WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2008
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, March 7, 2008
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Pastor Matthew J. Watts, Grace Bible
Church, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, March 6, 2008,
On motion of Senator Green, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the fourth order of business.
Senator White, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 5th day of March, 2008, presented to His
Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(Com. Sub. for H. B. No. 4076), Relating to the compensation
and expenses of legislators.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
John Doyle,
Chair, House Committee.
Senator White, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 7th day of March, 2008, presented to His
Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(Com. Sub. for S. B. No. 145), Relating to reasonable force in
defense of self, real and personal property
.
(Com. Sub. for S. B. No. 579), Appointing additional
nonresident members to Bluefield's sanitary board.
(Com. Sub. for S. B. No. 704), Regulating viatical life
insurance settlements.
(H. B. No. 2503), Authorizing the Division of Motor Vehicles
to issue an identification card to West Virginia residents who
already possess a valid driver's license.
(Com. Sub. for H. B. No. 4418), Establishing a statewide
reporting system for hospitals to report their infection rates.
(H. B. No. 4478), Limiting the mid-year transfer of certain
school employees working with students with exceptionalities.
(H. B. No. 4676), Continuing the permissible appropriation of Public Employees Insurance Reserve Fund moneys to the bureau for
medical services.
(H. B. No. 4677), Reducing the requirement that the Director
of Personnel must have five years experience in personnel
management.
(H. B. No. 4712), Supplementary appropriation to the
Department of Transportation-Division of Motor Vehicles.
(H. B. No. 4713), Expiring funds to the balance of the
Department of Health and Human Resources, Health Care Authority.
And,
(H. B. No. 4714), Supplementary appropriation to the
Department of Commerce, Department of Education and the
Arts-Division of Rehabilitation Services, Department of Military
Affairs and Public Safety-Fire Marshal.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
John Doyle,
Chair, House Committee.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4287, Clarifying that
certain funds are authorized investments for funds of political
subdivisions.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4287) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide
residents wholly or solely owning greyhounds.
With amendments from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum
amount of a medical student loan that may be cancelled.
With an amendment from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on February 29, 2008;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher
education energy and water savings revolving loan fund.
With an amendment from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on February 29, 2008;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4449, Allowing the Higher Education Policy
Commission and WV Council for Community and Technical College
Education to enter into lease-purchase agreements.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4623, Relating to establishing minimum
deductions.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
The Senate proceeded to the sixth order of business.
Senators Hunter, Unger, White and Foster
offered the following
resolution:
Senate Concurrent Resolution No. 91--
Urging the return of West
Virginia National Guard military forces from Iraq and the federal
deployment of the National Guard.
Whereas, The men and women of the West Virginia National
Guard, under the able leadership of Major General Allen E. Tackett
have served courageously and faithfully in Afghanistan and Iraq for
the past five years and deserve the respect and admiration of all
West Virginians; and
Whereas, Under Article I, Section 8, Clause 15 of the United
States Constitution, Congress may call forth the militia to execute
the laws of the union, suppress insurrections and repel invasions.
Since 1933, federal law has provided that persons enlisting in a
State National Guard unit simultaneously enlist in the National
Guard of the United States, a part of the United States Army. The
enlistees retain their status as state guard members unless and
until ordered to active federal duty and then revert to state
status upon being relieved from federal service. In 1986, Congress
passed and the President signed the "Montgomery Amendment", which
provides that a Governor cannot withhold consent with regard to
active duty outside the United States because of any objection to
the location, purpose, type or schedule of such duty; and
Whereas, Under the U. S. Constitution, each state's national
unit is controlled by the Governor, but can be called up for federal duty by the President, provided that the President is
acting pursuant to the Constitution and laws of the United States.
In October 2002, the United States Congress authorized military
force under the Authorization for Use of Military Force Against
Iraq, Public Law No. 107-243 (AUMF), a law enacted in part that the
President is authorized to use the armed forces of the United
States as he determines to be necessary and appropriate in order
to: (a) Defend the national security of the United States against
the continuing threat posed by Iraq; and (b) enforce all relevant
United Nations Security Council Resolutions regarding Iraq. The
AUMF contained neither a termination date nor a process or
procedure to determine when the authorization should terminate.
