for services rendered plus court fees and costs and a reasonable attorney?s fee fees: Provided, That an owner of real property may not be held liable for the delinquent rates, fees or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates, fees or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of filing an action in magistrate court for the collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.
(e) No municipality may foreclose upon the premises served by it for delinquent rates, fees or charges for which a lien is authorized by this section except through the bringing and maintenance of a civil action for the purpose brought in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality had has exhausted all other remedies for the collection of debts with respect to such delinquencies prior to the bringing of the action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless the delinquency had has been in existence or continued for a period of two years from the date of the first delinquency for which foreclosure is being sought.
(f) Notwithstanding any other provision contained in this article, a municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines or acts are not contrary to any rules or orders of the Public Service Commission.
(g) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct violation of the municipal stormwater ordinance or regulation, the municipality may correct or have the corrections of the violation made and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.
§16-13-16. Rates for service; deposit required for new customers; forfeiture of deposit; reconnecting deposit; tenant's deposit; change or readjustment; hearing; lien and recovery; discontinuance of services.

The governing body shall have power, and it shall be its A governing body has the power and duty, by ordinance, to establish and maintain just and equitable rates, fees or charges for the use of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses such works by or through any part of the sewerage system of the municipality or that in any way uses or is served by such works; and
(b) Stormwater works, to be paid by the owner of each and every lot, parcel of real estate or building that in any way uses or is served by such stormwater works or whose property is improved or protected by the stormwater works or any user of such stormwater works.
(c) The governing body may change and readjust such rates, fees or charges from time to time. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements and/or or stormwater facilities constructed, owned and/or or operated by the West Virginia Division of Highways.
(d) All new applicants for service shall indicate to the governing body whether they are an owner or tenant with respect to the service location.
(e) The governing body may collect from all new applicants for service a deposit of fifty dollars or two twelfths of the average annual usage of the applicant's specific customer class, whichever is greater, to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, no reconnecting or reinstatement of service may not be made reconnected or reinstated by the governing body until another deposit equal to fifty dollars or a sum equal to two twelfths of the average usage for the applicant's specific customer class, whichever is greater, is remitted to the governing body. After twelve months of prompt payment history, the governing body shall return the deposit to the customer or credit the customer's account with interest at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the governing body is not required to return the deposit until the time the tenant discontinues service with the governing body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same they become due and payable, the user of the services and facilities provided is delinquent. and the The user is liable at law until all rates, fees and charges are fully paid. The governing body may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water services to a delinquent user of sewer facilities ten days after the sewer services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments.
(f) Such rates, fees or charges shall be sufficient in each year for the payment of the proper and reasonable expense of operation, repair, replacements and maintenance of the works and for the payment of the sums herein required to be paid into the sinking fund. Revenues collected pursuant to this section shall be considered the revenues of the works.
(g) No such rates, fees or charges shall be established until after a public hearing, at which all the users of the works and owners of property served or to be served thereby and others interested shall have an opportunity to be heard concerning the proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates, fees or charges, and before the same is finally enacted, notice of such hearing, setting forth the proposed schedule of such rates, fees or charges, shall be given by publication as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the municipality. The first publication shall be made at least ten days before the date fixed in such the notice for the hearing.
(i) After such the hearing, which may be adjourned, from time to time, the ordinance establishing rates, fees or charges, either as originally introduced or as modified and amended, shall be passed and put into effect. A copy of the schedule of such the rates, fees and charges so established shall be kept on file in the office of the board having charge of the operation of such works, and also in the office of the clerk of the municipality, and shall be open to inspection by all parties interested. The rates, fees or charges so established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.
(j) Any change or readjustment of such rates, fees or charges may be made in the same manner as such the rates, fees or charges were originally established as hereinbefore provided: Provided, That if such a change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice shall be required. The aggregate of the rates, fees or charges shall always be sufficient for such the expense of operation, repair and maintenance and for such the sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall constitute a lien upon the premises served by such works. If any service rate, fees or charge so established is not paid within twenty days after the same it is due, the amount thereof, together with a penalty of ten percent, and a reasonable attorney's fee, may be recovered by the board in a civil action in the name of the municipality. and in connection with such action said The lien may be foreclosed against such lot, parcel of land or building, in accordance with the laws relating thereto. Provided, That where Where both water and sewer services are furnished by any municipality to any premises the schedule of charges may be billed as a single amount or individually itemized and billed for the aggregate thereof.
(l) Whenever any rates, rentals, fees or charges for services or facilities furnished shall remain unpaid for a period of twenty days after the same shall they become due and payable, the property and the owner thereof, as well as the user of the services and facilities shall be delinquent until such time as all rates, fees and charges are fully paid. When any payment for rates, rentals, fees or charges becomes delinquent, the governing body may use the security deposit to satisfy the delinquent payment.
(m) The board collecting such the rates, fees or charges shall be obligated under reasonable rules to shut off and discontinue both water and sewer services to all delinquent users of either water, facilities, or sewer facilities or both stormwater facilities and shall not restore either water facilities or sewer facilities to any delinquent user of any such facilities until all delinquent rates, fees or charges for both water facilities, and sewer facilities and stormwater facilities, including reasonable interest and penalty charges, have been paid in full, as long as such actions are not contrary to any rules or orders of the Public Service Commission.
§16-13-23a. Additional powers of municipality to cease pollution.
(a) Notwithstanding any other provision contained in this article, and in addition thereto, the governing body of any municipal corporation municipality which has received or which hereafter receives an order issued by the Director of the Division of Secretary of the Department of Environmental Protection or the Environmental Quality Board requiring such municipal corporation the municipality to cease the pollution of any stream or waters, is hereby authorized and empowered to fix, establish and maintain, by ordinance, just and equitable rates, fees or charges for the use of the services and facilities of the existing municipal sewer system and/or and/or stormwater system of such municipal corporation, and/or or for the use of the services and facilities to be rendered upon completion of any works and system necessary by virtue of said order, to be paid by the owner, tenant or occupant of each and every lot or parcel of real estate or building that is connected with and uses any part of such sewer system or stormwater system, or that in any way uses or is served thereby, and may change and readjust such rates, fees or charges from time to time.
(b) Such The rates, fees or charges shall be sufficient for the payment of to all the proper and reasonable costs and expenses of the acquisition and construction of plants, machinery and works for the collection, and/or treatment, purification and disposal of sewage or stormwater and the repair, alteration and extension of existing sewer facilities or stormwater facilities, as may be necessary to comply with such order of the Director of the Division Secretary of the Department of Environmental Protection or the Environmental Quality Board, and for the operation, maintenance and repair of the entire works and system.
(c) The governing body shall create, by ordinance, a sinking fund to accumulate and hold any part or all of the proceeds derived from rates or charges until completion of the construction, to be remitted to and administered by the Municipal Bond Commission by expending and paying the costs and expenses of construction and operation in the manner as provided by said ordinance.
(d) After the completion of the construction such the rates, fees or charges shall be sufficient in each year for the payment of the proper and reasonable costs and expenses of operation, maintenance, repair, replacement and extension, from time to time, of the entire sewer and works or entire stormwater works.
(e) No such rates, fees or charges shall be established until after a public hearing, at which all the potential users of the works and owners of property served or to be served thereby and others shall have had an opportunity to be heard concerning the proposed rates or charges.
(f) After introduction of the ordinance fixing rates, fees or charges, and before the same is finally enacted, notice of such hearing, setting forth the proposed schedule of rates, fees or charges, shall be given by publication of notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. and the The publication area for such publication is the municipality. The first publication shall be made at least ten days before the date fixed therein for the hearing.
(g) After such hearing, which may be adjourned from time to time, the ordinance establishing the rates, fees or charges, either as originally introduced or as modified and amended, may be passed and put into effect. A copy of the schedule of the rates, fees and charges so established shall be kept on file in the office of the sanitary board having charge of the construction and operation of such works and also in the office of the clerk of the municipality. and The schedule of rates, fees and charges shall be open to inspection by all parties interested. The rates, fees or charges so established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.
(h) Any change or readjustment of rates, fees or charges may be made in the same manner as rates, fees or charges were originally established as hereinbefore provided: Provided, That if such change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice is required.
(i) If any rate, fees or charge so established is not paid within thirty days after the same it is due, the amount thereof, together with a penalty of ten percent, and a reasonable attorney's fee, may be recovered by the sanitary board of such municipal corporation the municipality in a civil action in the name of the municipality.
(j) Any municipal corporation municipality exercising the powers given herein has the authority to construct, acquire, improve, equip, operate, repair and maintain any plants, machinery or works necessary to comply with the order of the Director of the Division Secretary of the Department of Environmental Protection or the Environmental Quality Board and the authority provided herein to establish, maintain and collect rates, fees or charges is an additional and alternative method of financing such works and matters, and is independent of any other provision of this article insofar as the article provides for or requires the issuance of revenue bonds or the imposition of rates, fees and charges in connection with the bonds: Provided, That except for the method of financing such works and matters, the construction, acquisition, improvement, equipment, custody, operation, repair and maintenance of any plants, machinery or works in compliance with an order of the Director of the Division Secretary of the Department of Environmental Protection or the Environmental Quality Board and the rights, powers and duties of the municipal corporation municipality and the respective officers and departments thereof, including the sanitary board, are governed by the provisions of this article. Provided, however, That the
(k) The jurisdiction and authority provided by this section does not extend to highways, road and drainage easements and/or and stormwater facilities constructed, owned and/or or operated by the West Virginia Division of Highways and no rates, fees or charges for stormwater services or costs of compliance may be assessed against highways, road and drainage easements and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.
(l) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines or actions are not contrary to any rules or orders of the Public Service Commission.
(m) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct the violation of the municipal stormwater ordinance or regulation, the municipality may make or have made the corrections of the violation and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and sewer connections; lien for delinquent fees.
(a)(1) The board may make, enact and enforce all needful rules in connection with the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection and the use of any public service properties owned or controlled by the district. The board shall establish rates, fees and charges for the services and facilities it furnishes, which shall be sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of maintenance, operation and depreciation of the public service properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article. The schedule of the rates, fees and charges may be based upon:
(A) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the facilities located on the various premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this subdivision; or
(E) May be determined on any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.
(2) Where water, sewer, stormwater or gas services, or any combination thereof, are all furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate of the charges. The board shall require all users of services and facilities furnished by the district to designate on every application for service whether the applicant is a tenant or an owner of the premises to be served. If the applicant is a tenant, he or she shall state the name and address of the owner or owners of the premises to be served by the district. Notwithstanding the provisions of section eight, article three, chapter twenty-four of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant's specific customer class or fifty dollars, with the district to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. If a district provides both water and sewer service, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage for water service or fifty dollars and the greater of a sum equal to two twelfths of the average annual usage for wastewater service of the applicant's specific customer class or fifty dollars. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of service may be made by the district until another deposit equal to the greater of a sum equal to two twelfths of the average usage for the applicant's specific customer class or fifty dollars has been remitted to the district. After twelve months of prompt payment history, the district shall return the deposit to the customer or credit the customer's account at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the district is not required to return the deposit until the time the tenant discontinues service with the district. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water or gas services to all delinquent users of either water or gas facilities, or both, ten days after the water or gas services become delinquent.
(b) In the event that any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates separately either water facilities, or sewer facilities or stormwater facilities and the district owns and operates the other another kind of facilities facility either water or sewer, or both, as the case may be, then the district and the publicly or privately owned utility, city, incorporated town or other municipal corporation or other public service district shall covenant and contract with each other to shut off and discontinue the supplying of water service for the nonpayment of sewer or stormwater service fees and charges: Provided, That any contracts entered into by a public service district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district which provides providing water and sewer service, water and stormwater service or water, sewer and stormwater service to its customers has the right to terminate water service for delinquency in payment of either water, or sewer or stormwater bills. Where one public service district is providing sewer service and another public service district or a municipality included within the boundaries of the sewer or stormwater district is providing water service and the district providing sewer or stormwater service experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer or stormwater district that is providing water service, upon the request of the district providing sewer or stormwater service to the delinquent account, shall terminate its water service to the customer having the delinquent sewer or stormwater account: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission.
(c) Any district furnishing sewer facilities within the district may require, or may by petition to the circuit court of the county in which the property is located, compel or may require the Division of Health to compel all owners, tenants or occupants of any houses, dwellings and buildings located near any sewer facilities where sewage will flow by gravity or be transported by other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code, from the houses, dwellings or buildings into the sewer facilities, to connect with and use the sewer facilities and to cease the use of all other means for the collection, treatment and disposal of sewage and waste matters from the houses, dwellings and buildings where there is gravity flow or transportation by any other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code and the houses, dwellings and buildings can be adequately served by the sewer facilities of the district and it is declared that the mandatory use of the sewer facilities provided for in this paragraph is necessary and essential for the health and welfare of the inhabitants and residents of the districts and of the state. If the public service district requires the property owner to connect with the sewer facilities even when sewage from dwellings may not flow to the main line by gravity and the property owner incurs costs for any changes in the existing dwellings' exterior plumbing in order to connect to the main sewer line, the Public Service District Board shall authorize the district to pay all reasonable costs for the changes in the exterior plumbing, including, but not limited to, installation, operation, maintenance and purchase of a pump or any other method approved by the Division of Health. Maintenance and operation costs for the extra installation should be reflected in the users charge for approval of the Public Service Commission. The circuit court shall adjudicate the merits of the petition by summary hearing to be held not later than thirty days after service of petition to the appropriate owners, tenants or occupants.
(d) Whenever any district has made available sewer facilities to any owner, tenant or occupant of any house, dwelling or building located near the sewer facility and the engineer for the district has certified that the sewer facilities are available to and are adequate to serve the owner, tenant or occupant and sewage will flow by gravity or be transported by other methods approved by the Division of Health from the house, dwelling or building into the sewer facilities, the district may charge, and the owner, tenant or occupant shall pay, the rates and charges for services established under this article only after thirty-day notice of the availability of the facilities has been received by the owner, tenant or occupant. Rates and charges for sewage services shall be based upon actual water consumption or the average monthly water consumption based upon the owner's, tenant's or occupant's specific customer class.
(e) Whenever any district has made available a stormwater system to any owner, tenant or occupant of any real property located near the stormwater system and where stormwater from real property affects or drains into the stormwater system, it is hereby found, determined and declared that the owner, tenant or occupant is being served by the stormwater system and it The owner, tenant or occupant of any real property may be determined and declared to be served by a stormwater system only after each of the following conditions is met: (1) the district has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26; (2) the district's authority has been properly expanded to operate and maintain a stormwater system; (3) the district has made available a stormwater system where stormwater from the real property affects or drains into the stormwater system; and (4) the real property is located in the Municipal Separate Storm Sewer System's designated service area. It is further hereby found, determined and declared that the mandatory use of the stormwater system is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state. The district may charge, and the owner, tenant or occupant shall pay the rates, fees and charges for stormwater services established under this article only after thirty-day notice of the availability of the stormwater system has been received by the owner.
(f) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities, gas facilities or stormwater systems or stormwater management programs are liens on the premises served of equal dignity, rank and priority with the lien on the premises of state, county, school and municipal taxes. In addition to the other remedies provided in this section, public service districts are granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of delinquent water, sewer, stormwater or gas bills. If the district collects the delinquent account, plus reasonable costs, from its customer or other responsible party, the district shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred. In addition, each public service district may exchange with other public service districts a list of delinquent accounts: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the public service district to purchase the services or facilities.
(g) Anything in this section to the contrary notwithstanding, any establishment, as defined in section three, article eleven, chapter twenty-two of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the Department of Environmental Protection, as prescribed by section eleven, article eleven, chapter twenty-two of this code, is exempt from the provisions of this section."
The bill was then ordered to third reading.
Com. Sub. for S. B. 417, Authorizing Department of Revenue 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 and adopted, amending the bill on page five, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-7-1. Alcohol Beverage Control Commission.
(a) 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 three-a, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (retail licensee operations, 175 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand seven, authorized under the authority of section twenty-three, article eight, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (farm wineries, 175 CSR 3), is authorized.
(c) 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 three-a, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (sale of wine, 175 CSR 4), is authorized.
§64-7-2. Insurance Commissioner.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (guaranteed loss ratios as applied to individual sickness and accident insurance policies, 114 CSR 31), is authorized.
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (mental health parity, 114 CSR 64), is authorized.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (recognition of preferred mortality tables for use in determining minimum reserve liabilities, 114 CSR 69A), is authorized.
(d) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (replacement of life insurance policies and annuity contracts, 114 CSR 8), is authorized.
(e) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (military sales practices, 114 CSR 82), is authorized.
(f) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (suitability in annuity transactions, 114 CSR 11B), is authorized.
(g) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (life insurance disclosures, 114 CSR 11A), is authorized.
(h) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (life insurance illustrations, 114 CSR 11C), with the following amendment:
On page seventeen, section eleven, by striking section eleven in its entirety and inserting in lieu thereof the following:
"§114-11C-11. Failure to comply.
A violation of paragraphs 5.2 or 5.3, section 5 of this rule by an insurer constitutes a statement or omission which misrepresents the benefits, advantages, conditions or terms of a life insurance policy.'.
(i) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (examiners and examinations, 114 CSR 15), is authorized.
(j) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (licensing and conduct of insurance producers, agencies and solicitors, 114 CSR 2), is authorized.
(k) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (fingerprinting requirements for applications for insurance producer license, 114 CSR 2A), is authorized.
(l) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (advertisement of life insurance and annuities, 114 CSR 11), is authorized.
§64-7-3. Lottery Commission.
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-two-c, chapter twenty-nine of this code, modified by the Lottery Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-sixth day of December, two thousand seven, relating to the Lottery Commission (racetrack table games, 179 CSR 8), is authorized with the following amendments:
On page twelve, by striking out subsection 2.65 in its entirety;
On page fifteen, by striking subsection 3.11 in its entirety and renumbering the subsequent subsections accordingly;
On page seventeen, by striking out section 179-8-9 in its entirety and renumbering the subsequent sections accordingly;
And,
On page ninety-four, section one hundred ten, by striking out the words 'section eleven' and inserting in lieu thereof the words 'sections one hundred fourteen through one hundred twenty-six'.
§64-7-4. State Tax Department.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five-s, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-ninth day of December, two thousand seven, relating to the State Tax Department (exchange of information agreement between the Commissioner of the Tax Division of the Department of Revenue and the Commissioner of the Division of Labor of the Department of Commerce, the Commissioner of the Insurance Commission of the Department of Revenue, the Commissioner of the Division of Motor Vehicles of the Department of Transportation, the Commissioner of the Bureau of Employment Programs and the Office of the Governor, 110 CSR 50D), is authorized."
The bill was then ordered to third reading.
Com. Sub. for S. B. 467, Reauthorizing Dam Safety Rehabilitation Revolving Fund; 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 sixteen, section nineteen, line thirty-three, by striking out the word "may" and inserting in lieu thereof the word "shall".
And,
On page seventeen, section nineteen, line forty-eight, by striking out the word "may" and inserting in lieu thereof the word "shall".
The bill was then ordered to third reading.
Com. Sub. for S. B. 474, Creating limited sales tax holiday for certain Energy Star appliance purchases; 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 nine-j, beginning on line one, by striking out subsection (a) in its entirety and inserting in lieu thereof the following:
"(a) There is established an annual sales tax holiday on the sale of specified Energy Star qualified products from the taxes imposed by this article if:
(1)(A) The sales price of the specified Energy Star qualified product is two thousand five hundred dollars or less per purchase for noncommercial home or personal use; and
(B) The sale takes place in two thousand eight during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the seventh day of September; or
(2)(A) The sales price of the specified Energy Star qualified product is five thousand dollars or less per purchase for noncommercial home or personal use; and
(B) The sale takes place:
(i) In two thousand nine during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the thirtieth day of November; or
(C) In two thousand ten during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the thirtieth day of November."
On page three, section nine-j, line twenty-three, by striking out subsection (c) in its entirety and inserting in lieu thereof the following:
"(c) Definition. -- As used in this section, the term "Energy Star qualified product" means a product that meets the energy efficient guidelines set by the United States Environmental Protection Agency and the United States Department of Energy that are authorized to carry the Energy Star label. Covered products are those listed at www.energystar.gov or successor address."
The bill was then ordered to third reading.
Com. Sub. for S. B. 476, Creating State Employee Sick Leave Fund; 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 one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5-5-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that the said code be amended by adding thereto a new section, designated §5-5-6, all to read as follows:
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.