United States forces, including members of the West Virginia
National Guard and guard members from other states, have long since
addressed the purposes recited under the AUMF, and it is time for
the Iraq National Guard to assume responsibility for the security
and protection of their country; and
Whereas, The President may not maintain United States forces,
and in particular members of the West Virginia National Guard, in
Iraq other than for the purposes set forth by Congress in the AUMF.
Without a specific date for withdrawal of United States forces from
Iraq in the AUMF or a method or formula for determining the time
for withdrawal, and in the absence of congressional legislation
curing these omissions, the President is required to order the
withdrawal of troops within a reasonable time and in a reasonable
manner. The President has taken no such action, other than the AUMF, there is no authority under the Constitution or the laws of
the United States for the continued presence of West Virginia
National Guard members in Iraq. The maintenance of West Virginia
National Guard members in Iraq beyond the time and scope set forth
in the AUMF has resulted in significant harm to guard members and
their families, including death and injury, loss of time together
and financial hardship; and
Whereas, West Virginians are ever mindful of natural and man-
made disasters which threaten lives and property such as the
Buffalo Creek disaster of February 26, 1972, and the disastrous
flood of November 1985 and the importance of having West Virginia's
National Guard units prepared and ready for deployment to provide
aid in any imminent emergency; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the return of West Virginia
National Guard military forces from Iraq and the federal deployment
of the National Guard; and, be it
Further Resolved, That Congress is urged to revisit the 1986
Montgomery Amendment and adopt legislation that restores the powers
of the Governors of the several states to withhold consent to
federalization of their National Guards, except where a declaration
of war has been adopted or where the United States faces attack or
invasion and the President has invoked powers authorized by an Act
of Congress to address those circumstances; 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 Congress.
Which, under the rules, lies over one day.
Senators Oliverio, Wells, Unger and Prezioso
offered the
following resolution:
Senate Resolution No. 35--
Designating March 9-16, 2008, as
National Problem Gambling Awareness Week in West Virginia.
Whereas, On behalf of the citizens of West Virginia, the
Senate joins the West Virginia Council on Problem Gambling in
promoting March 9-16, 2008, as National Problem Gambling Awareness
Week in West Virginia; and
Whereas, Promoting the awareness week provides individuals in
the problem gambling community an opportunity to educate the public
and policymakers about the social and financial effectiveness of
services available for problem gambling; and
Whereas, Problem gambling is a public health issue affecting
millions of Americans of all ages, races and ethnic backgrounds in
all communities and which has a significant societal and economic
cost; and
Whereas, Problem gambling is treatable and treatment is
effective in minimizing the harm to both individuals and society as
a whole; and
Whereas, Numerous individuals, professionals and organizations
have dedicated their efforts to the education of the public about
problem gambling and the availability and effectiveness of
treatment; and
Whereas, The Senate and the West Virginia Council on Problem Gambling invite all residents of West Virginia to participate in
National Problem Gambling Awareness Week; therefore, be it
Resolved by the Senate:
That the Senate hereby designates March 9-16, 2008, as
National Problem Gambling Awareness Week in West Virginia; and, be
it
Further Resolved, That the Senate joins the West Virginia
Council on Problem Gambling in encouraging all citizens to help
spread the message that there is help for problem gamblers through
treatment and in supporting those who are in treatment and recovery
and their families.
Which, under the rules, lies over one day.
Senators Caruth, Chafin, Helmick, Guills, Fanning, Green and
Stollings offered the following resolution:
Senate Resolution No. 36--Honoring Dr. Jerry L. Beasley,
retiring president of Concord University, education innovator and
dedicated West Virginian.
Whereas, Dr. Jerry L. Beasley is a native of Hinton, West
Virginia, and is married to Jean Dressler Beasley, with whom he
shares the joy of having three daughters, Heather Lauren, Sarah
Elizabeth and Leah Ellen; and
Whereas, Dr. Jerry L. Beasley graduated cum laude from Harvard
College, earned his Ed. M. from Harvard University and his Ph. D.