For the purposes of this article:
(a) 'Eligible employee' means:
(1) Any regular full-time employee of the state or any spending unit of the state who is eligible for membership in any state retirement system of the State of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article does not apply to any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section. Clerks, deputy clerks and magistrate assistants of magistrate courts are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the maximum salaries and compensation for the employee offices under the magistrate court system statutes of article one, chapter fifty of this code. Members of the Board of Parole are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the salaries and compensation provided in §6-7-2a of this code. This article may not be construed to mandate an increase in the salary of any elected or appointed officer of the state;
(2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the Council for Community and Technical College Education; or
(3) Any full-time faculty member as defined in section one, article eight, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the West Virginia Council for Community and Technical College Education.
(b) 'Years of service' means full years of totaled service as an employee of the State of West Virginia. For full-time faculty as defined in this section, each nine or more months of contracted employment during a fiscal year equals one full year of service; and
(c) 'Spending unit' means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
5-5-6. Payment for unused sick leave.
(a) Every eligible employee, as defined in section one of this article, who was hired prior to the first day of July, two thousand one, and who has accumulated at least sixty-five days of unused sick leave may be paid, at his or her option, for unused sick leave in an amount of days as designated by the employee not to exceed the number of sick leave days that would reduce an employee's sick leave balance to less than fifty days. The employee shall be paid at a rate equal to one quarter of their usual rate of daily pay during that calendar year. The 'daily rate of pay' of an employee paid a monthly salary is calculated by multiplying the monthly salary by twelve and dividing that number into the number of workdays for that calendar year. As used in this section, 'workday' does not include weekends
. Any payment for unused sick leave may not be a part of final average salary computation.
(b) Payment for unused sick leave may be made only once per fiscal year on either the pay day immediately following the first full pay period in July or the first full pay period in December. Payments shall be made out of the fund established in subsection (d) of this section.
(c) Any eligible employee opting to receive payment in exchange for unused sick leave must contract, in a form to be prescribed by the Department of Administration, agreeing to reimburse the fund for the amount exchanged plus twelve percent annum if the employee elects to separate from employment within sixty months of the date of the exchange pursuant to subsection (a) of this section. The Department of Administration shall pursue collection of the obligation, either by itself, or by contracting with a collection agency. For purposes of this section, 'separation' does not include separation from employment by death or retirement, but does refer to any other manner in which employment may be terminated.
(d) Payments shall be made in the order that eligible employees apply for the payments so long as funds are available. In the event the fund is insufficient to pay all employees who have applied for payment in a fiscal year, employees who do not receive payment are eligible for payment in the next fiscal year, are not required to reapply and shall receive payment in the order in which they first applied, unless the employee chooses to withdraw the application prior to the next fiscal year.
(e) Effective the first day of July, two thousand nine, there is created a special revenue account within the State Treasury to be known as the State Employee Sick Leave Fund which shall consist of moneys appropriated by the Legislature, and shall be administrated by the Secretary of the Department of Administration.
(f) The Secretary shall adopt procedural rules pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this section. The rules shall include, but not be limited to, provisions for the application and the application process.
(g) Each spending unit, as defined in section one of this article, shall verify to the Secretary an employee is eligible for payment under this section and shall verify the number of unused sick leave days for all employees at least once per year. The Secretary shall maintain sick leave records for all spending units. All sick leave days that an employee is paid for as provided in this section shall be deducted from the employee's sick leave balance by the Secretary, and the Secretary shall verify to each spending unit the amount of days that have been deducted from an employee's sick leave balance. An employee shall not be permitted to reacquire any sick leave days that he or she received payment for under the provisions of this section."

The bill was then ordered to third reading.
Delegate DeLong moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 360), 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: Mahan, Marshall and Stemple.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 361), and there were--yeas 93, nays 4, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Border, Ireland, Lane and J. Miller.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 476) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 476 - "A Bill to amend and reenact §5-5-1 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-5-6, all relating to public employee benefits generally; providing that members of the parole board are eligible for incremental salary increases; state eligible employees hired prior to the first day of July, two thousand one, to be paid for unused sick leave days in excess of fifty days once per year; creating the State Employee Sick Leave Fund; naming the Secretary of the Department of Administration as administrator of the fund; and authorizing rulemaking to implement the provisions of this section."
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 362), 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: Mahan, Marshall and Stemple.
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. 476) 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. 535, Modifying certain penalties for DUI; 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 four, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §17B-4-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code be amended and reenacted; and that §17C-5A-1, §17C-5A- 2, §17C-5A-3 and §17C-5A-3a of said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving while license revoked for driving under the influence of alcohol, controlled substances or drugs, or while having alcoholic concentration in the blood of eight hundredths of one percent or more, by weight, or for refusing to take secondary chemical test of blood alcohol contents.

(a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a period of ten days and, in addition to the mandatory jail sentence, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a period of not less than thirty days nor more than ninety days six months and in addition to the mandatory jail sentence, shall be fined not less than one hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or any combination thereof, or for driving while having an alcoholic concentration in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a period of not less than thirty days nor more than six months and in addition to the mandatory jail sentence, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for a period of not less than six months nor more than one year and in addition to the mandatory jail sentence, shall be fined not less than one thousand dollars nor more than three thousand dollars; for the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than three years and, in addition to the mandatory prison sentence, shall be fined not less than three thousand dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent conviction of any person under subsection (b) of this section upon a charge of driving a vehicle while the license of such that person was lawfully suspended or revoked, the division shall extend the period of such the suspension or revocation for an additional period of one year six months which may be served concurrently with any other suspension or revocation. from and after the date such person would otherwise have been entitled to apply for a new license. Upon receiving a record of the second or subsequent conviction of any person under subsection (a) of this section upon a charge of driving a vehicle while the license of such that person was lawfully suspended or revoked, the division shall extend the period of such the suspension or revocation for an additional period of one year ninety days which may be served concurrently with any other suspension or revocation. from and after the date such person would otherwise have been entitled to apply for a new license.
(d) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended for driving while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for twenty-four hours or shall be fined not less than fifty dollars nor more than five hundred dollars, or both.
Upon receiving a record of a first or subsequent conviction under this subsection for a charge of driving a vehicle while the license of that person was lawfully suspended or revoked, the division shall extend the period of the suspension or revocation for an additional period of six months which may be served concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.

(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two years nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for up to not less than one day nor more than six months which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of fifteen hundredths of one percent or more, by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(e) (f) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(f) (g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) (h) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) (i) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four hours and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance of the proceedings, from time to time, to allow the person to participate in the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of this subsector or subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(i) (j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) The person when so while driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than twelve months, which jail term is to include actual confinement of not less than forty-eight hours and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(j) (k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than six months nor more than one year and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
(k) (l) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(l) (m) For purposes of subsections (j) and (k) and (l) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), or (f) or (g) of this section or under a prior enactment of this section for an offense which occurred within the ten-year period immediately preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f), or (g) or (h) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(m) (n) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time period for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) (o) The fact that any person charged with a violation of subsection (a), (b), (c), (d), or (e) or (f) of this section, or any person permitted to drive as described under subsection (f) or (g) or (h) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f), or (g) or (h) of this section.
(o) (p) For purposes of this section, the term 'controlled substance' has the meaning ascribed to it in chapter sixty-a of this code.
(p) (q) The sentences provided herein in this section upon conviction for a violation of this article are mandatory and may not be are not subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less for a first offense under this section. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense: Provided, however, That for any period of home incarceration ordered for a person convicted of second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code: Provided further, That for any period of home incarceration ordered for a person convicted of a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty- two of this code.
§17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.

(a) If any person under arrest as specified in section four of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to such the refusal, the person is given a an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life; and that after fifteen minutes following the warnings If a person initially refuses to submit to the designated secondary chemical test after being informed in writing of the consequences of such refusal, he shall be informed orally and in writing that after fifteen minutes said the refusal shall be deemed to be is considered final. and the The arresting officer shall after said that period of time expires have has no further duty to provide the person with an opportunity to take the secondary test. The officer shall, within forty-eight hours of such the refusal, sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He or she had reasonable grounds to believe such the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) such the person was lawfully placed under arrest for an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) such the person refused to submit to the secondary chemical test finally designated in the manner provided in section four of this article; and (4) such the person was given a written statement advising him or her that his or her license to operate a motor vehicle in this state would be revoked for a period of at least one year forty-five days and up to life if he or she refused to submit to the secondary test finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section shall constitute constitutes an oath or affirmation by the person signing such the statement that the statements contained therein in the statement are true and that any copy filed is a true copy. Such The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor. Upon receiving the statement the commissioner shall make and enter an order revoking such the person's license to operate a motor vehicle in this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary chemical test, the commissioner shall make and enter an order revoking such the person's license to operate a motor vehicle in this state for a period of one year or forty-five days, with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a, article five-a, chapter seventeen-c of this code: Provided, That a person revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Test and Lock Program. The application for participation in the Motor Vehicle Alcohol Test and Lock Program shall be considered to be a waiver of the hearing provided in section two, article five-a of this chapter. If the commissioner has previously revoked the person's license under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking such the person's license to operate a motor vehicle in this state for a period of ten years: Provided, That the license may be reissued in five years in accordance with the provisions of section three, article five-a of this chapter. If the commissioner has previously revoked the person's license more than once under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking such the person's license to operate a motor vehicle in this state for a period of life: Provided, however, That the license may be reissued in ten years in accordance with the provisions of section three, article five-a of this chapter. A copy of each such order shall be forwarded to such the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation and shall specify the revocation period imposed pursuant to this section. No such A revocation shall not become effective until ten days after receipt of the copy of such the order. Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of refusal shall be deemed considered not to have withdrawn his or her consent for a test of his or her blood, breath or urine as provided in section four of this article and the test may be administered although such the person is not informed that his or her failure to submit to the test will result in the revocation of his or her license to operate a motor vehicle in this state for the period provided for in this section.
A revocation hereunder under this section shall run concurrently with the period of any suspension or revocation imposed in accordance with other provisions of this code and growing out of the same incident which gave rise to the arrest for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs and the subsequent refusal to undergo the test finally designated in accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of suspensions or revocations shall also be regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction under a municipal ordinance of another state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in section two of this article for conduct which occurred on or after the tenth day of June tenth, one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two, article five-a of this chapter for conduct which occurred on or after the tenth day of June tenth, one thousand nine hundred eighty- three.
(c) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be heard, in accordance with the provisions of section two, article five-a of this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

§17C-5A-1. Implied consent to administrative procedure; revocation for driving under the influence of alcohol, controlled substances or drugs or refusal to submit to secondary chemical test.