from Stanford University; and
Whereas, Dr. Jerry L. Beasley became Concord University's 17th
president on July 1, 1985; and
Whereas, During Dr. Jerry L. Beasley's tenure, Concord
University has attained its highest enrollment; has developed the
largest endowment of any West Virginia public college; in 2002, was
ranked number one in "academic reputation" among four-year public
colleges in the south by U. S. News & World Report's America's Best
Colleges; in 2000, was ranked number 52 in a nationwide survey of
"most-wired colleges" by ZDNet; in 2003, was ranked 13th in a
nationwide ranking by The Wall Street Journal of best undergraduate
public colleges and universities for admission of their alumni to
the nation's most selective graduate schools; and
Whereas, Dr. Jerry L. Beasley has worked tirelessly as the
president of Concord University and as a member of numerous boards
and commissions in an effort to enhance higher education in West
Virginia; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Dr. Jerry L. Beasley, retiring
president of Concord University, education innovator and dedicated
West Virginian; and, be it
Further Resolved, That the Senate extends its best wishes to
Dr. Jerry L. Beasley and wishes him continued success on any future
endeavors he may wish to pursue; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Dr. Jerry L. Beasley.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution, and on
this question, Senator Oliverio demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared the resolution (S. R. No. 36)
adopted.
Thereafter, at the request of Senator Oliverio, and by
unanimous consent, the remarks by Senators Caruth, Guills, Plymale,
Foster, Deem and Unger regarding the adoption of Senate Resolution
No. 36 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Sprouse, McCabe, Jenkins, Prezioso, Stollings and
Kessler offered the following resolution:
Senate Resolution No. 37--Designating the month of March,
2008, as "American Red Cross Month".
Whereas, The American Red Cross was founded in 1881 and chartered by Congress in 1905; and
Whereas, The American Red Cross is recognized as a
humanitarian organization which provides compassionate care in
times of war and disaster; and
Whereas, The American Red Cross depends on the support of the
American people to sustain the Red Cross mission; and
Whereas, In 2007, American Red Cross volunteers from West
Virginia responded to more than 900 disasters statewide, assisted
in 2,000 military families and trained more than 68,000 people in
lifesaving courses such as CPR, First Aid and Water Safety; and
Whereas, The American Red Cross collects more than 25,000
pints of life-giving blood from generous West Virginia donors; and
Whereas, The American Red Cross could not provide its vital
services without contributions from the American people; therefore,
be it
Resolved by the Senate:
That the Senate hereby designates the month of March, 2008, as
"American Red Cross Month"; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
American Red Cross.
At the request of Senator Sprouse, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration, the Senate reconvened and, at the request of
Senator Chafin, and by unanimous consent, returned to the second
order of business and the introduction of guests.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from
unfinished business, Senate Concurrent Resolution No. 57 and Senate
Concurrent Resolution No. 90.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 57, Requesting Joint
Committee on Government and Finance study oil and gas wells.
Having been removed from unfinished business in earlier
proceedings today, no further action thereon was taken.
Senate Concurrent Resolution No. 85, Requesting Joint
Committee on Government and Finance study small group insurance
coverage.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Banking and
Insurance; and then to the Committee on Rules.
Senate Concurrent Resolution No. 86, Requesting Joint
Committee on Government and Finance study consent to certain
minors' health care.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary; and then to the Committee on Rules.
Senate Concurrent Resolution No. 87, Requesting Legislative Oversight Commission on Health and Human Resources Accountability
study State Board of Pharmacy controlled substance database access.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Health and
Human Resources; and then to the Committee on Rules.
Senate Concurrent Resolution No. 89, Requesting Joint
Committee on Government and Finance study coal industry's economic
and environmental impact.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 90, Requesting Joint
Committee on Government and Finance study severance tax effects on
natural gas and oil industry.
Having been removed from unfinished business in earlier
proceedings today, no further action thereon was taken.
The Senate proceeded to the eighth order of business.
Eng. House Bill No. 3201, Authorizing the tax commissioner to
refuse, revoke, suspend or refuse to renew a business registration
certificate for a business that is the alter ego, nominee or
instrumentality of a business in certain situations.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 3215, Removing the
administrative link between Shepherd University and Blue Ridge
Community and Technical College.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Following extended discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 3215 pass?"
On the passage of the bill, the yeas were: Bailey, Bowman,
Chafin, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, Minard, Plymale, Prezioso,
Stollings, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, McKenzie,
Oliverio, Sprouse and Sypolt--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3215) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3215--A Bill to repeal §18B-
1-7 of the Code of West Virginia, 1931, as amended; to repeal §18B-
1A-7 of said code; to repeal §18B-1B-11 of said code; to repeal
§18B-2B-6a of said code; to repeal §18B-6-1 of said code; to repeal §18B-14-8 of said code; to amend and reenact §18B-1-2 and §18B-1-8
of said code; to amend and reenact §18B-1B-6 of said code; to amend
and reenact §18B-1C-2 of said code; to amend and reenact §18B-2A-1,
§18B-2A-2 and §18B-2A-4 of said code; to amend said code by adding
thereto a new section, designated §18B-2A-7a; to amend and reenact
§18B-2B-6 of said code; to amend and reenact §18B-2C-1 and §18B-2C-
3 of said code; to amend and reenact §18B-3-3 of said code; to
amend and reenact §18B-3C-5, §18B-3C-8, §18B-3C-12, §18B-3C-13 and
§18B-3C-14; to amend said code by adding thereto a new section,
designated §18B-3C-15; and to amend and reenact §18B-8-3 of said
code, all relating to higher education generally; state
institutions of higher education; statewide network of
independently accredited community and technical colleges;
modifying certain powers and duties of
West Virginia Council for
Community and Technical College Education,
Higher Education Policy
Commission and institutional boards of governors; defining terms;
designating certain community and technical colleges as independent
state institutions of higher education and removing administrative
link to former sponsoring institutions; clarifying student rights
under certain circumstances; providing for appointment of
institutional presidents;
specifying contract terms and evaluation
procedures; modifying title of certain institutional employees;
providing for continuation in office;
abolishing institutional
boards of advisors and establishing boards of governors for certain
community and technical colleges; providing for initial
appointments to boards of governors; quorums; establishing eligibility criteria and defining membership; requiring
institutional master plans and compacts focused on achieving state
goals, objectives and priorities; providing for transfer of certain
orders, resolutions, rules and obligations from former sponsoring
institutions to certain boards of governors; requiring division of
assets and liabilities by date certain; providing guidelines for
division of assets and liabilities; providing mechanism and time
lines for resolution of disputes; prohibiting challenge of certain
decisions in state courts; modifying requirements for certain
rules; requiring certain legislative and emergency rules;
specifying approval procedure for emergency rules; clarifying
certain reporting requirements;
modifying procedure for
establishing priorities for certain capital projects;
modifying
specifications for development of certain budgets; clarifying and
redefining relationships between and among certain higher education
boards and institutions; making legislative findings and specifying
legislative intent; defining statewide network of independently
accredited community and technical colleges; establishing core
mission, objectives and priorities for independent community and
technical colleges; authorizing certain governing boards to change
institutional name by date certain; modifying number of lay members
on certain governing boards; authorizing certain governing boards
to maintain association with former sponsoring institutions under
certain circumstances; continuing certain contracts related to
program delivery and provision of certain services; making certain
governing boards responsible for maintaining or achieving independent accreditation and essential conditions; requiring
former sponsoring institutions to provide certain services for
specified period; modifying fee requirements and limitations;
specifying contract terms; providing for contract modification
under certain circumstances; establishing Pierpont Community and
Technical College as an independent state institution of higher
education; defining institutional mission and duties and
responsibilities of governing boards; requiring independent
accreditation by date certain; providing for program accreditation
by Fairmont State University under contract until certain date and
requiring approval of contract terms by Council for Community and
Technical College Education; directing Council to take steps
necessary to achieve independent accreditation status; providing
for severing accreditation contract between institutions under
certain circumstances; establishing advanced technology centers;
defining mission, goals and objectives; establishing boards of
advisors; specifying membership and terms of office; providing for
transition oversight and implementation by Legislative Oversight
Commission on Education Accountability; providing for salary
increase when faculty member is promoted in rank; making technical
corrections; and deleting obsolete provisions.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Bowman, Chafin,
Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, Minard, Plymale, Prezioso,
Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, McKenzie,
Oliverio, Sprouse and Sypolt--9.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3215) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Sprouse, and by
unanimous consent, the remarks by Senators Boley and Deem regarding
the passage of Engrossed Committee Substitute for House Bill No.
3215 were ordered printed in the Appendix to the Journal.