(a) Any person who is licensed to operate a motor vehicle in this state and who drives a motor vehicle in this state shall be deemed to have given his or her consent by the operation thereof, subject to the provisions of this article, to the procedure set forth in this article for the determination of whether his or her license to operate a motor vehicle in this state should be revoked because he or she did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, or did refuse to submit to any designated secondary chemical test required under the provisions of article five, chapter seventeen-c of this code or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight.
(b) Any law-enforcement officer arresting investigating a person for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours of the arrest conclusion of the investigation the name and address of the person so arrested believed to have committed the offense. The report shall include the specific offense with which the person is charged and, if applicable, a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection shall constitute constitutes an oath or affirmation by the person signing the statement that the statements contained therein in the statement are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
(c) If, upon examination of the written statement of the officer and the tests results described in subsection (b) of this section, the commissioner shall determine determines that a person was arrested for committed an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of eight hundredths of one percent or more, by weight, or at the time the person was arrested committed the offense he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking or suspending the person's license to operate a motor vehicle in this state. If the results of the tests indicate that at the time the test or tests were administered the person was under the age of twenty-one years and had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make and enter an order suspending the person's license to operate a motor vehicle in this state. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation or suspension and describe the applicable revocation or suspension periods provided for in section two of this article. No A revocation or suspension shall not become effective until ten days after receipt of a copy of the order.
(d) Any law-enforcement officer taking a child into custody under the provisions of section six-a, article five of this chapter who has reasonable cause to believe that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, or that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of section two of said article if the child were an adult, shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours the name and address of the child.
(e) If applicable, the report shall include a description of the specific offense with which the child could have been charged if the child were an adult and a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to br signed by this subsection shall constitute constitutes an oath or affirmation by the person signing such the statement that the statements contained therein in the statement are true and that any copy filed is a true copy. Such The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
(f) Upon examination of the written statement of the officer and any test results described in subsection (d) of this section, if the commissioner determines that the results of the test indicate that at the time the test or tests were administered the child had, in his or her blood, an alcohol concentration of two hundredths of one percent or more, by weight, but also determines that the act of the child in driving the motor vehicle was not such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f), or (g) or (h), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order suspending the child's license to operate a motor vehicle in this state. If the commissioner determines that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f), or (g) or (h), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order revoking the child's license to operate a motor vehicle in this state. A copy of such the order shall be forwarded to the child by registered or certified mail, return receipt requested, and shall contain the reasons for the suspension or revocation and describe the applicable suspension or revocation periods provided for in section two of this article. No A suspension or revocation shall not become effective until ten days after receipt of a copy of such the order.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to operate a motor vehicle in this state has been revoked or suspended under the provisions of section one of this article or section seven, article five of this chapter, the Commissioner of the Division of Motor Vehicles shall stay the imposition of the period of revocation or suspension and afford the person an opportunity to be heard. The written request must be filed with the commissioner in person or by registered or certified mail, return receipt requested, within thirty calendar days after receipt of a copy of the order of revocation or suspension or no hearing will be granted. The hearing shall be before the commissioner or a hearing examiner retained by the commissioner who shall rule on evidentiary issues and submit proposed findings of fact and conclusions of law for the consideration of the commissioner and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The commissioner may reject or modify the hearing examiner's proposed findings of fact and conclusions of law, in writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division located in or near the county wherein in which the arrest was made in this state or at some other suitable place in the county wherein in which the arrest was made if an office of the division is not available.
(b) (c) Any such hearing shall be held within one hundred eighty days after the date upon which the commissioner received the timely written request therefor for a hearing unless there is a postponement or continuance. The commissioner may postpone or continue any hearing on the commissioner's own motion or upon application for each person for good cause shown. The commissioner shall adopt and implement by a procedural rule written policies governing the postponement or continuance of any such hearing on the commissioner's own motion or for the benefit of any law-enforcement officer or any person requesting the hearing and such the policies shall be enforced and applied to all parties equally. For the purpose of conducting the hearing, the commissioner shall have the power and authority to may issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code: Provided, That the notice of hearing to the appropriate law-enforcement officers by registered or certified mail, return receipt requested, shall constitute constitutes a subpoena to appear at the hearing without the necessity of payment of fees by the Division of Motor Vehicles.
(c) (d) Any investigating officer who submits a statement pursuant to section one of this article that results in a hearing pursuant to this section shall not attend the hearing on the subject of that affidavit unless requested to do so by the party whose license is at issue in that hearing or by the commissioner. The hearing request form shall clearly and concisely inform a person seeking a hearing of the fact that the investigating officer will only attend the hearing if requested to do so and provide for a box to be checked requesting the investigating officer's attendance. The language shall appear prominently on the hearing request form. The Division of Motor Vehicles is solely responsible for causing the attendance of the investigating officers. Law-enforcement officers shall be compensated for the time expended in their travel and appearance before the commissioner by the law-enforcement agency by whom they are employed at their regular rate if they are scheduled to be on duty during said time or at their regular overtime rate if they are scheduled to be off duty during said time. If the party whose license is at issue does not request the investigating officer to attend the hearing, the commissioner shall consider the written statement, test results and any other information submitted by the investigating officer pursuant to section one of this article in that officer's absence.
(d) (e) The principal question at the hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did refuse to submit to the designated secondary chemical test, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight.
The commissioner may propose a legislative rule in compliance with the provisions of article three, chapter twenty-nine-a of this code which rule may provide that if a person accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, intends to challenge the results of any secondary chemical test of blood, breath or urine under section seven, article five of this chapter, or intends to cross-examine the individual or individuals who administered the test or performed the chemical analysis, the person shall, within an appropriate period of time prior to the hearing, notify the commissioner in writing of such his or her intention. The rule may provide that when there is a failure to comply with the notice requirement, the results of the secondary test, if any, shall be admissible as though the person and the commissioner had stipulated the admissibility of such the evidence. Any such rule shall provide that the rule shall not be invoked in the case of a person who is not represented by counsel unless the communication from the commissioner to the person establishing a time and place for the hearing also informed the person of the consequences of the person's failure to timely notify the commissioner of the person's intention to challenge the results of the secondary chemical test or cross-examine the individual or individuals who administered the test or performed the chemical analysis.
(e) (f) In the case of a hearing wherein in which a person is accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make specific findings as to: (1) Whether the arresting investigating law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol, controlled substances or drugs, or while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or to have been driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight; (2) whether the person was lawfully placed under arrest for committed an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test; and (3) whether the tests, if any, were administered in accordance with the provisions of this article and article five of this chapter.
(f) (g) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person and was committed in reckless disregard of the safety of others and if the commissioner further finds that the influence of alcohol, controlled substances or drugs or the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of ten years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(g) (h) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, the commissioner shall revoke the person's license for a period of five years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(h) (i) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, the commissioner shall revoke the person's license for a period of two years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(i) (j) If the commissioner finds by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent or more, by weight, or finds that the person, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, did drive a motor vehicle, or finds that the person knowingly permitted the person's vehicle to be driven by another person who was under the influence of alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by another person who had an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight the commissioner shall revoke the person's license for a period of six months or a period of fifteen days with an additional one hundred and twenty days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a, article five-a, chapter seventeen-c of this code: Provided, That a person whose license is revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program: Provided, further however, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however Provided further, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substance or drugs, the commissioner also finds by a preponderance of the evidence that the person did drive a motor vehicle while having an alcohol concentration in the person's blood of fifteen hundredths of one percent or more, by weight, the commissioner shall revoke the person's license for a period of forty-five days with an additional two hundred and seventy days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of article three-a, article five-a, chapter seventeen-c of this code: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(2) If a person whose license is revoked pursuant to subdivision (1) of this subsection proves by clear and convincing evidence that they do not own a motor vehicle upon which the alcohol test and lock device may be installed or is otherwise incapable of participating in the Motor Vehicle Alcohol Test and Lock Program, the period of revocation shall be one hundred eighty days:
Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(j) (l) If, in addition to a finding that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, and if the commissioner further finds that the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of five years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(k) (m) If, in addition to a finding that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, and if the commissioner further finds that the alcohol concentration in the blood was a contributing cause to the bodily injury, the commissioner shall revoke the person's license for a period of two years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(l) (n) If the commissioner finds by a preponderance of the evidence that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall suspend the person's license for a period of sixty days: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article, the period of revocation shall be for one year, or until the person's twenty-first birthday, whichever period is longer.
(m) (o) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did have on or within the motor vehicle another person who has not reached his or her sixteenth birthday, the commissioner shall revoke the person's license for a period of one year: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(n) (p) For purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of criminal convictions or administrative suspensions or revocations shall also be regarded as suspensions or revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the prior enactment of this section for conduct which occurred within the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction under a municipal ordinance of another state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in section two, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest.
(o) (q) In the case of a hearing wherein in which a person is accused of refusing to submit to a designated secondary test, the commissioner shall make specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) whether the person was lawfully placed under arrest for committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) whether the person refused to submit to the secondary test finally designated in the manner provided in section four, article five of this chapter; and (4) whether the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for at least one year forty-five days and up to life if the person refused to submit to the test finally designated in the manner provided in said section.
(p)(r) If the commissioner finds by a preponderance of the evidence that: (1) The arresting law-enforcement investigating officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) the person was lawfully placed under arrest for committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) the person refused to submit to the secondary chemical test finally designated; and (4) the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for a period of at least one year forty-five days and up to life if the person refused to submit to the test finally designated, the commissioner shall revoke the person's license to operate a motor vehicle in this state for the periods specified in section seven, article five of this chapter. The revocation period prescribed in this subsection shall run concurrently with any other revocation period ordered under this section or section one of this article arising out of the same occurrence.
(q) (s) If the commissioner finds to the contrary with respect to the above issues the commissioner shall rescind his or her earlier order of revocation or shall reduce the order of revocation to the appropriate period of revocation under this section or section seven, article five of this chapter. A copy of the commissioner's order made and entered following the hearing shall be served upon the person by registered or certified mail, return receipt requested. During the pendency of any such hearing, the revocation of the person's license to operate a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the person shall be entitled to judicial review as set forth in chapter twenty-nine-a of this code. The commissioner may not stay enforcement of the order. The court may grant a stay or supersede as of the order only upon motion and hearing, and a finding by the court upon the evidence presented, that there is a substantial probability that the appellant shall prevail upon the merits and the appellant will suffer irreparable harm if the order is not stayed: Provided, That in no event shall the stay or supersede as of the order exceed one hundred fifty days. Notwithstanding the provisions of section four, article five of said chapter, the commissioner may not be compelled to transmit a certified copy of the file or the transcript of the hearing to the circuit court in less than sixty days.
(r) (t) In any revocation or suspension pursuant to this section, if the driver whose license is revoked or suspended had not reached the driver's eighteenth birthday at the time of the conduct for which the license is revoked or suspended, the driver's license shall be revoked or suspended until the driver's eighteenth birthday or the applicable statutory period of revocation or suspension prescribed by this section, whichever is longer.
(s) (u) Funds for this section's hearing and appeal process may be provided from the Drunk Driving Prevention Fund, as created by section forty-one, article two, chapter fifteen of this code, upon application for such the funds to the Commission on Drunk Driving Prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the Division of Alcoholism and Drug Abuse, shall propose a legislative rule or rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code establishing a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article or section seven, article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code and shall likewise also establish the minimum qualifications for mental health facilities or other public agencies or private entities conducting the safety and treatment program: Provided, That the commissioner Department of Health and Human Resources, Division of Alcoholism and Drug Abuse may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.
(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction and other programs designed to properly educate, train and rehabilitate the offender.
(b) (c) (1) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the Division of Alcoholism and Drug Abuse, shall provide for the preparation of an educational and treatment program for each person whose license has been revoked under the provisions of this article or section seven, article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code which shall contain the following: (A) A listing and evaluation of the offender's prior traffic record; (B) The characteristics and history of alcohol or drug use, if any; (C) His or her amenability to rehabilitation through the alcohol safety program; and (D) a recommendation as to treatment or rehabilitation and the terms and conditions of the treatment or rehabilitation. The program shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment. The cost of the program shall be paid out of fees established by the Commissioner of Motor Vehicles in cooperation with the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse. The program provider shall collect the established fee from each participant upon enrollment. The program provider shall also at the time of enrollment remit to the commissioner a portion of the collected fee established by the commissioner in cooperation with the Department of Health and Human Resources, which shall be deposited into an account designated the Driver's Rehabilitation Fund: Provided, That on and after the first day of July, two thousand seven, any unexpended balance remaining in the driver's rehabilitation fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of section twenty-one, article two, chapter seventeen-a of this code and all further fees collected shall be deposited in that fund.
(2) The Department of Health and Human Resources shall establish a fee by legislative rule proposed pursuant to article three, chapter twenty-nine-A of the Code to be collected from each offender enrolled in the safety and treatment program. The program provider shall collect the established fee from each participant upon enrollment unless the Department has determined that the participant is an indigent based upon criteria established pursuant to subdivision (3) of this subsection. The Department of Health and Human Services shall reimburse enrollment fees to program providers for each eligible indigent offenders.
(3) The Department of Health and Human Resources shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-A of this Code, criteria to determine the eligibility for the payment of safety and treatment services for indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility; promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment for safety and training services for eligible offenders.
(4) On or before the fifteenth day of January, of each year, the Secretary of the Department of Health and Human Resources shall report to the Legislature on:
(A) The total number of offenders participating in the safety and treatment program during the prior year;
(B) The total number of indigent offenders participating in the safety and treatment program during the prior year;
(C) The total number of program providers during the prior year; and
(D) The total amount of reimbursements paid to program provider during the prior year.
(2) (5) The commissioner after giving due consideration to the program developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article or section seven, article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code which shall include successful completion of the educational, treatment or rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license to operate a motor vehicle in this state shall not be reissued until: (i) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid;
(B) When the period of revocation is for a period of years one year or for more than a year, the license to operate a motor vehicle in this state shall not be reissued until: (i) At least one half of such the time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) The offender has successfully completed the program; (iii) All costs of the program and administration have been paid; and (iv) All costs assessed as a result of a revocation hearing have been paid. Notwithstanding any provision in this code, a person whose license is revoked for refusing to take a chemical test as required by section seven, article five of this chapter for a first offense is not eligible to reduce the revocation period by completing the safety and treatment program.
(C) When the period of revocation is for life, the license to operate a motor vehicle in this state shall not be reissued until: (i) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(D) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program shall only have to certify that such the person has successfully completed the program.
(c) (d) (1) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, shall provide for the preparation of an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection (l) (n), section two, article five-a of this chapter. The educational program shall consist of not less than twelve nor more than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered, the license to operate a motor vehicle shall not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.
(d) A required component of the rehabilitation program provided for in subsection (b) of this section and the education program provided for in subsection (c) of this section shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug- related offenses and offenders to share first-hand experiences on the impact of alcohol- and drug- related offenses in their lives. The commissioner Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code to and implement a plan for victim impact panels where appropriate numbers of victims are available and willing to participate and shall establish guidelines for other innovative programs which may be substituted where such the victims are not available so as to assist persons whose licenses have been suspended or revoked for alcohol and drug-related offenses to gain a full understanding of the severity of their offenses in terms of the impact of such the offenses on victims and offenders. The legislative rules proposed for promulgation by the commissioner plan shall require, at a minimum, discussion and consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships of victims or offenders; and
(E) Other information relating to the impact of alcohol and drug-related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall contain provisions which The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, shall ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.
§17C-5A-3a. Establishment of and participation in the Motor Vehicle Alcohol Test and Lock Program.

(a) (1) The Division of Motor Vehicles shall control and regulate a Motor Vehicle Alcohol Test and Lock Program for persons whose licenses have been revoked pursuant to this article or the provisions of article five of this chapter or have been convicted under section two, article five of this chapter.
(2) The program shall include the establishment of a users fee for persons participating in the program which shall be paid in advance and deposited into the Driver's Rehabilitation Fund: Provided, That on and after the first day of July, two thousand seven, any unexpended balance remaining in the Driver's Rehabilitation Fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of section twenty-one, article two, chapter seventeen-a of this code and all further fees collected shall be deposited in that fund.
(3) Except where specified otherwise, the use of the term 'program' in this section refers to the Motor Vehicle Alcohol Test and Lock Program. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section. The rules shall also prescribe those requirements which, in addition to the requirements specified by this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system.
(4) For purposes of this section, a 'motor vehicle alcohol test and lock system' means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system's assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, the person is determined to be under the influence of alcohol.
(5) The commissioner shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-A of this Code, criteria to determine the eligibility for the payment of the installation of ignition interlock devices in the vehicles of indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility; promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment of installations for eligible offenders.
(6) On or before the fifteenth day of January, of each year, the commissioner of the division of motor vehicles shall report to the Legislature on:
(A) The total number of offenders participating in the program during the prior year;
(B) The total number of indigent offenders participating in the program during the prior year;
(C) The terms of any contracts with the providers of ignition interlock devices ; and
(D) The total cost of the program to the state during the prior year.

(b)(1) Any person whose license is revoked for the first time pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program: Provided, That anyone whose license is revoked for the first time pursuant to subsection (k), section two of this article must participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program.
(2) Any person whose license has been suspended pursuant to the provisions of subsection (l) (n), section two of this article for driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect: Provided, That in the case of a person under the age of eighteen, the person is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person's eighteenth birthday, whichever is later. Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to comply with the following conditions:
(A) If not already enrolled, the person will shall enroll in and complete the educational program provided for in subsection (c) (d), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(B) The person will shall pay all costs of the educational program, any administrative costs and all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, no a person eligible to participate in the program under this subsection may not operate a motor vehicle unless approved to do so by the commissioner.
(c) A person who participates in the program under subdivision (1), subsection (b) of this section is subject to a minimum revocation period and minimum period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (d) or (f) (g), section two, article five of this chapter or pursuant to subsection (i) (j), section two of this article, the minimum period of revocation for participation in the test and lock program is thirty fifteen days and the minimum period for the use of the ignition interlock device is five months one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter refusal to submit to a designated secondary chemical test, the minimum period of revocation for participation in the test and lock program is thirty forty-five days and the minimum period for the use of the ignition interlock device is nine months one year;
(3) For a person whose license has been revoked for a first offense pursuant to section one-a of this article for conviction of an offense defined in subsection (e), section two, article five of this chapter or pursuant to subsection (j), section two of this article, the minimum period of revocation for participation in the test and lock program is forty-five days and the minimum period for the use of the ignition interlock device is two hundred seventy days;
(3) (4) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a), section two, article five of this chapter or pursuant to subsection (f), section two of this article, the minimum period of revocation before the person is eligible for participation in the test and lock program is twelve months and the minimum period for the use of the ignition interlock device is two years;
(4) (5) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, the minimum period of revocation is six months and the minimum period for the use of the ignition interlock device is two years;
(5) (6) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is one year;
(6) (7) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (i) (j), section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article or section seven, article five of this chapter and the person was previously either convicted or his or her license was revoked under any provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in the program under this subsection is one year and the minimum period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to participate because of a violation of subsection (l) (n), section two of this article or subsection (h) (i), section two, article five of this chapter is two months and the minimum period of participation is one year. The division shall add an additional two months to the minimum period for the use of the ignition interlock device if the offense was committed while a minor was in the vehicle. The division shall add an additional six months to the minimum period for the use of the ignition interlock device if a person other than the driver received injuries. The division shall add an additional two years to the minimum period for the use of the ignition interlock device if a person other than the driver is injured and the injuries result in that person's death. The division will shall add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past ten years. Any person required to participate under this subsection must have an ignition interlock device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a person whose license is revoked for driving under the influence of drugs is not eligible to participate in the Motor Vehicle Test and Lock Program.
(e) (f) An applicant for the test and lock program may not have been convicted of any violation of section three, article four, chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the six-month period preceding the date of application for admission to the test and lock program unless such is necessary for employment purposes.
(f) (g) Upon permitting an eligible person to participate in the program, the commissioner shall issue to the person, and the person is required to exhibit on demand, a driver's license which shall reflect that the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(g) (h) The commissioner may extend the minimum period of revocation and the minimum period of participation in the program for a person who violates the terms and conditions of participation in the program as found in this section, or legislative rule, or any agreement or contract between the participant and the division or program service provider.
(h) (i) A person whose license has been suspended pursuant to the provisions of subsection (l) (n), section two of this article who has completed the educational program and who has not violated the terms required by the commissioner of the person's participation in the program is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that the records have been expunged and by securely sealing and filing the records. Expungement has the legal effect as if the suspension never occurred. The records may not be disclosed or made available for inspection and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of the information does not divulge the identity of the person.
(i) (j) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during such that person's participation in the Motor Vehicle Alcohol Test and Lock Program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars. Any person who attempts to bypass the alcohol test and lock system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars: Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site if such the operation is a condition of his or her employment. For the purpose of this section, job site does not include any street or highway open to the use of the public for purposes of vehicular traffic."
The bill was then ordered to third reading.
Com. Sub. for S. B. 553, Creating Permitting and Licensing Information Act; 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 clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5A-6A-1, §5A-6A-2, §5A-6A-3, §5A-6A-4, §5A-6A-5, §5A-6A-6, §5A-6A-7, §5A-6A-8, and §5A-6A-9, all to read as follows:
ARTICLE 6A. PERMITTING AND LICENSING INFORMATION ACT.
§5A-6A-1. Short title.
Short title. -- This article may be known and cited as the Permitting and Licensing Information Act.
§5A-6A-2. Legislative findings.
(a) The Legislature finds that:
(1) Persons conducting business activities in this state are required to obtain permits and licenses from various agencies that regulate those activities;
(2) The efficiency of the permitting and licensing process is an integral component of effective government, business development and public participation; and
(3) It is in the public interest that the permitting and licensing process for business activities should be efficient and streamlined.
(b) Therefore, the Legislature declares that the permitting and licensing process for business activities be facilitated and coordinated by the Governor's Office of Technology.
§5A-6A-3. Definitions.
For the purposes of this article, the following words have the meaning assigned unless the context indicates otherwise:
(1) 'Agency' means any board, department, division, authority, commission or other public entity that requires a permit or license to be obtained from the entity to conduct a business activity in this state.
(2) 'Office' means the Governor's Office of Technology.
(3) 'Permit' means any permit, license, authorization, certification, registration or other approval required to perform a business activity.
§5A-6A-4. Permit and license information authority.

(a) The Legislature hereby authorizes the Governor's Office of Technology to facilitate and coordinate the permitting and licensing process for business activities in this state.
(b) The office has the following authority to:
(1) Establish a central permit and license information repository;
(2) Determine the type of information that each agency must submit in order to provide adequate information to the public regarding the permits and licenses needed for a particular business activity;
(3) Require state agencies and local agencies to provide their permit and license information, including the type and purpose of all permits and licenses the agency issues;
(4) Create an online permitting and licensing program monitored through the state web page; and
(5) Make recommendations to the Governor and the Legislature concerning the functionality of the central permit and license information repository to ensure its accessibility and reliability for use by agencies and the public.
§5A-6A-5. Duty of agencies to provide permitting and licensing information; development of permitting and licensing information repository.

(a) On or before the first day of October, two thousand eight, the office shall provide notice to all agencies that beginning on the first day of February, two thousand nine, that the agency shall submit licensing and permitting licensing information to the office.
(b) On or before the first day of December, two thousand eight, the office shall establish, and provide to agencies that issue permits and licenses, the procedures and methods for submission of required permitting and licensing information for the permitting and licensing information repository.
(c) On or before the first day of February, two thousand nine, an agency that issues permits and licenses shall submit the required permitting and licensing information to the office in accordance with the procedures and methods established in this article.
(d) On or before the first day of July, two thousand nine, the office will create an internet- based, publicly accessible permitting and licensing information repository, in coordination with the state's e-government initiatives, that contains the following:
(1) A comprehensive detailed listing of the types of permits and licenses required for specific business activities;
(2) The purposes of the permits and licenses; and
(3) The agencies responsible for issuance of the permits and licenses, including the agency contact information.
(e) The permitting and licensing information repository shall allow individuals to obtain a listing of the types of permits and licenses required for specific business activities.
§5A-6A-6. Requirements for adopted, revised or terminated permitting or licensing information.

No later than thirty days prior to the effective date of the implementation, revision or termination of any permitting or licensing requirement, an agency, subject to the provisions of this article, is required to provide to the office the current information relating to a permit or license.
§5A-6A-7. Reporting requirements.
Annually, by the thirtieth day of December, the office shall report to the Joint Committee on Government and Finance and the Governor the status of the permitting and licensing information repository and identify any agency that has failed to comply with the requirements of this article.
§5A-6A-8. Rule-making authority.
The office may propose rules for legislative approval pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the purpose and provisions of this article.
§5A-6A-9. Limitation.
Although this article creates a central permitting and licensing information repository, each agency shall continue to administer its own permitting and licensing procedures and charge and collect the appropriate fees."
Delegate DeLong moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 363), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Mahan, Marshall and Stemple.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 364), 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: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 553) 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. 553 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5A-6A-1, §5A-6A-2, §5A-6A-3, §5A-6A-4, §5A-6A-5, §5A-6A-6, §5A-6A-7, §5A-6A-8, and §5A-6A-9, all relating to establishing the Permitting and Licensing Information Act; authorizing the Governor's Office of Technology to establish a permitting and licensing information system; providing legislative findings; definitions; establishing authority and duties of the office; creating duty for agencies to provide permitting and licensing information; reporting requirements; granting rule-making authority; and providing for limitations of the article."
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. 564, Relating to higher education tuition and fee waivers; 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 by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18-19-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18B-10-1, §18B-10-5, §18B-10-6 and §18B-10-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 19. EDUCATIONAL OPPORTUNITIES FOR SPOUSES AND CHILDREN OF DECEASED SOLDIERS, SAILORS, MARINES AND AIRMEN.

§18-19-2. Eligibility of applicant for benefits; application forms; preference.

(a) To be eligible for the benefits of this article, a child or spouse set forth in section one of this article shall be meet the following conditions:
(1) In the case of a child, is at least sixteen and not more than twenty-five years of age;
(2) Is enrolled in a post-secondary education or training institution in this state; and
(3) Is the child or spouse of an enlistee who designated West Virginia as his or her state of record.
(b) The application shall be made to, and upon forms provided by, the West Virginia Division of Veterans' Affairs. The division shall determine the eligibility of those who apply and the yearly amount to be allotted each applicant. The amount, in the discretion of the division, may vary from year to year, but may not exceed the sum of one thousand dollars in any one semester or a total of two thousand dollars in any one year. In selecting those to receive the benefits of this article, preference shall be given those who are otherwise financially unable to secure the educational opportunities.
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.

(a) Each governing board shall fix tuition and other fees for each school term for the different classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among the tuition and fees any one or more of the following as defined in section one-b of this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue account for each of the following classifications of fees:
(1) All tuition and required educational and general fees collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees collected to support existing systemwide and institutional debt service and future systemwide and institutional debt service, capital projects and campus renewal for educational and general facilities.
(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable from such the accounts, an institution may expend funds from each such special revenue account for any purpose for which funds were collected within that account regardless of the original purpose for which the funds were collected.
(c) The purposes for which tuition and fees may be expended include, but are not limited to, health services, student activities, recreational, athletic and extracurricular activities. Additionally, tuition and fees may be used to finance a student's attorney to perform legal services for students in civil matters at the institutions: Provided, That the legal services are limited only to those types of cases, programs or services approved by the administrative head of the institution where the legal services are to be performed.
(d) The Commission and Council jointly shall propose a rule for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the commission and council jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
(f) (e) The schedule of all tuition and fees, and any changes therein in the schedule, shall be entered in the minutes of the meeting of the appropriate governing board and the board shall file with the Commission or Council, or both, as appropriate, and the Legislative Auditor a certified copy of such the schedule and changes.
(g) (f) The boards shall establish the rates to be charged full-time students, as defined in section one-b of this article, who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the above provisions of this subsection.
(h) (g) All fees are due and payable by the student upon enrollment and registration for classes except as provided in this subsection:
(1) The governing boards shall permit fee payments to be made in installments over the course of the academic term. All fees shall be paid prior to the awarding of course credit at the end of the academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.
(3) If a governing board determines that a student's finances are affected adversely by a legal work stoppage, it may allow the student an additional six months to pay the fees for any academic term. The governing board shall determine on a case-by-case basis if the finances of a student are affected adversely.
(4) The Commission and Council jointly shall propose a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code defining conditions under which an institution may offer tuition and fee deferred payment plans through the institution or through third parties.
(5) An institution may charge interest or fees for any deferred or installment payment plans.
(i) (h) In addition to the other fees provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group if the students at the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. The fee may not be used to finance litigation against the institution.
(j) (i) Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with the tuition rule proposed by the Commission and Council jointly pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs;
(3) Provide that a board of governors may propose to the Commission, Council or both, as appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the Commission, Council or both, as appropriate, and either the students below the senior level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee is implemented;
(E) The Commission, Council or both, as appropriate, shall certify to the Legislature annually by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years;
(4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
(k) (j) A penalty may not be imposed by the Commission or Council upon any institution based upon the number of nonresidents who attend the institution unless the Commission or Council determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of resident students to attend the institution or participate in the programs of the institution. The institutions shall report annually to the Commission or Council on the numbers of nonresidents and such other enrollment information as the Commission or Council may request.
(l) (k) Tuition and fee increases of the governing boards, except for the governing boards of the state institutions of higher education known as Marshall University and West Virginia University, are subject to rules adopted by the Commission and Council jointly pursuant to this section and in accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivisions (4) and (8) of this subsection, a governing board of an institution under the jurisdiction of the Commission may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year. The nine and one-half percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction of the Council may propose tuition and fee increases of up to four and three quarters percent for undergraduate resident students for any fiscal year except a governing board may propose increases in excess of four and three quarters percent if existing tuition and fee rates at the institution are below the state average for tuition and fees at institutions under the jurisdiction of the Council. The four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board.
(3) The Commission or Council, as appropriate, shall examine individually each request from a governing board for an increase.
(4) Subject to the provisions of subdivision (8) of this subsection the governing boards of Marshall University and West Virginia University, as these provisions relate to the state institutions of higher education known as Marshall University and West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed by this section without seeking approval from the Commission; and
(B) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology, the regional campus known as West Virginia University at Parkersburg and, until the first day of July, two thousand seven, the regional campus known as West Virginia University Institute of Technology.
(5) Any proposed tuition and fee increase for state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University requires the approval of the Commission or Council, as appropriate. In determining whether to approve or deny the governing board's request, the Commission or Council shall determine the progress the institution has made toward meeting the conditions outlined in this subdivision and shall make this determination the predominate factor in its decision. The Commission or Council shall consider the degree to which each institution has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the Commission or Council;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
(D) Has demonstrated to the satisfaction of the Commission or Council that an increase will be used to maintain high-quality programs at the institution;
(E) Has demonstrated to the satisfaction of the Commission or Council that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and
(F) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
(6) This section does not require equal increases among institutions or require any level of increase at an institution.
(7) The Commission and Council shall report to the Legislative Oversight Commission on Education Accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision (5) of this subsection.
(8) Notwithstanding the provisions of subdivisions (1) and (4) of this subsection, tuition and fee increases at state institutions of higher education which are under the jurisdiction of the Commission, including the state institutions of higher education known as Marshall University and West Virginia University, are subject to the following conditions:
(A) Institutions may increase tuition and fees for resident, undergraduate students by no more than an average of seven and one-half percent per year during any period covering four consecutive fiscal years, with the first fiscal year of the first four-fiscal year cycle beginning on the first day of July, two thousand seven;
(B) The seven and one-half percent average cap does not apply to an institution for any fiscal year in which the total state base operating budget appropriations to that institution are less than the total state base operating budget appropriations in the fiscal year immediately preceding;
(C) A new capital fee or an increase in an existing capital fee is excluded from the tuition and fee increase calculation in this subdivision:
(i) If the new fee or fee increase is approved by an institutional governing board or by a referendum of an institution's undergraduate students, or both, on or before the first day of February, two thousand six; or
(ii) If the following conditions are met:
(I) The new fee or fee increase was approved by an institutional governing board or by a referendum of an institution's undergraduate students, or both, on or before the first day of July, two thousand six;
(II) The institution for which the capital fee is approved has been designated a university pursuant to the provisions of section six, article two-a of this chapter by the effective date of this section; and
(III) The institutional board of governors previously oversaw a community and technical college that achieved independent accreditation and consequently acquired its own board of governors;
(D) Institutions shall provide, in a timely manner, any data on tuition and fee increases requested by the staff of the Commission. The Commission has the power and the duty to shall:
(i) Collect such the data from any institution under its jurisdiction; and
(ii) Annually by the first day of July, provide a detailed analysis of the institutions' compliance with the provisions of this subdivision to the Legislative Oversight Commission on Education Accountability.
§18B-10-5. Fee waivers -- Undergraduate schools.

Each governing board periodically may establish fee waivers for students in undergraduate studies at institutions under its jurisdiction entitling recipients to waiver of tuition, capital and other fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the governing boards of Marshall University and West Virginia University, respectively, for the state institutions of higher education known as Marshall University and West Virginia University, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University, the following conditions apply:
(1) An institution may not have in effect at any time a number of undergraduate fee waivers which exceeds five percent of the number of totaling more in value than five percent of the tuition and required fees assessed for all full-time equivalent undergraduate students registered during the fall semester of the immediately preceding academic year.
(2) Each undergraduate fee waiver entitles the recipient thereof of the waiver to attend a designated state institution of higher education without payment of the tuition, capital and other fees as may be prescribed by the governing board and is for a period of time not to exceed eight semesters of undergraduate study.
(3) The governing board shall make rules pursuant to the provisions of section six, article one of this chapter governing the award of undergraduate fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof of the waiver; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings of the governing board.
(5) Students enrolled in an administratively linked community and technical college shall be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing board. The number to be awarded to students of the community and technical college is based upon the full-time equivalent enrollment of that institution.
(6) An institution may grant fee waivers to its employees, their spouses and dependents, and these waivers are not counted when determining the maximum percentage of waivers permitted by this section.
(7) Any fee waivers mandated by this article or by section three, article nineteen, chapter eighteen of this code are not counted when determining the maximum percentage of waivers permitted by this section.
§18B-10-6. Fee waivers -- Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate study by the provisions of section five of this article, each governing board periodically may establish fee waivers for study in graduate and professional schools under its jurisdiction, including medicine and dentistry, entitling the recipients to waiver of tuition, capital, and other fees, subject to the following conditions and limitations:
(a) Graduate and professional fee waivers established by the governing boards of Marshall University and West Virginia University, respectively, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University, the following conditions apply:
(1) An institution may not have in effect at any time a number of graduate and professional school fee waivers which exceeds five percent of the number of totaling more in value than five percent of the tuition and required fees assessed for all full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the above five percent in this subdivision, all graduate assistants employed by these institutions shall be granted a fee waiver.
(2) Each graduate or professional school fee waiver entitles the recipient to waiver of the tuition, capital and other fees as may be prescribed by the governing boards and is for a period of time not to exceed the number of semesters normally required in the recipient's academic discipline.
(3) The governing boards shall make rules pursuant to the provisions of section six, article one of this chapter governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof of the waivers; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of graduate and professional school fee waivers shall be entered in the minutes of the meeting of each governing board.
(5) An institution may grant fee waivers to its employees, their spouses and dependents, and these waivers are not counted when determining the maximum percentage of waivers permitted by this section.
(6) Any fee waivers mandated by this article or by section three, article nineteen, chapter eighteen of this code are not counted when determining the maximum percentage of waivers permitted by this section.
§18B-10-7. Tuition and fee waivers for children and spouses of officers, firefighters, National Guard personnel, reserve personnel and active military duty personnel killed in the line of duty.

(a) Each state institution of higher education shall permit any person to attend its undergraduate courses and classes if classroom space is available without charging the person any tuition or any fees, if (1) the person waive tuition and fees for any person who is the child or spouse of an individual who:
(1) Was employed or serving as:
(A) A law-enforcement officer as defined in section one, article twenty-nine, chapter thirty of this code;
(B) A correctional officer at a state penal institution;
(C) A parole officer;
(D) A probation officer;
(E) A conservation officer; or
(F) A registered firefighter; and
(2) Was killed in the line of duty while:
(A) Employed by the state or any political subdivision of the state; or
(B) A member of a volunteer fire department serving a political subdivision of this state.
(b) Each state institution of higher education shall waive tuition and fees for any person who is the child or spouse of:
(1) A National Guard member or a member of a reserve component of the armed forces of the United States killed in the line of duty. The member is considered to have been killed in the line of duty if death resulted from performing a duty required by his or her orders or commander while in an official duty status, other than on federal active duty, authorized under federal or state law; or
(2) A person on federal or state active military duty who is a resident of this state and is killed in the line of duty. The person is considered to have been killed in the line of duty if death resulted from performance of a duty required by his or her orders or commander while in an official duty status.
(c) Any waiver granted pursuant to this section is subject to the following:
(1) The recipient may attend any undergraduate course if classroom space is available;
(2) The recipient has applied and been admitted to the institution;
(3) The recipient has applied for and submitted the Free Application for Federal Student Aid;
(4) The recipient has exhausted all other sources of student financial assistance dedicated solely to tuition and fees that exceed other grant assistance that are available to him or her, excluding student loans;
(5) Waiver renewal is contingent upon the recipient continuing to meet the academic progress standards established by the institution.

(d) The state institution of higher education may require the person to pay:
(1) Special fees, including any laboratory fees, if the fees are required of all other students taking a single course or that particular course; and
(2) Parking fees.
(c) (e) The governing boards may promulgate rules:
(1) For determining the availability of classroom space;
(2) As it considers necessary to implement this section; and
(3) Regarding requirements for attendance, which may not exceed such the requirements for other persons.
(d) (f) The governing boards may extend to persons attending courses and classes under this section any rights, privileges or benefits extended to other students which it considers appropriate."
The bill was then ordered to third reading.
S. B. 574, Increasing State Police compensation; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 590, Protecting health care workers; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 595, Establishing education goals and objectives for 2020; 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 §18B-1-1, §18B-1-1b and §18B-1-1c of the Code of West Virginia, 1931, as amended, be repealed; that §18B-1A-1 and §18B-1A-2 of said code be repealed; that §18B-1B-8 and §18B-1B-9 of said code be repealed; that §18B-3B-1 and §18B-3B-2 of said code be repealed; that §18B-11-5 of said code be repealed; that §18-1-4 of said code be amended and reenacted; that §18- 2E-5c be amended and reenacted; that §18B-1-1a of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §18B-1D-1, §18B-1D-2, §18B-1D-3, §18B-1D-4, §18B-1D-5, §18B-1D-6, §18B-1D-7 and §18B-1D-8; and that said code be amended by adding thereto a new section, designated §18B-14-9, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.
§18-1-4. Vision 2020: An Education Blueprint for Two Thousand Twenty.
(a) The Governor, the Legislature, the state board and the people of West Virginia agree that the education of their children is of utmost importance to the future well-being of the state and that the purpose of enacting education laws and providing funding to support a system of free schools is to assure that all of our children have every opportunity to secure an education which is thorough and is provided in an efficient manner. The Governor, the Legislature, the state board and the people of West Virginia further agree that improvements are needed in the education system of West Virginia if these objectives are to be met.
(b) Therefore, the Governor, the Legislature, the state board and the people of West Virginia have established goals for themselves which are measurable and achievable through the combined efforts of the government, the school system and the people through an increased focus on the needs of children. These goals are:
(a) This section, together with section one-a, article one, chapter eighteen-b of this code and article one-d of said chapter, shall be known as and may be cited as Vision 2020: An Education Blueprint for Two Thousand Twenty.
(b) For the purposes of this section:
(1) 'Goals' means those long-term public purposes which are the desired end result and only may include those items listed in subsection (e) of this section;
(2) 'Objectives' means the ends to be accomplished or attained within a specified period of time for the purpose of meeting the established goals; and
(3) 'Strategies' means specific activities carried out by the public education system which are directed toward accomplishing specific objectives.
(c) The Legislature finds that:
(1) The measure of a thorough and efficient system education is whether students graduate prepared to meet the challenges of the future as contributing members of society, and that these challenges change, becoming ever more complex and involving a global context more than at any other time in the history of our nation;
(2) The state recently has embraced and is implementing the Partnership for 21st Century Skills model for teaching and learning including six key elements (Core subjects, 21st Century content, learning and thinking skills, information and communications technology literacy, life skills and 21st Century assessments) to help better prepare students for the challenges of the 21
st Century;
(3) Published national studies by several organizations routinely examine various elements of state education systems and selected underlying socioeconomic variables and rate and rank West Virginia and the other states, the District of Columbia and the territories based on the measurement systems and priorities established by the organizations, and these measurement systems and priorities change;
(4) While the state should take pride in studies that show West Virginia is among the leaders in several of its efforts and is making progress, its students often outperforming expectations based on typical indicators of the likelihood for student success such as the income and education levels of their parents, it should also recognize that the state must do even more to ensure that high school graduates are fully prepared for post-secondary education or gainful employment;
(5 Therefore, the purpose of this section is to provide for the establishment of a clear plan that includes goals, objectives, strategies, indicators and benchmarks to help guide the state's policy makers on the continuous development of the state's education system for the 21
st Century.
(d) As part of Vision 2020: An Education Blueprint for Two Thousand Twenty, the State Board shall establish a plan in accordance with the provisions of this section for submission to and consideration by the Process for Improving Education Council pursuant to section five-c, article two-e of this chapter. The plan shall include only the goals, objectives, strategies, indicators and benchmarks for public education set forth in this section and that meet the requirements of this section. To add clarity and avoid confusion, the goals for public education set forth in the plan pursuant to this section are the exclusive goals for public education. The plan shall include:
(1) The goals set forth in this section and no other goals;
(2) At least the objectives set forth in this section and specified periods of time for achieving those objectives and any other objectives that may be included in the plan;
(3) Strategies for achieving the specific objectives;
(4) Indicators for measuring progress toward the goals and objectives established in this section; and
(5) Benchmarks for determining when the goals and objectives have been achieved.
(e) The plan shall include the following list of exclusive goals for the public education system in West Virginia:
(1) Academic achievement according to national and international measures will exceed national and international averages. These national and international measures should include scores on assessments such as the National Assessment of Educational Progress (NAEP), the ACT, the SAT and the Programme for International Assessment (PISA);
(2) The public education system will prepare fully all students for post-secondary education or gainful employment;
(3) All working-age adults will be functionally literate;
(4) The public education system will maintain and promote the health and safety of all students and will develop and promote responsibility, citizenship and strong character in all students; and
(5) The public education system will provide equitable education opportunity to all students.
(f) The plan also shall include at least the following policy-oriented objectives:
(1)
Rigorous 21st Century curriculum and engaging instruction for all students. -- All students in West Virginia public schools should have access to and benefit from a rigorous 21st Century curriculum that develops proficiency in core subjects, 21st Century content, learning skills and technology tools. These students also should have that curriculum delivered through engaging, research-based instructional strategies that develop deep understanding and the ability to apply content to real-world situations;
(2)
A 21st Century accountability and accreditation system. -- The prekindergarten through twelve education system should have a public accrediting system that: (i) Holds local school districts accountable for the student outcomes the state values; and (ii) provides the public with understandable accountability data for judging the quality of local schools. The outcomes on which the system is based should be rigorous and should align with national and international standards such as the National Assessment of Educational Progress (NAEP), the ACT, the SAT and the Programme for International Assessment (PISA). The broad standards established for these outcomes should include a focus on: (A) Mastery of basic skills by all students; (B) closing the achievement gap among student subgroups; and (C) high levels of proficiency in a wide range of desired 21st Century measures and processes. The system for determining school and district accreditation should include school and district self-analysis and generate appropriate research-based strategies for improvement. It also should allow opportunities to create innovative approaches to instructional delivery and design. Thus, the system will incorporate processes for encouraging innovation, including streamlined applications for waivers to state board policy, financial support for successful initiatives and recognition of those practices that can be brought to a district or statewide scale. The primary goal of the accreditation system is to drive school improvement. This 21st Century accountability and accreditation system also should include the methods of addressing capacity set forth in section five, article two-e of this chapter;
(3)
A statewide balanced assessment process. -- State, district, school and classroom decisionmaking should be grounded in 21st Century balanced assessment processes that reflect national and international rigorous performance standards and examine student proficiency in 21st Century content, skills and technology tools. A balanced assessment system includes statewide summative assessments, local benchmark assessments and classroom assessments for learning;
(4)
A personnel allocation, licensure and funding process that aligns with the needs of 21st Century school systems and is supported by a quality coordinated professional development delivery system. -- Increased accountability demands, as well as the focus on 21st Century learning, require a reexamination of traditional approaches to personnel allocation, licensure and funding. Creating schools of the 21st Century requires new staffing roles and staffing patterns. It also requires ongoing professional development activities focused on enhancing student achievement and achieving specific goals of the school and district strategic plans. Thus, schools should have the ability to access, organize and deliver high quality embedded professional development that provides staff with in-depth sustained and supported learning. Effective school improvement should allow opportunity for staff to collectively learn, plan and implement curricular and instructional improvements on behalf of the students they serve;
(5)
School environments that promote safe, healthy and responsible behavior and provide an integrated system of student support services. -- Each school should create an environment focused on student learning and one where students know they are valued, respected and safe. Furthermore, the school should incorporate programs and processes that instill healthy, safe and responsible behaviors and prepare students for interactions with individuals of diverse racial, ethnic and social backgrounds. School and district processes should include a focus on developing ethical and responsible character, personal dispositions that promote personal wellness through planned daily physical activity and healthy eating habits consistent with high nutritional guidelines and multicultural experiences that develop an appreciation of and respect for diversity;
(6)
A leadership recruitment, development and support continuum. -- Quality schools and school systems of the 21st Century cannot be created without high quality leaders. Thus, West Virginia should have an aligned leadership professional development continuum that attracts, develops and supports educational leadership at the classroom, school and district level. This leadership development continuum should focus on creating: (i) Learning-centered schools and school systems; (ii) collaborative processes for staff learning and continuous improvement; and (iii) accountability measures for student achievement;
(7)
Equitable access to 21st Century technology and education resources and school facilities conducive to 21st Century teaching and learning. -- A quality educational system of the 21st Century should have access to technology tools and processes that enhance effective and efficient operation. Administrators should have the digital resources to monitor student performance, manage a variety of data and communicate effectively. In the classroom, every teacher in every school should be provided with the instructional resources and educational technology necessary to deliver the West Virginia content standards and objectives. Schools of the 21st Century require facilities that accommodate changing technologies, 21st Century instructional processes and 21st Century staffing needs and patterns. These school facilities should mirror the best in green construction and be environmentally and educationally responsive to the communities in which they are located;
(8)
Aligned public school with post-secondary and workplace readiness programs and standards. -- An educational system in the 21st Century should be seen as a continuum from the public school (prekindergarten through twelve) program through post-secondary education. In order to be successful in a global competitive marketplace, learning should be an ongoing, life-long experience. Thus, the public schools and the institutions of post-secondary education in West Virginia should create a system of common standards, expectations and accountability. Creating such an aligned system will enhance opportunities for success and assure a seamless educational process for West Virginia students; and
(9)
A universal prekindergarten system. - A high quality, universal prekindergarten system should be readily available to every eligible student. The system should promote oral language and preliteracy skills and reduce the deficit of these foundational skills through proactive, early intervention. Research indicates that universal prekindergarten systems improve graduation rates, reduce grade level retentions and reduce the number of special education placements. Therefore, local school systems should create the supports and provide the resources to assure a quality prekindergarten foundation is available to all eligible students.
(g) In addition to the policy-oriented objectives set forth in subsection (f) of this section, the plan established pursuant to this section also shall include at least the following performance oriented objectives:
(1) All children entering the first grade will be ready for the first grade;
(2) All students will have equal education opportunity;
(3) Student performance on national measures of student performance will equal or exceed national averages and (2) The performance of students falling in the lowest quartile on national and international measures of student performance will improve by fifty percent;
(4) (3) Ninety percent of ninth graders will graduate from high school;
(5) High school graduates will be fully prepared for college, other post-secondary education or gainful employment. The number of high school graduates entering post-secondary education will increase by fifty percent. and
(6) All working age adults will be functionally literate.
(4) By two thousand twelve, the gap between the county with the lowest college-going rate and the state average as of the effective date of this act will decrease by fifty percent and the college- going rate of the state will equal the college-going rate of the member states of the Southern Regional Education Board; and
(5) By two thousand twenty, the gap between the county with the lowest college-going rate and the state average for school year two thousand twelve will decrease by fifty percent and the college-going rate of the state will exceed the college-going rate of the member states of the Southern Regional Education Board by five percentage points.
The intent of the Governor, the Legislature and the state board is to pursue the accomplishment of these goals through strategies which focus on: (i) Early childhood development; (ii) improving the quality of teaching; (iii) technology and learning; (iv) helping at-risk students; (v) work force preparation; and (vi) restructuring and accountability in the education system.
(c) The state board shall report progress toward meeting and achieving the goals, as set forth in subsection (b) of this section, to the Governor and the Legislature at the beginning of the legislative session in each of the next four years, beginning in the year one thousand nine hundred ninety-seven, and shall include in such report how the legislative priorities of the board address attainment of the goals.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-5c. Process for improving education council established; membership; expenses; meetings; powers.