Eng. Com. Sub. for House Bill No. 4010, Removing the
limitation on terms for members on the board of library directors.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4010) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4010) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4016, Updating meaning of federal adjusted
gross income and certain other terms used in West Virginia Personal
Income Tax Act.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Thursday, March 6, 2008, for
amendments to be received on third reading, was reported by the
Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar, and with the right for amendments to be considered on third reading remaining in effect.
Eng. House Bill No. 4017, Updating meaning of federal taxable
income and certain other terms used in West Virginia Corporation
Net Income Tax Act.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Thursday, March 6, 2008, for
amendments to be received on third reading, was reported by the
Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar, and with the right for amendments to be considered on
third reading remaining in effect.
Eng. Com. Sub. for House Bill No. 4036, Granting the board of
Respiratory Care Practitioners rulemaking authority and the
issuance of temporary permits to students.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4036) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4036) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4156, Permitting a governing
body of a municipality to place a lien on property in an amount
equal to the demolition and removal of a hazardous structure.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Barnes, Love, Sypolt and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4156) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4156--A Bill to amend and
reenact §8-12-16 of the Code of West Virginia, 1931, as amended,
relating to authorizing municipalities to place a lien on property
in an amount that reflects the costs incurred by the municipality
for repairing, altering or improving, or of vacating and closing,
removing or demolishing any dwelling or building on the property.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4337, Authorizing the Board
of Barbers and Cosmetologists to increase fees for one year.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Wells, White and Tomblin (Mr. President)--28.
The nays were: Boley, Facemyer, Sypolt, Unger and Yoder--5.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4337) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4381, Relating to an
assigned risk plan and guaranty association account for workers'
compensation insurance.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4381) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4381) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4386, Authorizing
municipalities to create an annual vacant property registration.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Unger, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Sypolt and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4386) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4386--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §8-12-16a, relating to uninhabitable property
in municipalities; authorizing municipalities to establish property
registration and assess fees by ordinance; procedures and
requirements for the property registration and fees; establishing
appeal process; and process for delinquent fees.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4389, Removing requirement
that resident violators of traffic laws be required to sign
citations.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4389) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4394, Restoring the licensure exemption
for certain contractors of manufactured housing installation.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4394) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4394) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4420, Imposing corporate net
income tax on certain regulated investment companies and real
estate investment trusts used as tax sheltering vehicles.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4420) passed with its title.
Senator Chafin moved that the bill take effect January 1,
2009.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4420) takes effect January 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4644, Relating to the forfeiture of bail.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Barnes--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4644) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Barnes--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4644) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4664, Clarifying the purpose
of the Purchasing Division.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4664) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4692, Permitting
depositories of state, county, municipal and other public moneys to
pool securities.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4692) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Kessler, and by unanimous consent,
the Senate returned to the sixth order of business, which agenda
includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4139, Relating to licensing persons using bioptic telescopic devices to operate a motor
vehicle.
Passed by the Senate on yesterday, Thursday, March 6, 2008,
The bill now being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote
as to the passage of the bill.
The vote thereon having been reconsidered,
At the request of Senator Kessler, unanimous consent was
granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following
amendment to the bill was reported by the Clerk and adopted:
On page eight, section one, line ninety-nine, by striking out
the words "a nondriver" and inserting in lieu thereof the word
"an".
The bill, as just amended, was again ordered to third reading.
Engrossed Committee Substitute for House Bill No. 4139 was
then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Sprouse--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4139) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 3 p.m.
today.
Upon expiration of the recess, the Senate reconvened.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate second reading calendar, Eng. Com. Sub. for House Bill No.
4092.
Senator Chafin also announced that in the same meeting, the
Committee on Rules, in accordance with rule number seventeen of the
Rules of the Senate, had placed consideration of Engrossed
Committee Substitute for House Bill No. 4021, Engrossed Committee
Substitute for House Bill No. 4022, Engrossed Committee Substitute
for House Bill No. 4032, Engrossed Committee Substitute for House
Bill No. 4059, Engrossed Committee Substitute for House Bill No.