(a) Process for improving education council. -- There is hereby established the process for improving education council for the purpose of providing opportunities for consultation among state policy leaders on the process for improving education, including, but not limited to, determination of the things that students should know and be able to do as the result of a thorough and efficient education, the performance and progress of students toward meeting the high quality standards established by the State Board, adopting goals, objectives, strategies, indicators and benchmarks for public education and any further improvements necessary to increase the capacity of schools and school systems to deliver a thorough and efficient education.
(b) Council membership. -- The Legislative Oversight Commission on education accountability, together with the Governor, ex officio, or the Governor's designee, and the Chancellor of the Higher Education Policy Commission, ex officio, or the chancellor's designee, the Chancellor for Community and Technical College Education, ex officio, or the chancellor's designee, and the State Superintendent, ex officio, or the superintendent's designee, comprise the process for improving education council. Ex officio members are entitled to vote. The Governor or the Governor's designee shall convene the council, as appropriate, and shall serve as chair. The council may meet at any time at the call of the Governor or the Governor's designee.
(c) Compensation. -- Members of the council shall serve without compensation, but shall be reimbursed as provided by law by their respective agencies for all reasonable and necessary expenses actually incurred in the performance of their official duties under this section upon presentation of an itemized sworn statement of their expenses.
(d) Powers of the council. --
The council has the following powers:
(1) To meet and consult with the state board, or their designees, and make recommendations on issues related to student, school and school system performance. The following steps are part of the consultation process:
(A) The state board shall notify each member of the council whenever the state board proposes to amend its rules on any of the following issues:
(i) High quality education standards and efficiency standards established pursuant to section five of this article;
(ii) Indicators of efficiency established pursuant to section five of this article; and
(iii) Assessment and accountability of school and school system performance and processes established pursuant to section five of this article.
(B) The notice to be given pursuant to paragraph (A) of this subdivision shall contain a summary and explanation of the proposed changes, including a draft of the proposal when available, and shall be sent at least fifteen days prior to filing the proposal with the Secretary of State for public comment.
(C) If the Governor, or the Governor's designee, believes it is necessary for the council to meet and consult with the State Board, or its designees, on changes proposed to any of the issues outlined in subdivision (1) of this subsection, he or she may convene a meeting of the council.
(D) If both the President of the Senate and the Speaker of the House of Delegates believe it is necessary for the council to meet and consult with the state board, or its designees, they shall notify the governor who shall convene a meeting of the council.
(E) If the either chancellor, or the chancellor's designee believes their respective designees, or the state superintendent, or the superintendent's designee, believes that it is necessary for the council to meet and consult with the state board, or its designees, he or she may request the Governor to convene a meeting of the council.
(2) To require the state board, or its designees, to meet with the council to consult on issues that lie within the scope of the council's jurisdiction;
(3) To participate as observers in any on-site review of a school or school system conducted by the office of education performance audits; and
(4) To authorize any employee of the agencies represented by council members to participate as observers in any on-site review of a school or school system conducted by the office of education performance audits.
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1. GOVERNANCE.
§18B-1-1a. Legislative intent; findings; establishment of state goals for higher education and education; creation of partnership to achieve state goals and objectives.

(a) It is the intent of the Legislature in enacting this section to establish state goals for public higher education which benefit the citizens of the State of West Virginia.
(b) It is further the intent of the Legislature that this section be read and implemented in conjunction with the accountability system established in article one-d of this chapter and that any reference to this section in this code includes the provisions of that article.
(c) Findings. -- The Legislature finds that post-secondary education is vital to the future of West Virginia. For the state to realize its considerable potential in the Twenty-First Century, it must have a system for the delivery of post-secondary education which is competitive in the changing national and global environment, is affordable for the state and its citizenry and has the capacity to deliver the programs and services necessary to meet regional and statewide needs.
The Legislature further finds that it is vitally important for young people entering the workforce to have the education and skills to succeed in today's high-technology, knowledge-based economy. It is equally important for working-age adults who are the majority of the current and potential workforce also to possess the requisite education and skills to compete successfully in the workplace and to have the opportunity to continue learning throughout their lives. The future of the state rests not only on how well its youth are educated, but also on how well it educates its entire population of any age.
The Legislature further finds that providing access to a high-quality and affordable post-secondary education is a state responsibility and, while states spent more than seventy billion dollars on public higher education in two thousand six, they are not maximizing that investment. The Legislature recognizes the efforts of the National Conference of State Legislatures' Blue Ribbon Commission on Higher Education in producing a report to assist the states in higher education policymaking. According to the commission report, 'Transforming Higher Education: National Imperative -- State Responsibility', the United States is losing its competitive advantage in a new, high-tech, highly mobile global economy. This lack of competitiveness is a matter of the highest urgency for federal and state policymakers and higher education is at the center of this discussion. The report further states that 'higher education is both the problem and the solution' because the nation has failed to focus on how higher education energizes American competitiveness and revitalizes the states. Pursuant to these findings, the commission made some specific recommendations addressed to the states which include the following:
(1) Define clear state goals;
(2) Identify your state's strengths and weaknesses;
(3) Know your state demographic trends for the next ten to thirty years;
(4) Identify a place or structure to sustain the public policy agenda;
(5) Hold institutions accountable for their performance;
(6) Rethink funding formulas and student aid;
(7) Make a commitment to access, success and innovation;
(8) Encourage partnerships;
(9) Give special attention to adult learners; and
(10) Focus on productivity.
All of these recommendations are useful in providing policy guidance and have been given careful consideration in the development of this section and article one-d of this chapter.
(d) Establishment of state goals. -- In recognition of its importance to the citizens of West Virginia, the Legislature hereby establishes the following goals for public higher education in the state:
(1) The ultimate goal of public education is to enhance the quality of life for citizens of the State of West Virginia.
(2) The overall focus of public education is on developing and maintaining a process of lifelong learning which is as seamless as possible at all levels, encourages citizens of all ages to increase their knowledge and skills and provides ample opportunities for them to participate in public higher education.
(3) Higher education collaborates with public education and other providers to offer education opportunities:
(A) To individuals of all ages and socioeconomic backgrounds in all areas of the state; and
(B) To overcome financial barriers to participation for both traditional and nontraditional students.
(4) Higher education seeks to enhance state efforts to diversify and expand the economy by focusing available resources on programs and courses which best serve students, provide the greatest opportunity for job creation and retention and are most supportive of emerging high-technology and knowledge-based businesses and industries.
(5) Higher education creates a learning environment that is student-friendly and that encourages and assists students in the completion of degree requirements, certifications or skill sets within a reasonable period of time.
(6) The learning environment expands participation for the increasingly diverse student population and responds to the needs of the current workforce and other nontraditional students.
(7) Through the establishment of innovative curricula and assessment efforts, state institutions of higher education ensure that students graduate from nationally recognized and accredited programs and meet or exceed national and international standards for performance in their chosen fields as evidenced through placement and professional licensure examinations.
(8) Higher education promotes academic research and innovation to achieve measurable growth in West Virginia's knowledge-based economic sector.
(9) State institutions of higher education emphasize productivity and strive to exceed the performance and productivity levels of peer institutions. In return, and within the constraints of fiscal responsibility, the state seeks to invest in institutions so that they may adequately compensate faculty, classified employees and other employees at a competitive level to attract and retain high quality personnel.
(10) State institutions of higher education are committed to a shared responsibility with faculty, staff, students and their communities to provide access to the knowledge and to promote acquisition of the skills and abilities necessary to establish and maintain physical fitness and wellness.
(A) Programs that encourage healthy lifestyles are essential for the vibrancy of the institutions of higher education, for the well-being of the communities they serve and for the state as a whole.
(B) Increasing the fitness levels of adults on college and university campuses is critically important for the people of West Virginia, not only for disease prevention, but also, and perhaps most importantly, to enhance the overall quality of life.
(C) While individuals must bear the primary responsibility for their own health, it is imperative that the institutions provide appropriate education and support focused on enriching and expanding the short and long term views and attitudes towards physical activity, understanding the principles of wellness and their application to a healthy lifestyle, understanding what components are a necessary part of an all-round healthy lifestyle and learning how to set and achieve realistic goals aimed at establishing healthy habits for the benefit of long-term health and well-being.
(e) Education partnership to achieve state goals and objectives. -- If public institutions of higher education are to provide services that meet the needs of state citizens as outlined in this section and article one-d of this chapter, then West Virginia must create and participate in a partnership across various education organizations that recognizes the valuable contributions each member of the group can make. In addition to public education as outlined in section four, article one, chapter eighteen of this code, and in addition to the State of West Virginia, key members of this partnership include the state institutions of higher education, the Council for Community and Technical College Education and the Higher Education Policy Commission.
(1) State institutions of higher education. -- The institutions are the cornerstone of efforts to provide higher education services that meet the needs of state citizens. To varying degrees, and depending upon their missions, these institutions serve the state in three major ways:
(A) Instruction. -- By providing direct instruction to students along with the student services necessary to support the instructional mission. These services have two primary goals:
(i) To produce college graduates who have the knowledge, skills and desire to make valuable contributions to society; and
(ii) To provide opportunities for citizens to engage in lifelong learning to enhance their employability and their overall quality of life.
(B) Public service. -- By providing an occupational home for experts in a variety of fields and by serving as the educational home for students. In these capacities, institutions create a large and varied pool of high quality human resources capable of making valuable contributions to business and industry, local and state governments and communities. The following are examples of the types of public service that higher education institutions have to offer:
(i) Workforce development, primarily through community and technical colleges, to meet the immediate and long-term needs of employers and employees;
(ii) Technical assistance to state and local policymakers as they work to address challenges as diverse as ensuring that West Virginia's citizens receive quality health care, assisting in the development of a solid transportation infrastructure and ensuring that public school teachers have enriching professional development opportunities; and
(iii) Opportunities to learn and serve in local communities, to teach civic responsibility and to encourage civic engagement.
(C) Research. -- By conducting research at state institutions of higher education, particularly Marshall University and West Virginia University, to enhance the quality of life in West Virginia in the following ways:
(i) Targeting cutting-edge research toward solving pressing societal problems;
(ii) Promoting economic development by raising the level of education and specialization among the population; and
(iii) Creating jobs through development of new products and services.
(2) The Council for Community and Technical College Education and the Higher Education Policy Commission. -- In their role as state-level coordinating boards, the council and commission function as important partners with state policy leaders in providing higher education that meets state needs. The council and commission provide service to the state in the following ways:
(A) By developing a public policy agenda for various aspects of higher education that is aligned with state goals and objectives and the role and responsibilities of each coordinating board;
(B) By ensuring that institutional missions and goals are aligned with relevant parts of the public policy agenda and that institutions maximize the resources available to them to fulfill their missions and make reasonable progress toward meeting established state goals;
(C) By evaluating and reporting on progress in implementing the public policy agenda;
(D) By promoting system efficiencies through collaboration and cooperation across institutions and through focusing institutional missions as appropriate; and
(E) By conducting research, collecting data and providing objective recommendations to aid elected state officials in making policy decisions.
(3) State of West Virginia. -- Elected state officials represent the citizens of West Virginia and are critical partners in providing quality higher education. In this context, these state-level policymakers serve the state in the following ways:
(A) By establishing goals, objectives and priorities for higher education based on a thoughtful, systematic determination of state needs;
(B) By providing resources necessary to address state goals, objectives and priorities for higher education; and
(C) By providing incentives for and removing barriers to the achievement of state goals, objectives and priorities.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-1. Legislative intent and purpose; short title; rules required.
(a) The intent of the Legislature in the enactment of this article is to outline and organize the elements of accountability for public higher education into an effective, coherent system to provide guidance to the state institutions of higher education, the commission and the council and to clarify the roles, relationships and responsibilities between and among these entities, the citizens of West Virginia and elected state officials. The main purposes of the accountability system are as follows:
(1) To develop agreement on higher education goals, objectives and priorities through negotiation and consensus-building between elected officials acting on behalf of the citizens of the state, and the commission and the council and institutions which receive public funds and provide education services;
(2) To create a seamless education system and hold boards and institutions accountable for meeting state goals and objectives.
(3) To provide a data-driven, step-by-step process to determine the progress of public higher education in addressing established goals, objectives and priorities;
(4) To promote cooperation and collaboration among all entities which are involved in the delivery of public education in West Virginia; and
(5) To provide for generation, collection and dissemination of data on which sound state-level policy decisions can be based. Possible uses of this data include the following:
(A) Identifying institutions and systems that increase quality and productivity; and
(B) Creating a mechanism to target a portion of state appropriations to institutions and systems based on performance in meeting established state goals and objectives.
(b) This article, together with section one-a, article one of this chapter and section four, article one, chapter eighteen of this code shall be known as and may be cited as Vision 2020: An Education Blueprint for Two Thousand Twenty.
(c) By the first day of October, two thousand eight, the commission and the council shall propose rules for legislative approval in accordance with the provisions of section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code concerning the accountability system for higher education outlined in this article.
(1) The commission and the council may propose rules jointly or separately and may choose to address all of the accountability system in a single rule or may propose additional rules to cover specific elements.
(2) At a minimum, the rules shall address the respective responsibilities of the various parties, the development of statewide master plans, the process of entering into institutional and state compacts, performance indicators and institution and state-level reporting to ensure that higher education is accountable to the citizens of West Virginia.
§18B-1D-2. Definitions.
(a) General. -- For the purposes of this article and section one-a, article one of this chapter, terms have the meaning ascribed to them in section two, article one of this chapter, unless the context in which the term is used clearly requires a different meaning or a specific definition is provided in this section.
(b) Definitions. --
(1) 'Accountability system for public higher education' or 'accountability system' means all research, reports, documents, data and any other materials, the collection, analysis and dissemination of which are necessary or expedient to accomplish the purposes of this article or section one-a, article one of this chapter. The system includes legislative goals, objectives and priorities; public policy agendas; statewide master plans; state and institutional compacts; implementation plans; institutional mission statements and master plans; and the statewide report card.
(2) 'Education partnership to achieve state goals and objectives' or 'education partnership' means the formal and informal working relationships established between and among the State of West Virginia, the commission, the council, the State Board of Education and State Department of Education and the state institutions of higher education for the purpose of achieving state goals and objectives.
(3) 'Functional literacy rate' means the percentage of adults over the age of seventeen who are able to read beyond a fourth grade level and interpret basic information from sources such as road signs, job applications, newspaper articles and food and medicine labels.
(4) 'Goals' means those long-term public purposes which are the desired and expected end result for which public higher education is established.
(5) 'Implementation plan' means a document developed within the higher education community that identifies a series of objectives, sets forth performance indicators that can be used to determine if objectives are being achieved, outlines strategies for accomplishing the objectives and identifies benchmarks for evaluating progress in accomplishing the objectives over the life cycle of the plan.
(6) 'Institutional compact' means a formal, written contract between either the commission or council and a state institution of higher education under its jurisdiction expressing intent to accomplish state and system goals and objectives.
(7) 'Institutions under the jurisdiction of the commission' relative to the accountability system established by this article and section one-a, article one of this chapter means Bluefield State College, Concord University, Fairmont State University, Glenville State College, Marshall University, Shepherd University, West Liberty State College, the West Virginia School of Osteopathic Medicine, West Virginia State University and West Virginia University, including Potomac State College of West Virginia University and the West Virginia University Institute of Technology.
(8) 'Institutions under the jurisdiction of the council' relative to the accountability system established by this article and section one-a, article one of this chapter means Blue Ridge Community and Technical College, the Community and Technical College at West Virginia University Institute of Technology, Eastern West Virginia Community and Technical College, Marshall Community and Technical College, New River Community and Technical College, Pierpont Community and Technical College, Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College, West Virginia State Community and Technical College and West Virginia University at Parkersburg.
(9) 'Net college costs' means the total cost of tuition, room and board minus the amount of financial aid a student receives.
(10) 'Objectives' means the ends to be accomplished or attained within a specified period of time for the purpose of meeting the established goals.
(11) 'Priority' or 'priorities' means the order in which objectives are to be addressed for the purpose of achieving state goals.
(12) 'Strategy' or 'strategies' means specific activities carried out by public higher education which are directed toward accomplishing specific objectives.
(13) 'Statewide master plan' or 'system master plan' means a document developed by the council or commission that sets forth system goals, objectives and strategies and is aligned with, but not limited to, meeting state goals, objectives and priorities.
(14) 'STEM courses and programs' means curricula leading to a degree or other recognized credential in the science, technology, engineering and mathematics fields of study or specialization.
(15) 'State compact' means a formal, written agreement between the council and/or the commission and at least one other member of the education partnership to achieve state goals and objectives where significant collaboration and commitment of resources between the parties to the agreement is required in order to achieve the desired results.
§18B-1D-3. State vision for public higher education; findings; establishment of objectives.
(a) The Legislature finds that availability of high-quality post-secondary education is so important to the well-being of the citizens of West Virginia that it is in the best interests of the state to focus attention on areas of particular concern and within those areas to specify objectives and priorities that must be addressed by two thousand twenty. The purpose of these objectives and priorities is to achieve the broad-based goals for public higher education established in section one-a, article one of this chapter. Areas of special concern to the Legislature include economic and workforce development; education access and affordability; innovation; student preparation; degree and/or program completion; intra- and inter-system cooperation and collaboration; research; and teaching and learning.
(1) Economic and workforce development. --
(A) Diversifying and strengthening the economy of the state;
(B) Providing incentives to systems and institutions to focus attention on those courses and programs which create and retain jobs in the state, especially among the emerging high-technology, knowledge-based businesses and industries.
(2) Access and affordability. --
(A) Maintaining geographic access while eliminating unnecessary duplication;
(B) Enhancing education opportunities for the widest range of state citizens:
(1) By establishing tuition and fee levels for in-state students that do not inhibit access to public education nor cause students to incur excessive debt. This is particularly important in West Virginia where about two-thirds of all students attending college are enrolled in public higher education institutions and where families devote a very large share of their incomes to pay the cost of education. The share of costs paid by families remains very high even after adjusting for the impact of financial aid; and
(2) By establishing tuition and fee rates for out-of-state students at levels which, at a minimum, cover the full cost of instruction unless doing so is inconsistent with a clearly delineated public policy goal established by the Legislature, the commission or the council.
(3) Innovation. -- Devise innovative programs, delivery modes, partnerships, research initiatives, curricula and pedagogy to achieve the needs of the state and its citizens and carry out the mission and objectives of the state institutions of higher education. Methods include aligning entrepreneurial efforts, research, and partnerships with established state goals.
(4) Student preparation. -- Ensure that potential students are academically prepared for college and that graduates are adequately prepared for careers or further education.
(5) Degree and/or program completion. -- Despite significant improvement over the past decade, fewer than twenty percent of state residents hold a bachelor's degree. This shortage of highly educated, highly qualified workers substantially limits the state's ability to compete in the knowledge-based economy.
(6) Collaboration and cooperation. -- Deliver education services to the extent possible through collaboration, coordination and brokering, with particular emphasis on the need for a seamless relationship between public and post-secondary education.
(7) Research. -- Develop a greater research capacity within public higher education to enhance West Virginia in the eyes of the larger economic and education community, develop greater specialized expertise in high technology and policy fields, create more employment opportunities within the state and provide a basis for improved capacity to compete in the new economy through research focused on meeting state needs.
(8) Teaching and learning. -- Develop admission and exit standards for students and emphasize professional staff development, program assessment and evaluation and other incentives to improve teaching and learning. Ensure access to stable and continuing graduate-level programs in every region of the state, particularly in STEM subject areas and teacher education related to teaching within a subject area to improve teacher quality.
(b) Vision 2020: Objectives for public higher education. -- In view of the findings outlined in subsection (a) of this section, the Legislature hereby establishes the following objectives to be addressed as highest priorities beginning on the effective date of this article through development of compacts and/or implementation plans between and among members of the education partnership as provided in subsection (e), section one-a, article one of this chapter. The following is the legislative vision for the years two thousand eight through two thousand twenty:
(1) Objective. -- Develop a state-level facilities plan and funding mechanism to reduce the obligation of students and parents to bear the cost of higher education capital projects and facilities maintenance.
(A) Problem statement. --
(i) West Virginia is one of the very few states in the nation which does not address higher education capital project and facilities maintenance needs through a statewide plan.
(ii) The burden of paying for capital projects and deferred maintenance is placed on students and their families through collection of capital fees at the institution level and contributes significantly to the poor grade West Virginia receives each year in the category of 'Affordability' on 'Measuring Up: The National Report Card on Higher Education'.
(iii) Net college costs for low- and lower-middle-income students to attend state community and technical colleges and four-year colleges and universities average approximately forty-five percent of their annual family income.
(iv) The high cost of capital fees contributes directly to the amount of debt incurred by students during their college years and the necessity to repay student loans severely limits career choices and areas of residence after graduation.
(B) Expected outcomes. -- Success in meeting this goal can be measured in part by benchmarks which include the following:
(i) Development by the council and commission of a compact with elected state officials to fund a significant portion of higher education capital project needs from dedicated state revenues;
(ii) Development by the council and commission of a system to establish priorities for institution capital projects in a manner that is consistent with state public policy goals for higher education;
(iii) Implementation of facilities maintenance plans by institutions to ensure that maintenance needs are not deferred inappropriately;
(iv) Efficient use of existing classroom and other space by institutions:
(I) New capital funding is applied effectively to projects at institutions that have a demonstrated need for new facilities and major renovations; and
(II) The cost of operating and maintaining the facilities and physical plants of institutions are appropriate for the size and mission of the institution; and
(v) Capital and facilities maintenance planning that gives careful consideration to the recommendations arising from the study mandated by section nine, article fourteen of this chapter.
(2) Objective. -- Increase academic rigor and improve learning at higher education institutions.
(A) Problem statement. -- West Virginia has made significant progress on certain indicators within the category of student learning, but lags far behind national and regional averages on others.
(i) The state compares very well in workforce preparation as reflected in professional licensure examinations, ranking among the top five states in the country. More West Virginia graduates take these examinations than is typical nationally and the passage rate is at the national average.
(ii) The state also ranks well above the national average passage rate on the state teacher's examination when compared to other states; however, there is serious cause for concern when the state is compared to the national benchmark in preparing students for graduate study.
(I) West Virginia ranks more than fifty percentage points below the national average in preparing students to take and pass graduate admissions examinations.
(II) Fewer West Virginia graduates take these examinations than is typical nationally and the proportion earning competitive scores is only about seventy-five percent of the national average.
(B) Expected outcomes. -- Success in meeting this goal can be measured in part by benchmarks which include the following:
(i) State institutions of higher education develop or use existing nationally normed assessments of student learning outcomes. Data generated through these assessments are analyzed and the results applied by the institutions to improve the quality of undergraduate general education programs; and
(ii) Implementation plans at the system and institution levels are developed to improve student preparation for graduate study and to expand graduate and professional education, where appropriate.
(3) Objective. -- Increase the percentage of entering students who persist to receive a degree, a certificate or an industry-recognized credential.
(A) Problem statement. --
(i) This goal is particularly important to West Virginia where only about one person in five holds an associate degree or higher.
(ii) The lack of a well-trained workforce is reflected in the most recent score of forty-one received by the state on the nationally recognized New Economy Index which measures the extent to which a state is prepared to participate in knowledge-based industries. This low score places the state well below the national benchmark of sixty on the index.
(iii) State institutions of higher education have placed a greater emphasis on student recruitment than on student retention and completion. This strategy alone cannot be successful in meeting state needs for the following reasons:
(I) The number of state high school graduates is expected to decline over the next several years; therefore, institutions must improve their performance in retaining the students who enroll.
(II) West Virginia is among the leading states in the percentage of first-year students at community colleges who return for their second year and large percentages of freshmen at four-year colleges and universities return for their sophomore year; however, when compared with other states, only a small percentage of these students actually persist to earn a bachelor's degree or associate degree within six years.
(III) The state performs poorly on international comparisons of enrolled students who complete certificates or degrees, trailing behind other industrialized and even some third world nations.
(IV) While the state college-going rate has improved, most state institutions have made only marginal progress over the past decade in increasing the percentage of students who persist to obtain a degree or certificate.
(B) Expected outcomes. --
(i) Enhanced quality of life for West Virginians including increased level of per capita income; and
(ii) Increased economic development opportunities by expanding existing high-technology and knowledge-based businesses and industries and attracting new ones which demand highly qualified professionals.
(4) Objective. -- State institutions of higher education, particularly community and technical colleges, make maximum effort to recruit and retain adults twenty-five years old or over.
(A) Problem statement. --
(i) The percentage of West Virginia's working-age adults enrolled part-time in college-level education or training is very low and the state has experienced one of the largest declines in the nation on this measure over the past twelve years.
(ii) A large part of preparing workers for the Twenty-First Century and for a high-quality style of life hinges upon providing opportunity for adults to acquire a series of skill sets in addition to obtaining a degree or other credential.
(iii) A major focus for community and technical colleges is upon providing programs to upgrade employee skills through obtaining industry credentials. Currently, however, only Certificate program degrees (one-year) and associate degrees (two-year) are counted for funding purposes even though other types of credentials often are as important in meeting workforce development goals as providing degree programs.
(B) Expected outcomes. --
(I) Provide programs of interest to nontraditional students including those that afford them the opportunity to obtain certificates and credentials, enhance career development and acquire new skill sets;
(II) Develop a high-visibility marketing program which makes adults aware of the opportunities available to them and assists them in entering or reentering the learning environment;
(III) Provide for lower cost tuition and fee rates, particularly at the community and technical colleges, and/or greater access to financial aid for adult full- and part-time students.
(IV) Develop open admissions policies which provide opportunities for adults to participate in public post-secondary education beginning at any level of preparedness. Most working-age adults cannot or will not 'go back to high school' in order to prepare themselves to participate in higher education.
(V) Tailor institutional policies to meet the needs of adults, recognizing that these individuals have responsibilities that are different from those of traditional-aged college students. High on this list of needs are flexible class schedules to accommodate work obligations and waiving dorm residency requirements.
(5) Objective. -- Provide incentives to state institutions of higher education to encourage emphasis on STEM courses and programs leading to degrees in the high-demand fields of science, technology, engineering and mathematics and to encourage collaboration with public education to stimulate interest and prepare students to succeed in these fields.
(A) Problem statement. --
(i) STEM courses often are more expensive to deliver than traditional programs; therefore, institutions may be reluctant to start or expand programs in these areas because of anticipated cost;
(ii) Institutions have difficulty recruiting and retaining faculty members in STEM areas because of competition from surrounding states and other market forces;
(iii) There is insufficient communication between STEM teachers in public education, STEM faculty in higher education and professionals employed in STEM-related careers such as engineering;
(iv) Many students have not taken sufficiently rigorous high school courses to allow them to succeed in post-secondary STEM courses and programs. A large percentage of students enrolled in higher education STEM programs either withdraw from the institution or change majors within the first year; and
(v) The transition from high school to college is difficult for many high school students who lack a family role model to provide guidance relevant to the higher education experience.
(B) Expected outcomes. --
(i) Increased capacity for high quality instruction across public higher education;
(ii) Increased student access to high quality undergraduate and graduate research opportunities in science, technology, engineering and mathematics;
(iii) Enhanced economic development opportunities through increased numbers of highly-qualified professionals available to business and industry;
(iv) Development of a consistent and effective forum for communication among STEM faculty in public and higher education and relevant professional communities to address the continuing needs of students, educators and industry;
(v) Increased percentage of high school students who have access to and take advantage of rigorous STEM courses;
(vi) Alignment of STEM curricula between public and higher education;
(vii) Development of a finance formula that gives greater weight to courses taken in high-cost disciplines and/or those that are critical to the state economy; and
(viii) Creation of a STEM coordinator position within the faculty of each state institution of higher education to provide outreach to secondary schools, to mentor freshman students and to collaborate with coordinators at other institutions. Because of the size of the student body, the two research universities may need to create coordinator positions specific to certain high-demand STEM disciplines such as engineering and computer science.
(6) Objective. -- Develop a stable funding stream for state institutions of higher education to pay for essential programs which are expensive to deliver, are in high demand and/or are critical to the state's capacity to replace an aging workforce as employees retire. This objective has a particular impact on community and technical colleges which deliver high cost technical programs.
(A) Problem statement. --
(i) An educated and technically skilled work force is vital to the state's ability to be competitive in the global market place. Currently, West Virginia's employers must struggle to find a sufficient number of highly qualified workers to fill the jobs they have available; and
(ii) The majority of technical occupations require the delivery of equipment-intensive, high-cost programs that state institutions of higher education, especially community and technical colleges, lack the capacity to provide.
(B) Expected outcomes. --
(i) State institutions delivering community and technical college education focus on expanding and/or implementing technical programs to meet the needs of high-demand, high-wage occupations;
(ii) Funding priorities for community and technical colleges focus on developing and maintaining high-cost technical programs;
(iii) Creation of a strategy to fund the replacement, upgrading and purchase of equipment to implement and/or maintain technical education programs; and
(iv) Support critical, non credit programming by incorporating the number of contact hours delivered into a formula to distribute funding to community and technical colleges.
(7) Objective. -- Develop a mechanism to assure uniform delivery of community and technical college education for all regions of the state.
(A) Problem statement. -- The average education attainment rate in West Virginia lags eleven percent behind the national average in part because delivering education programs to the state's adult, place-bound and rural populations presents significant challenges.
(B) Expected outcomes. --
(i) All state citizens have access to a minimum of two years of college education regardless of their place of residence within the state.
(ii) The state institutions increase the innovative use of technology and distance education to provide general and technical education access in sparsely populated rural areas.
(iii) Creation of a seamless education system and uniform transfer of credits with special attention to transfers between community and technical colleges and four-year institutions;
(iv) Appropriate use of adjunct faculty; and
(v) Where feasible, use of facilities in public schools, technical centers and other public facilities as classroom space.
(8) Objective. -- Develop greater research capacity throughout public higher education, with a special focus on the state's two doctoral degree-granting universities.
(A) Problem statement. --
(i) West Virginia ranks near the bottom among all states in the amount of federal and privately funded sponsored research it receives. Historically, only the National Science Foundation's Experimental Program to Stimulate Competitive Research (EPSCOR) has focused on building research capacity in the state, but if West Virginia is to benefit from the increased economic opportunity, better jobs and higher standard of living associated with more STEM professionals in the population, the state must invest more to build its research capacity; and
(ii) Low research capacity results in low levels of intellectual property creation, patenting and licensing of commercial property.
(B) Expected outcomes. --
(i) Partnering between and among higher education institutions in West Virginia and between state institutions and larger, resource-rich higher education institutions outside the state;
(ii) Developing an institutional and/or statewide research niche and focusing resources on research that contributes most to meeting state needs;
(iii) Leveraging scarce resources to make steady, targeted investments in research in niche areas where the state can be a real player at a competitive level;
(iv) Developing specific research expertise within the two state doctoral degree-granting universities to generate and analyze data to provide policy recommendations. The areas of focus include funding strategies for higher education, demographic trends and methods to determine and meet workforce development needs by anticipating job creation and credential requirements;
(v) Improving communication among the research branches of higher education institutions, including identification of mutually complementary areas of interest to increase funding opportunities and collaboration on intellectual property issues; and
(vi) Focusing on economic development through commercial applications of research and recruitment of new research faculty members for this purpose.
(9) Objective. -- Increase the percentage of functionally literate adults in each region of the state.
(A) Problem statement. --
(i) The literacy attainment of a population is defined at its most basic level as the percentage of those individuals over the age of fifteen who can read and write, but such a definition does not address the realities of the Twenty-First Century. The National Literacy Act of 1991 and the national Workforce Investment Act of 1998 both define literacy more broadly as 'an individual's ability to read, write, speak in English, compute and solve problems at levels of proficiency necessary to function on the job, in the family of the individual and in society'.
Approximately twenty percent of the adult population in West Virginia cannot meet this definition of functional literacy. One adult out of every five in the state lacks the basic literacy skills needed to succeed at work, to enter the learning environment of post-secondary education, to acquire advanced occupational training or to participate in preparing his or her own children to learn.
(ii) The high rate of illiteracy in West Virginia not only handicaps adults in seeking employment and achieving their goals for their own quality of life, but also has serious implications for the future of their children and for the state.
There is a direct, positive correlation between the reading scores of children and the education level of their parents. The National Assessment of Education Progress (NAEP) has concluded that youngsters whose parents are functionally illiterate are twice as likely to become functionally illiterate adults.
(iii) When the level of functional illiteracy in West Virginia is compared to the requirements for high-demand occupations, the negative consequences for the economy of the state become obvious. The International Adult Literacy Survey (IALS) established a scale of five levels which is used extensively to measure the literacy attainment of adults. When this scale was used to compare the literacy requirements of projected high-growth occupations with those in declining occupations such as certain types of manufacturing, researchers found that level three literacy is required for the new jobs, while level two is sufficient for the jobs in the declining occupations. Therefore, workers displaced from jobs in declining occupations as well as those seeking to enter or reenter the work place must possess literacy skills a full level higher than those required for workers only a few years ago. Documents such as manuals outlining standard operating procedures, health and safety manuals, leave forms and retirement options that they encounter daily require a level of literacy well above level two.
(iv) A highly skilled and literate work force is essential to the success of state businesses and industry. A ten percent increase in the average education of all workers, equivalent to approximately one additional year of schooling, is associated with an increase of about nine percent in the productivity of that labor force. Additionally, workers who lack literacy skills cannot provide the data and feedback that companies need to make informed business decisions. A company whose employees cannot record reliable production data cannot assess its performance from year to year or determine how well it is meeting its long range goals and objectives.
(v) The rate of functional illiteracy in West Virginia also has a direct impact on the health of state citizens. Residents with low literacy skills have difficulty in many health areas including the following:
(I) Understanding the correct way to take medication, interpret test results or perform simple self-testing such as taking temperatures or checking blood glucose levels;
(II) Understanding and following directions given by physicians or the written instructions provided with prescription or over-the-counter medication for themselves or for their children;
(III) Reading and understanding information on food labels and other nutrition information to make sound decisions necessary to establish and maintain healthy lifestyles; and
(IV) Furnishing correct information in emergencies to medical providers about illnesses, surgeries and medications or understanding how to fill out insurance forms and other health-related documents.
(B) Expected outcomes. --
(i) Develop greater access and capacity to deliver literacy and remedial education, workforce development training and other higher education services to place-bound adults primarily through the community and technical colleges;
(ii) Increase the percentage of the working age population who participate in higher education, either full or part time;
(iii) Establish a statewide mechanism to collect data to provide a baseline for measuring progress toward meeting the goal of functional literacy for all working-age adults and to serve as a framework for setting priorities, identifying gaps in service and targeting services to key populations, industries, economic sectors and geographic areas;
(iv) Develop programs that include, at a minimum, the following:
(A) Learning opportunities within a real-life context, such as workplace and family literacy programs;
(B) Recognition of the diversity of individual abilities, skill levels, circumstances and life goals; and
(C) Strategies to access, promote and accommodate a variety of instructional methods and learning styles.
(v) Develop a culture committed to life-long learning by creating literacy-rich environments wherever people live and work that are capable of influencing changes in individual behavior; and
(vi) Create partnerships among schools, employers, workers, governments and communities to achieve these objectives and mechanisms to collect, interpret and disseminate data to assist policymakers in determining the appropriate level of resources essential to support lifelong learning systems.
§18B-1D-4. Responsibilities of Higher Education Policy Commission and Council for Community and Technical College Education; development of public policy agendas; reports; institutional responsibilities.