4094, Engrossed Committee Substitute for House Bill No. 4121,
Engrossed Committee Substitute for House Bill No. 4331, Engrossed
Committee Substitute for House Bill No. 4333, Engrossed House Bill
No. 4348, Engrossed Committee Substitute for House Bill No. 4402,
Engrossed Committee Substitute for House Bill No. 4404, Engrossed Committee Substitute for House Bill No. 4438, Engrossed House Bill
No. 4465, Engrossed House Bill No. 4513, Engrossed Committee
Substitute for House Bill No. 4515, Engrossed Committee Substitute
for House Bill No. 4527, Engrossed House Bill No. 4567, Engrossed
Committee Substitute for House Bill No. 4617, Engrossed Committee
Substitute for House Bill No. 4619 and Engrossed Committee
Substitute for House Bill No. 4637 preceding consideration of all
other bills on today's second reading calendar.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety
equipment requirements and enhancing penalties for crimes against
mining property.
On second reading, coming up out of regular order, was
reported by the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar, following
consideration of Engrossed House Bill No. 3201 already placed in
that position.
Eng. Com. Sub. for House Bill No. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §29-21-10, §29-21-11 and §29-21-12 of the Code of West
Virginia, 1931, as amended, be repealed; that said code be amended
by adding thereto a new section, designated §29-21-3b; and that
§29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code
be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense
Commission to provide assistance to Public Defender Services with
regard to the general policies and procedures of the agency,
including, but not limited to, the opening of public defender
offices throughout the state and the establishment of performance
measures for the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to
solving criminal justice problems, the commission shall consist of
the Executive Director of Public Defender Services, who shall serve
as chair, the Director of the Prosecuting Attorneys Institute, and
the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Two lawyers experienced in providing legal services to the
indigent;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing
legal services to the indigent.
(c) The commission shall meet at the times and places
specified by the call of the chair: Provided, That the commission
shall meet no less than four times each year. Members shall serve
without compensation but may receive reimbursement of actual and
necessary expenses for each day or portion thereof engaged in this
discharge of official duties in a manner consistent with the
guidelines of the Travel Management Office of the Department of
Administration.
(d) The appointed members of the commission serve four-year
terms that shall coincide with the term of the Governor.
(e) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and
training for public defenders, assistant public defenders and
staff;
(2) To explore opportunities related to the training of
appointed panel attorneys;
(3) To evaluate, on an annual basis, the caseloads of public
defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert
witnesses, investigators and other persons who provide services
related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for
determining eligibility for legal representation under section
sixteen of this article;
(6) To approve the creation of additional public defender
corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender
corporations in accordance with the provisions of section eight of
this article; and
(7) To monitor and make recommendations regarding the
following activities of the board of directors of each public
defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant
public defenders pursuant to subdivision (1), subsection (c),
section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant
to subdivision (2), subsection (c), section fifteen of this
article; and
(C) The removal of any public defender, assistant public
defender or other employee for misfeasance, malfeasance or
nonfeasance pursuant to subdivision (3), subsection (c), section
fifteen of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency
is authorized to make grants to and contracts with public defender
corporations and with individuals, partnerships, firms,
corporations and nonprofit organizations for the purpose of
providing legal representation under this article and may make such
any other grants and contracts as that are necessary to carry out
the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose
of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received
by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or
his or her designee shall operate a criminal law research center as
provided for in section seven of this article. This center shall
undertake directly, or by grant or contract, to serve as a
clearinghouse for information; to provide training and technical
assistance relating related to the delivery of legal
representation; and to engage in research, except that broad
general, legal or policy research unrelated to direct
representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or
his or her designate designee shall operate an accounting and
auditing division to require and monitor the compliance with this
article by public defender corporations and other persons or
entities receiving funding or compensation from the agency. This
The accounting and auditing division shall review all plans and
proposals for grants and contracts and shall make a recommendation
of approval or disapproval to the executive director. The
accounting and auditing division shall prepare, or cause to be
prepared, reports concerning the evaluation, inspection or
monitoring of public defender corporations and other grantees,
contractors, persons or entities receiving financial assistance
under this article and shall further carry out the agency's
responsibilities for records and reports as set forth in section
eighteen of this article. The accounting and auditing division shall require each public defender corporation to periodically
submit financial statements monthly and to report monthly on the
billable and nonbillable time of its professional employees,
including time utilized used in administration of the respective
offices, so as to compare such the time to similar time expended in
nonpublic law offices for like similar activities. The accounting
and auditing division shall provide to the executive director
assistance in the fiscal administration of all of the agency's
divisions. Such This assistance shall include, but not be limited
to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or
a person designated by the executive director his or her designee
shall operate an appellate advocacy division for the purpose of
prosecuting litigation on behalf of eligible clients in the Supreme
Court of Appeals. The executive director or a person designated by
the executive director his or her designee shall be the director of
the appellate advocacy division. The appellate advocacy division
shall represent eligible clients upon appointment by the circuit
courts or by the Supreme Court of Appeals. The division may,
however, refuse such the appointments due to a conflict of interest
or if the executive director has determined the existing caseload
cannot be increased without jeopardizing the appellate division's
ability to provide effective representation. In order to
effectively and efficiently utilize use the resources of the
appellate division, the executive director may restrict the
provision of appellate representation to certain types of cases. The executive director is empowered to may select and employ staff
attorneys to perform the duties prescribed by this subsection. The
appellate division shall maintain vouchers and records for of
representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby
created a public defender corporation of the circuit: Provided,
That the executive director, with the approval of the Indigent
Defense Commission, may authorize the creation of an additional
public defender corporation in a judicial circuit where the
creation of such additional public defender corporation would
improve the quality of legal representation, assure the prudent and
resourceful expenditure of state funds and further the purposes of
this article: Provided, however, That prior to the creation of
additional public defender corporations in accordance with this
subsection, the executive director shall provide a report to the
Secretary of the Department of Administration regarding the
caseload and annual budget of the existing corporation and all
payments made to panel attorneys appointed in the circuit.
(2) The purpose of these public defender corporations is to
provide legal representation in the respective circuits in
accordance with the provisions of this article. A public defender
corporation may employ full-time attorneys and employ part-time
attorneys in whatever combination that the public defender
corporation deems most cost effective.
(b) If the judge of a single-judge circuit, the chief judge of a multi-judge circuit or a majority of the active members of the
bar in the circuit determine there is a need to activate the
corporation, they shall certify that fact in writing to the
executive director If the executive director, with the approval of
the Indigent Defense Commission, determines there is a need to
activate a corporation in a judicial circuit of the state, he or
she shall certify that fact in writing to the Secretary of the
Department of Administration. The executive director shall
allocate funds to those corporations so certifying certified
corporations in the order in which he or she deems most efficient
and cost effective.
(c) The executive director, with the approval of the Indigent
Defense Commission, may require public defender corporations may
apply in writing to the executive director for permission to merge
to form multicircuit or regional public defender corporations where
a merger would improve the quality of legal representation, assure
the prudent and resourceful expenditure of state funds and further
the purposes of this article. Applications for mergers shall be
subject to the review procedures set forth in section eleven of
this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall
establish and maintain regional and local panels of private
attorneys-at-law who shall be are available to serve as counsel for
eligible clients. An attorney-at-law may become a panel attorney
and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An
agreement to accept cases generally or certain types of cases
particularly shall may not prevent a panel attorney from declining
an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be
appointed for an eligible client, the appointment shall be made by
the circuit judge in the following order of preference:
(1) In circuits where a public defender office is in
operation, the judge shall appoint the public defender office
unless such an appointment is not appropriate due to a conflict of
interest or unless the public defender corporation board of
directors or the public defender, with the approval of the board,
has notified the court that the existing caseload cannot be
increased without jeopardizing the ability of defenders to provide
effective representation;
(2) If the public defender office is not available for
appointment, the court shall appoint one or more panel attorneys
from the local panel;
(3) If there is no local panel attorney available, the judge
shall appoint one or more panel attorneys from the regional panel;
(4) If there is no regional panel attorney available, the
judge may appoint a public defender office from an adjoining
circuit if such public defender office agrees to the appointment;
(5) If the adjoining public defender office does not accept
the appointment, the judge may appoint a panel attorney from an
adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is
unavailable, the judge may appoint a panel attorney from any
circuit. In circuits where no public defender office is in
operation, the judge shall first refer to the local panel and then
to the regional panel in making appointments, and if an appointment
cannot be made from the panel attorneys, the judge may appoint the
public defender office of an adjoining circuit if the office agrees
to the appointment. In any circuit, when there is no public
defender, or assistant public defender, local panel attorney or
regional panel attorney available, the judge may appoint one or
more qualified private attorneys to provide representation, and
such private attorney or attorneys shall be treated as panel
attorneys for that specific case.