(a) It is the responsibility of the commission, in cooperation with the council, to develop, oversee and advance the public policy agenda mandated by section four, article one-b of this chapter to address the goals and objectives established pursuant to this article and section one-a, article one of this chapter including, but not limited to, aligning state and institutional compacts, master plans, implementation plans and institutional missions with state goals and objectives to accomplish the purposes of this article.
(b) It is the responsibility of the council, in cooperation with the commission when applicable, to develop, oversee and advance the public policy agenda mandated by section six, article two-b of this chapter to address the goals and objectives established pursuant to this article and section one-a, article one of this chapter including, but not limited to, aligning state and institutional compacts, master plans, implementation plans and institutional missions with state goals and objectives to accomplish the purposes of this article.
(c) It is further the responsibility of the commission and council to collect the data, assemble it in the appropriate format and transmit all reports and any other essential documents as needed to fulfill the purposes of this article. Each report shall contain a brief, concise executive summary and shall include trends and recommendations in text format. Recommendations shall be ranked by order of importance and shall be supported by objective data available elsewhere in the report. In addition to those specifically mandated by this chapter or chapter eighteen-c of this code, reporting responsibilities include, but are not limited to, the following:
(1) Ensuring that data systems collect the essential information state-level policymakers need to answer key policy questions to fulfill the purposes of the accountability system established pursuant to this article and section one-a, article one of this chapter;
(2) Collaborating with public education to establish policies to link existing pre-K, K-12, higher education and teacher data systems to enable tracking of student progress and teacher performance over time; and
(3) Ensuring that reports provide data analyses to determine if students entering the public higher education systems are prepared for post-secondary education and if students obtaining degrees, certificates or other credentials are prepared to pursue careers or to continue their education.
(d) It is the responsibility of public institutions of higher education to report to the commission or the council, as appropriate, on plans, accomplishments and recommendations to implement the goals and objectives contained in the institutional and state compacts.
§18B-1D-5. Master plans; reports; approval process.
(a) The commission and the council each shall develop a master plan for public higher education that is closely aligned with the goals and objectives of this article and section one-a, article one of this chapter as they relate to the missions of institutions under their respective jurisdictions.
(b) The authority of the commission and the council, respectively, related to developing and implementing statewide master plans is subject to the following conditions:
(1) The master plans shall be established for periods of not more than five years.
(2) The master plans in place on the effective date of this article continue in effect until the end of the five-year planning cycle unless amended or rescinded by the commission or council, respectively, pursuant to this article.
(3) Any new master plan proposed by the commission or council shall be communicated to the Legislative Oversight Commission on Education Accountability and may not be adopted or implemented without the approval of that body;
(4) The commission and council each shall perform a comprehensive review of its master plan at least annually and shall revise it periodically as appropriate to meet state goals and objectives.
(5) The commission and the council each shall review the progress of its higher education system in meeting the goals and objectives of the master plan and report to the Legislative Oversight Commission on Education Accountability, with detailed recommendations for amending the plan, by the first day of January, two thousand nine, and annually thereafter.
(6) At the end of each five-year planning cycle and as an integral part of the preparation of a new master plan, the commission and the council, respectively, shall prepare and submit to the Legislative Oversight Commission on Education Accountability a comprehensive report containing at least the following:
(A) A detailed, data-based analysis of the progress of the system and the institutions within the system toward meeting each goal and objective included in the current plan; and
(B) A strategy for using this data as a basis for developing the master plan for the next planning cycle.
(c) The master plan shall include a detailed set of system objectives designed to meet the state goals and objectives outlined in this article and section one-a, article one of this chapter including, but not limited to, the following:
(A) A well-developed analysis of missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinants and projections for public higher education and other matters necessary in such a plan to assure that the needs of the state for a quality system of higher education are addressed; and
(B) A strategy for cooperation and collaboration with the State Board of Education and State Department of Education, state institutions of higher education, the counterpart state coordinating board and other relevant education providers to assure that a comprehensive and seamless system of education is developed and implemented for West Virginia.
§18B-1D-6. State compacts; legislative intent; rule required; implementation plans authorized.
(a) It is the intent of the Legislature that members of the education partnership to achieve state goals and objectives engage in developing state compacts between and among themselves for the purpose of enhancing the well-being of the citizens of West Virginia. Such a compact constitutes a formal contract and focuses on the goals and objectives established pursuant to this article and section one-a, article one of this chapter. A compact is called for when achievement of specific goals or objectives requires significant collaboration and commitment of resources by more than one member of the partnership.
(b) The rules to be proposed relating to state compacts pursuant to subsection (c), section one of this article shall include, but are not limited to, the following components:
(1) A procedure to determine when a state compact is necessary or desirable;
(2) A procedure for determining the identity of parties to the compact and for establishing compact terms:
(A) Parties to the compact may be any two or more members of the education partnership to achieve state goals and objectives who are positioned to make significant contributions to meeting compact objectives; and
(B) The terms of the compact shall focus on achievement of objectives. The expected outcomes shall be stated in concrete terms that are measurable.
(3) A mechanism for negotiating agreement on compact objectives. The mechanism shall provide for negotiation and development of consensus among the parties and must be reasonable in its operation and outcomes expectations;
(4) A procedure for creating and consolidating commitment between and among parties to the compact. Most state compacts will extend over multiple years and will require that negotiation between education partners and elected state officials take into account the constraints of the political process and the limits on available resources; and
(5) A process for periodic review, assessment and reporting of progress toward meeting the compact objectives. The rule shall provide for objective analysis and reporting to the compact partners and to the elected officials of the state.
(c) In addition to authorizing the commission and the council to enter into state compacts pursuant to subsections (a) and (b) of this section, it is the intent of the Legislature to encourage them strongly to develop implementation plans together with other members of the public higher education community to achieve system and institutional goals and objectives which are consistent with and supportive of the goals and objectives established in this article and section one-a, article one of this chapter.
(1) At a minimum, each implementation plan shall contain the following elements:
(A) Identification of the goal and the objectives to be achieved;
(B) Identification of the parties to the implementation plan and a process for developing consensus among the parties;
(C) A needs assessment or other mechanism to determine current status of the proposed objectives, including a survey of available resources and other data relevant to achieving the objectives;
(D) Identification of challenges or barriers to meeting objectives;
(E) Delineation of tasks to be performed;
(F) A specific time line for meeting objectives;
(G) An evaluation process administered periodically to determine progress in meeting the objectives during the life span of the plan; and
(H) A method for determining success in achieving the objectives following the closing date established by the time line.
(2) Implementation plans are internal documents developed among members of the public higher education community and are not subject to an external approval process.
§18B-1D-7. Findings; establishment of institutional compacts; compact elements; submission date; review and approval process; rule required.

(a) The Legislature finds that West Virginia long has recognized the value of education and, on a per capita income basis, ranks very high among the states in its investment to support public education. The Legislature further finds that a combination of state and national demographic and economic factors as well as significant changes in methods of course and program delivery compel both the state and public higher education to create a process that will strengthen institutional capacity to provide the services so valued by the citizens of the state and so essential to promoting economic vitality.
(b) Therefore, each state college and university shall prepare an institutional compact for submission to the commission and each community and technical college shall prepare an institutional compact for submission to the council. When the process herein provided is completed, the resulting institutional compact constitutes a negotiated contract between the state institution of higher education and the commission or council, respectively, containing at a minimum the following basic components:
(1) Institutional strategies for focusing resources on meeting the goals and objectives set forth in this article and section one-a, article one of this chapter; and
(2) Commission or council strategies for promoting and supporting the institution in fulfilling its mission and objectives, to make it more competitive with its peers, and to ensure the continuity of academic programs and services to its students.
(c) In addition to the basic contract components described in subsection (b) of this section, each compact shall contain at least the following elements:
(1) A determination of the mission of the institution which specifically addresses changes necessary or expedient to accomplish the goals and objectives articulated by the state and the appropriate statewide master plan;
(2) A detailed statement of how the compact is aligned with and will be implemented in conjunction with the master plan of the institution;
(3) A comprehensive assessment of education needs within the institution's geographic area of responsibility;
(4) A strategy to ensure access to comprehensive community and technical college and workforce development services within each respective region of the state consistent with the mission of the institution;
(5) Provision for collaboration and brokering of education services as necessary or expedient to carry out the institutional mission and meet its objectives;
(6) Provision of student services at the optimum level to support the institutional mission and to achieve state goals and objectives;
(7) Strategies for using existing infrastructure and resources within each region, where feasible, to increase student access while controlling costs and maintaining academic quality; and
(8) Other public policy objectives or initiatives adopted by the commission or council pursuant to the intent and purposes of this article and section one-a, article one of this chapter.
(d) Each institutional compact shall be updated annually and shall follow the same general guidelines contained in this section.
(e) Development and updating of the institutional compacts is subject to the following conditions:
(1) The ultimate responsibility for developing and updating the compacts at the institutional level resides with the board of advisors or the board of governors, as appropriate. It is the responsibility of the commission or council to provide technical assistance as requested and to negotiate with the institution development of the strategies to promote and support the institution pursuant to subsection (b) of this section;
(2) The commission and the council each shall establish a date by which institutions under their respective jurisdictions shall submit their compacts to the commission or council pursuant to the provisions of this article. The date established by each state-level coordinating board shall apply uniformly to all institutions under the jurisdiction of that coordinating board and shall meet the following additional conditions:
(A) Allow sufficient time for careful analysis of the compacts by the central office staff and for review by members of the commission or the council, as appropriate; and
(B) Allow sufficient time for the institutions to make necessary revisions to the compacts, as provided in this section.
(3) The commission and council shall review each compact from the institutions under their respective jurisdictions and either adopt the compact or return it with specific comments for change or improvement. The commission and council, respectively, shall continue this process as long as each considers advisable;
(4) By the first day of May annually, if the institutional compact of any institution as presented by that institution is not adopted by the respective commission or council, then the commission or council is empowered and directed to develop and adopt the institutional compact for the institution and the institution is bound by the compact so adopted; and
(5) As far as practicable, the commission and council each shall establish uniform processes and forms for the development and submission of the institutional compacts by the institutions under their respective jurisdictions, taking into consideration the differences in institutional missions and objectives. As a part of this function, the commission and council each shall organize the statements of legislative goals and objectives contained in this article and section one-a, article one of this chapter in a manner that facilitates the purposes therein.
(f) Assignment of geographic areas of responsibility. --
(1) The commission shall assign geographic areas of responsibility to the state institutions of higher education under its jurisdiction, except for the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University. For institutions other than the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University, the geographic areas of responsibility are made a part of their institutional compacts to ensure that all areas of the state are provided necessary programs and services to achieve state goals and objectives. The commission and the council each shall develop data-based measures to determine the extent to which institutions under their respective jurisdictions are providing higher education services aligned with state goals and objectives and institutional missions within their geographic areas of responsibility. This information shall be reported in the statewide report card established pursuant to section eight of this article.
(2) The council shall assign geographic areas of responsibility to the state institutions of higher education under its jurisdiction, including the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology, and the regional campus known as West Virginia University at Parkersburg.
(3) The geographic areas of responsibility for the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts include measures of programs and services by geographic area throughout the assigned geographic area of responsibility.
(g) The compacts shall contain benchmarks to be used to determine progress toward meeting the objectives established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be objective;
(2) They shall be directly linked to the objectives in the compacts;
(3) They shall be measured by the indicators described in subsection (h) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of responsibility.
(h) The rules required by subsection (c), section one of this article shall include indicators which measure the degree to which the goals and objectives set forth in this article and section one-a, article one of this chapter are being met by the institutions under the jurisdiction of the commission and the council, respectively.
(1) The rules pertaining to benchmarks and indicators in effect for the commission and the council on the effective date of this section remain in effect for the institutions under their respective jurisdictions until amended, modified, repealed or replaced by the commission or the council, respectively, pursuant to the provisions of this article, section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code.
(2) The rules shall set forth at least the following as pertains to all state institutions of higher education:
(A) The indicators used to measure the degree to which the goals and objectives are being met;
(B) Uniform definitions for the various data elements to be used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to provide the following information:
(i) Measurable evidence that the pursuits of the institution are focused on the education needs of the citizens of the state and are aligned with the objectives of the institutional compacts and statewide master plans;
(ii) Delineation of the objectives and benchmarks for an institution so that the commission or council can precisely measure the degree to which progress is being made toward achieving the goals and objectives provided in this article and section one-a, article one of this chapter; and
(iii) Identification of specific objectives within the master plan or compact of an institution that are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the rule established by the council shall set forth at least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify the following:
(i) The degree to which progress is being made by institutions toward meeting state goals and objectives and the essential conditions for community and technical college education pursuant to section three, article three-c of this chapter;
(ii) Information and data necessary to be considered by the council in making the determination required by section three, article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to support an objective determination by the council that an institution's progress toward achieving state goals and objectives and the essential conditions for community and technical college education is so deficient that implementation of the provisions of section four, article two-c of this chapter is warranted and necessary.
(i) The commission and the council, respectively, shall approve the compacts developed for the institutions under their respective jurisdictions by the boards of governors or the boards of advisors pursuant to this section and consistent with the powers and duties prescribed in section four, article two-a of this chapter and section one, article six of this chapter.
§18B-1D-8. Institutional and system report cards.

(a) The purpose of the institutional and statewide report cards is to make information available to parents, students, faculty, staff, state policymakers and the general public on the quality and performance of public higher education. The focus of the report cards is to determine annual progress of the commission, the council and institutions under their respective jurisdictions toward achieving state goals and objectives identified in this article and section one-a, article one of this chapter and system goals and objective contained in the statewide master plans of the commission and council created pursuant to section five of this article.
(b) The information contained in the report cards shall be consistent and comparable between and among state institutions of higher education. If applicable, the information shall allow for easy comparison with higher-education-related data collected and disseminated by the Southern Regional Education Board, the United States Department of Education and other education data-gathering and data-disseminating organizations upon which state policymakers frequently rely in setting policy.
(c) The rules required by subsection (c), section one of this article shall provide for the collection, analysis and dissemination of information on the performance of the state institutions of higher education, including health sciences education, in relation to the findings, goals and objectives set forth in this article and section one-a, article one of this chapter and those contained in the statewide master plans of the commission and council developed pursuant to section five of this article.
(1) The objective of this portion of the rule is to ensure that the Legislative Oversight Commission on Education Accountability and others identified in subsection (a) of this section are provided with full and accurate information while minimizing the institutional burden of recordkeeping and reporting.
(2) This portion of the rule shall identify various indicators of student and institutional performance that, at a minimum, must be reported annually, set forth general guidelines for the collection and reporting of data and provide for the preparation, printing and distribution of report cards under this section.
(d) The report cards shall be analysis-driven, rather than simply data-driven, and shall present information in a format that can inform education policymaking. They shall include an executive summary which outlines significant trends, identifies major areas of concern, and discusses progress toward meeting state and system goals and objectives. They shall be brief and concise, reporting required information in nontechnical language. Any technical or supporting material to be included shall be contained in a separate appendix.
(e) The statewide report card shall include the data for each separately listed, applicable indicator identified in the rule promulgated pursuant to subsection (c) of this section and the aggregate of the data for all public institutions of higher education.
(f) The statewide report card shall be prepared using actual institutional, state, regional and national data, as applicable and available, indicating the present performance of the individual institutions, the governing boards and the state systems of higher education. Statewide report cards shall be based upon information for the current school year or for the most recent school year for which the information is available, in which case the year shall be clearly noted.
(g) The president or chief executive officer of each state institution of higher education shall prepare and submit annually all requested data to the commission at the times established by the commission.
(h) The higher education central office staff, under the direction of the vice chancellor for administration, shall provide technical assistance to each institution and governing board in data collection and reporting and is responsible for assembling the statewide report card from information submitted by each governing board.
(i) The statewide report card shall be completed and disseminated with copies to the Legislative Oversight Commission on Education Accountability prior to the first day of January of each year and the staff of the commission and the council shall prepare a report highlighting specifically the trends, progress toward meeting goals and objectives and major areas of concern for public higher education, including medical education, for presentation to the Legislative Oversight Commission on Education Accountability at the interim meetings in January, two thousand nine, and annually thereafter.
(j) Notwithstanding any other provisions of this code to the contrary, the following statutorily mandated reports are not required to be prepared and submitted annually unless a member of the Legislature makes a specific request for a particular report:
(1) An annual report, pursuant to subsection (a), section forty-eight, article three, chapter five-a of this code, on vehicle fleets;
(2) An annual report, pursuant to subsection (e), section ten, article one of this chapter, on plans, accomplishments and recommendations in implementing a cooperative relationship between Potomac State College and Eastern West Virginia Community and Technical College;
(3) An annual report, pursuant to paragraphs (A) and (B), subdivision (10), subsection (a), section four, article one-b of this chapter, concerning higher education performance and enrollment data;
(4) An annual report, pursuant to paragraph (A), subdivision (11), subsection (b), section six, article two-b of this chapter, concerning community and technical college performance;
(5) An annual report, pursuant to subsection (b), section seven, article five of this chapter, on all sales of obsolete, unusable or surplus commodities;
(6) An annual report, pursuant to section eight, article five of this chapter, on purchases from West Virginia businesses;
(7) An annual report, pursuant to subsection (j), section one, article ten of this chapter, on the amount of auxiliary fees collected to replace state funds subsidizing auxiliary services;
(8) An annual report, pursuant to subsection (c), section five, article thirteen of this chapter, on technical assistance provided to qualified businesses within approved research parks, research zones or technology centers;
(9) An annual report, pursuant to subsection (e), section six, article eighteen of this chapter, on the status of the Eminent Scholars Endowment Trust Fund; and
(10) An annual report, pursuant to subsection (e), section one, article three, chapter eighteen-c of this code, relevant to the health education loan program.
(k) For a reasonable fee, the vice chancellor for administration shall make copies of the report cards, including any appendices of supporting material, available to any individual requesting them.
ARTICLE 14. MISCELLANEOUS.

§18B-14-9. Legislative findings; establishment of study committee; membership; recommendations on higher education facilities.

(a) The Legislature finds that it is in the best interest of the state to have an effective and comprehensive system for the delivery of public higher education programs. West Virginia is one of the very few states in the nation which does not address higher education capital project and facilities maintenance needs through a statewide plan. State institutions of higher education vary widely in their ability to incur debt for capital projects and the conditions of their facilities infrastructure. Some institutions have incurred substantial amounts of debt to address capital needs, while other institutions have not.
The Legislature further finds that average tuition and fees for current and former administratively linked community and technical colleges rank well above the national average primarily because of the capital fees that students at those institutions have to pay. The large amount of capital fees that students must pay at the institution level contributes significantly to the poor grade the state receives each year in the category of 'Affordability' on 'Measuring Up: The National Report Card on Higher Education'. Net college costs for state students who come from families in the lowest forty percent of the population in terms of income to attend community and technical colleges and four-year colleges and universities in West Virginia represent about forty-five percent of their family's annual income and there are few low-cost college opportunities.
The Legislature further finds that the high cost of capital fees contributes directly to the amount of debt incurred by students during their college years. The debt load, in turn, severely limits students' career choices and often dictates their place of residence after graduation.
(b) It is the responsibility of the Legislature to determine how to make the best use of available resources and how best to address the problems outlined in subsection (a) of this section. Therefore, the Joint Committee on Government and Finance shall create a committee for the purposes of making a specific and detailed analysis of higher education capital project and facilities maintenance needs and providing recommendations to the Legislature.
(c) The committee consists of the following members:
(1) The President of the Senate or designee;
(2) The Speaker of the House of Delegates or designee;
(3) The chairs of the Senate and House of Delegates Committees on Education, who shall co chair the committee;
(4) The vice chairs of the Senate and House of Delegates Committees on Education;
(5) The chairs of the Senate and House of Delegates Committees on Finance or their designees;
(6) The co chairs of the Joint Commission on Economic Development or their designees;
(7) Two members each from the Senate Committees on Finance and Education appointed by the President of the Senate; and
(8) Two members each from the House Committees on Finance and Education appointed by the Speaker of the House.
(d) The committee shall develop and recommend a state-level facilities plan which includes, but is not limited to, the following:
(1) A review of capital project and facilities maintenance needs of all state institutions of higher education and recommendations for addressing those needs;
(2) Recommendations concerning the appropriate capital debt load that reasonably should be maintained by the commission, council and state institutions of higher education;
(3) Recommendations for a funding mechanism to reduce the obligation of students and parents to bear the cost of higher education capital projects and facilities maintenance;
(4) Recommendations for maximizing changes in bonding capacity that will occur in two thousand twelve;
(5) Development of a uniform definition of deferred maintenance;
(6) Recommendations for an appropriate mechanism to target a percentage of state capital contributions to address deferred maintenance needs; and
(7) Recommendations for a transparent methodology to set priorities for funding capital projects.
(e) The committee shall commence its work on or before the fifteenth day of May, two thousand eight, and shall deliver its recommendations, together with draft legislation to implement the recommendations, to the Legislative Oversight Commission on Education Accountability and the Joint Committee on Government and Finance by the first day of December, two thousand eight."
Delegate DeLong moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 365), 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: Mahan, Marshall and Stemple.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 366), 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: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill ( S. B. 595) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 595 -- "A Bill to repeal §18B-1-1, §18B-1-1b and §18B-1-1c of the Code of West Virginia, 1931, as amended; to repeal §18B-1A-1 and §18B-1A-2 of said code; to repeal §18B-1B-8 and §18B-1B-9 of said code; to repeal §18B-3B-1 and §18B-3B-2 of said code; to repeal §18B-11-5 of said code; to amend and reenact §18-1-4 of said code; to amend and reenact §18-2E-5c of said code; to amend and reenact §18B-1-1a of said code; to amend said code by adding thereto a new article, designated §18B-1D-1, §18B-1D-2, §18B-1D-3, §18B-1D-4, §18B-1D-5, §18B-1D-6, §18B-1D-7 and §18B-1D-8; and to amend said code by adding thereto a new section, designated §18B-14-9, all relating to education generally; establishing Vision 2020: An Education Blueprint for Two Thousand Twenty; requiring State Board of Education plan that includes goals, objectives, strategies, indicators and benchmarks; specifying certain public education goals and objectives to be included in plan; submission of plan to Process for Improving Education Council; purposes and membership of council; providing legislative findings, intent and purposes; establishing goals for public higher education; creating education partnership to achieve state goals and objectives; establishing elements of higher education accountability system; requiring Higher Education Policy Commission and Council for Community and Technical College Education to propose rules by certain date; defining terms; specifying objectives and priorities; establishing date to achieve certain objectives and priorities; defining responsibilities of Higher Education Policy Commission, Council for Community and Technical College Education and state institutions of higher education relative to accountability system; requiring system master plans, state compacts, institutional compacts and institutional and system report cards; establishing submission, approval, review and reporting requirements; authorizing implementation plans; assigning geographic areas of responsibility; specifying that certain reports are no longer required to be prepared annually except under certain conditions; providing for committee to examine higher education facility needs; specifying membership; and requiring recommendations to Legislative Oversight Commission on Education Accountability by certain date."
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 367), 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: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 595) 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. 622, Creating Voluntary Rural and Outdoor Heritage Conservation Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page twenty-two, section ten, line thirteen, following the word "lease", by striking out the words "ten dollars twenty dollars"' and the comma and inserting in lieu thereof the following:
'$15.00';
On page twenty-two, section ten, line sixteen, following the word 'code', by striking out the words 'ten dollars' and the comma and inserting in lieu thereof the following:
'$10.00';
On page twenty-two, section ten, lines seventeen and eighteen, following the word "conveyance' and the parenthesis and comma, by striking out the words 'ten dollars' and inserting in lieu thereof the following:
'$10.00';
On page twenty-two, section ten, line twenty-two, following the word 'subsection' and the comma, by striking out the words 'five dollars' and inserting in lieu thereof the following:
'$10.00';

On page twenty-two, section ten, line twenty-four, following the word 'page' and the comma, by striking out the words 'one dollar' and inserting in lieu thereof the following:
'$1.00';

On page twenty-three, section ten, line thirty-one, following subdivision six, by striking out the entire subdivision seven, and inserting in lieu thereof the following:
"(7) Eleven dollars of each recording fee received pursuant to subdivision (1) of this subsection shall be retained by the county clerk for the operation of that office and four dollars of each of the aforesaid recording fees together with five dollars of the recording fee collected pursuant to subdivision (5)of this section, shall be paid by the county clerk into the State Treasurer and deposited in equal amounts for deposit into the Farmland Protection Fund created in article twelve, chapter eight-a of this code for the benefit of the West Virginia Agricultural Land Protection Authority and into the Outdoor Heritage Conservation Fund created in article two-g, chapter five-b of this code: Provided, That the funds deposited pursuant to this subdivision may only be used for costs, excluding personnel costs, associated with purpose of land conservation, as defined in subsection (f), section seven, article two-g, chapter five-b of this code."
The bill was then ordered to third reading.
Com. Sub. for S. B. 650, Relating to Emergency Medical Services Retirement System; 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-five, following line one hundred twenty-one, by striking out section ten in its entirety.
On page forty-eight, section thirty-two, line eighteen, following the words "the eighteen", by striking out the words "36-month", and inserting in lieu thereof the words "thirty-six month". And,
On page three, by striking out the enacting section and inserting in lieu thereof the following:
"That §16-5V-2, §16-5V-6, §16-5V-8, §16-5V-9, §16-5V-14, §16-5V-18, §16-5V-19, §16-5V-25 and §16-5V-32 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:".
The bill was then ordered to third reading.
S. B. 653, Permitting internet sales of life, accident and sickness insurance; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 680, Relating to corporate net income tax and business franchise tax; 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.
Com. Sub. for S. B. 682, Creating Community and Technical College Capital Improvement Fund; 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 eight, line seven, by inserting the following:
"The statutory provisions governing collection and disposition of capital funds in place prior to the enactment of this section remain in effect."
On page six, section eight, line sixty-eight, by striking the words "subsection (a) of"
On page nine, section eight, line one hundred thirty-eight, by striking the word "section two-h" and inserting the words "subsection (h), section two".
On page eighteen, section eighteen, line eighty, by striking the word "Account" and inserting the word "Fund".
On page nineteen, section eighteen, line ninety-six, following the word "Fund" by inserting the words "and the Community and Technical College Capital Improvement Fund".
On page twenty-six, section eighteen, line two hundred thirty-six, by striking the word "five" and inserting the words "seven and a half".
On page twenty-seven, section eighteen, line two hundred forty-three, following the word "mature" by inserting the words "or are paid in full".
And,
On page twenty-seven, section eighteen, line two hundred forty-six, by striking the words "second-in priority" and inserting in lieu thereof the words "second-in-priority".
The bill was then ordered to third reading.
S. B. 696, Providing appraisal methods for certain multifamily rental properties; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 699, Establishing OxyContin Asset Forfeiture Fund; ; 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 Delegate Perdue on third reading.
S. B. 706, Providing for liner placement through mined-out coal horizonson second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 712, Authorizing Coalbed Methane Review Board to propose 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. 715, Defining certain Public Employees Insurance Agency eligibility; on second reading, coming up in regular order, was read a second time.
On motion of Delegates Boggs, White, Caputo, Perdue, Hatfield and Webster, the bill was amended on page nine, following line one hundred seventy-seven, by inserting the following:
§5-16-15. Optional dental, optical, disability and prepaid retirement plan, and audiology and hearing-aid service plan.

(a) On and after the first day of July, one thousand nine hundred eighty-nine, the director shall make available to participants in the public employees insurance system: (1) A dental insurance plan; (2) an optical insurance plan; (3) a disability insurance plan; (4) a prepaid retirement insurance plan; and (5) an audiology and hearing-aid services insurance plan. Public employees insurance participants may elect to participate in any one of these plans separately or in combination. Notwithstanding anything in this article to the contrary, all All actuarial and administrative costs of each plan shall be totally borne by the premium payments of the participants or local governing bodies electing to participate in that plan. The director is authorized to employ such administrative practices and procedures with respect to these optional plans as are authorized for the administration of other plans under this article. The director shall establish separate funds: (1) For deposit of dental insurance premiums and payment of dental insurance claims; (2) for deposit of optical insurance premium payments and payment of optical insurance claims; (3) for deposit of disability insurance premium payments and payment of disability insurance claims; and (4) for deposit of audiology and hearing-aid service insurance premiums and payment of audiology and hearing-aid insurance claims. Such funds shall not be supplemented by nor be used to supplement any other funds.
(b) The Finance Board shall study the feasibility of an oral health benefit for children of participants."
The bill was then ordered to third reading.
Com. Sub. for S. B. 722, Granting regulatory power to certain Board of Pharmacy facilities; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Perdue, and by unanimous consent, amendment by the Committee on Health and Human Resources was withdrawn.
On motion of Delegates Perdue, Ellem, D. Poling, Miley, Azinger and Border the bill was amended on page two, section one-b, line thirteen, following the word "patients" and the period by striking out the remainder of the subsection and inserting in lieu thereof the following:
"The Board of Pharmacy shall promulgate rules regarding the minimum standards for a charitable clinic pharmacy and rules regarding the applicable definition of a pharmacist-in-charge, who may be a volunteer, at charitable clinic pharmacies: Provided, That, the charitable clinic pharmacies shall be exempt from licensure by the board until rules are in effect for a charitable clinic pharmacy. A charitable clinic pharmacy may not be charged any applicable licensing fees and such clinics may receive donated drugs."
The bill was then ordered to third reading.
Delegate DeLong moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 368), 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: Mahan, Marshall and Stemple.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 369), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Iaquinta.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 722) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 736, Relating to real property sales of persons under legal disability; 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 nine, section eight, line one hundred twenty-five, by striking out the words "six hundred" and inserting in lieu thereof the words "two thousand".
The bill was then ordered to third reading.
Com. Sub. for S. B. 746, Establishing recycling recovery program for electronics; 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 three, section two, line eight, following the word "barriers" by inserting the words "and other civil engineering applications".
On page three, section two, line thirteen, following the word "barriers" by inserting a comma and the words "recapping, alternative daily cover".
On page seventeen, section twenty-five, line sixteen, by striking out the word "or" and inserting in lieu thereof the word "and".
On page seventeen, section twenty-five, line thirty-two, following the word "year" by inserting a comma and the words "either by actual count or by using average product weights".
On page twenty-one, section twenty-six, line ten, following the word "separate" by inserting the word "recycling".
And,
On page twenty-two, section twenty-six, line twenty-three, by striking out the word "are" and inserting in lieu thereof the word "or".
The bill was then ordered to third reading.
S. B. 780, Relating to Public Employees Grievance Procedure: 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 four, section two, line twenty-five, by striking out subsection (d) in its entirety and inserting in lieu thereof the following:
"(d) 'Discrimination' means any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees."
And,
On page six, section two, line sixty-three, following the word "employee" by striking out the comma and the remainder of subsection (h) and inserting in lieu thereof "or is agreed to in writing by the employee."
The bill was then ordered to third reading.
Com. Sub. for S. B. 781, Relating to service of suggestee execution and notice; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 784, Relating to reforming, altering or modifying county government; 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 eleven, section one-a, line one hundred thirty-three, by striking out the word "acceptable" and inserting in lieu thereof the words "guidelines for".
The bill was then ordered to third reading.
Com. Sub. for H. B. 4014, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution; 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 (Com. Sub. for S. B. 4014) was advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments to the bill on that reading.
H. B. 4715, Making a supplementary appropriation to the Department of Transportation; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Still being in possession of the Clerk, S. B. 492, Eliminating part-time prosecutors, was taken up for further consideration.
At the request of Delegate DeLong and by unanimous consent, the House of Delegates reconsidered the vote whereby the House made the bill effective from its passage.
The House then reconsidered the amendment to the title of the bill.
The House next reconsidered the vote on the passage of the bill.
At the request of Delegate Webster, and by unanimous consent, the rule was suspended to permit the offering and consideration of an amendment on third reading.
On motion of Delegate Webster, the bill was amended on page three, section four-a, line one, immediately following the end of subsection (c), by inserting a new subsection (d), as follows:
"(d) Nothing in this section may be construed to prohibit a part-time prosecuting attorney from remaining part-time with the mutual agreement of the county commission."
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. 370), and there were--yeas 93, nays 3, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Duke, Palumbo and Sobonya.
Absent And Not Voting: Mahan, Manchin, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 492) passed.
On motion of Delegate DeLong, the House then agreed to the title of the bill as follows:
Com. Sub. for Com. Sub. for S. B. 492 -- "A Bill to amend and reenact §7-7-4a of the Code of West Virginia, 1931, as amended, relating to prosecuting attorneys; eliminating part-time prosecutors; allowing prosecutors to remain as part-time prosecutors, upon mutual agreement of county commissions and prosecutors; authorizing an increase in salary for a part-time prosecutor who becomes a full-time prosecutor; allowing prosecutors and counties to mutually agree to a change in part-time or full-time status; providing for a readjustment in salary if full-time prosecutor returns to part-time status; providing a mechanism for review of county finances by the state auditor to confirm the availability of county funds to support a full-time prosecutor; exceptions; and effective dates."
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 371), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Duke.
Absent And Not Voting: Mahan, Manchin, Marshall and Stemple.
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. 492) 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.
Leaves of Absence

At the request of Delegate DeLong, and by unanimous consent, leaves of absence for the day were granted Delegates Mahan, Manchin, Marshall and Stemple.
Conference Committee Report Availability

At 6:42 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4364.
At 6:44 p. m., the House of Delegates adjourned until 11:00 a.m., Friday, March, 7, 2008.