(c) In any given case, the appointing judge may alter the
order in which attorneys are appointed if the case requires
particular knowledge or experience on the part of the attorney to
be appointed: Provided, That any time a court, in appointing
counsel pursuant to the provisions of this section, alters the
order of appointment as set forth herein, the order of appointment
shall contain the court's reasons for doing so.
§29-21-13. Approval of public defender corporation funding
applications; funding; recordkeeping by public
defender corporations.
(a) On or before the first day of May of each year, each
active public defender corporation shall submit to the executive
director a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall
review all funding applications and prepare recommendations for an
operating plan and annual budget for each public defender
corporation. The executive director shall review the funding
applications and the accounting and auditing recommendations and
shall, in consultation with the applicants the board of directors
of each public defender corporation, prepare a plan for providing
legal services, execute a funding contract for the fiscal year and
commit funds for that purpose.
(b) Upon final approval of a funding application by the
executive director, the approved budget shall be set forth in an
approval notice. The total cost to the agency shall not exceed the
amount set forth in the approval notice and the agency shall not be
obligated to reimburse the recipient for costs incurred in excess
of the amount unless and until a program modification has been
approved in accordance with the provisions of this article. At the
discretion of the executive director, when caseloads increase or
unusual expenses occur, funding contracts may be amended during a
fiscal year if necessary to provide cost effective representation.
(c) Funding of public defender corporations or other programs
or entities providing legal representation under the provisions of
this article shall be by annual grants disbursed in such periodic
allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall
maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate
records of the time expended and expenses incurred on behalf of
eligible clients, and upon completion of each case, exclusive of
appeal, shall submit to the appointing court a voucher for
services. Claims for fees and expense reimbursements shall be
submitted to the appointing court on forms approved by the
executive director. The executive director shall establish
guidelines for the submission of vouchers and claims for fees and
expense reimbursements under this section. Claims submitted more
than four years ninety calendar days after the last date of service
shall be rejected, unless for good cause, the appointing court
authorizes in writing an extension: Provided, That claims where
the last date of service occurred prior to the first day of July,
two thousand eight, shall be rejected unless submitted prior to the
first day of January, two thousand nine.
The appointing court shall review the voucher to determine if
the time and expense claims are reasonable, necessary and valid,
and shall forward the voucher to the agency with an order approving
payment of the claimed amount or of a lesser sum the court
considers appropriate.
(b) Notwithstanding any other provision of this section to the
contrary, Public Defender Services may pay by direct bill, prior to
the completion of the case, litigation expenses incurred by
attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the
contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the
case where: (1) More than six months have expired since the
commencement of the panel attorney's representation in the case;
and (2) no prior payment of attorney fees has been made to the
panel attorney by Public Defender Services during the case. The
executive director, in his or her discretion, may authorize
periodic payments where ongoing representation extends beyond six
months in duration. The amounts of any fees or expenses paid to
the panel attorney on an interim basis, when combined with any
amounts paid to the panel attorney at the conclusion of the case,
shall not exceed the limitations on fees and expenses imposed by
this section.
(d) In each case in which a panel attorney provides legal
representation under this article, and in each appeal after
conviction in circuit court, the panel attorney shall be
compensated at the following rates for actual and necessary time
expended for services performed and expenses incurred subsequent to
the effective date of this article:
(1) For attorney's work performed out of court, compensation
shall be at the rate of forty-five dollars per hour. For
paralegal's work performed out of court for the attorney,
compensation shall be at the rate of the paralegal's regular
compensation on an hourly basis or, if salaried, at the hourly rate
of compensation which would produce the paralegal's current salary,
but in no event shall the compensation exceed twenty dollars per
hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and
prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall
be at the rate of sixty-five dollars per hour. No compensation for
paralegal's work performed in court shall be allowed. In-court
work includes, but is not limited to, all time spent awaiting
hearing or trial if the presence of the attorney is required before
a judge, magistrate, special master or other judicial officer.
(3) The maximum amount of compensation for out-of-court and
in-court work under this subsection is as follows: For proceedings
of any kind involving felonies for which a penalty of life
imprisonment may be imposed, the amount as the court may approve;
for all other eligible proceedings, three thousand dollars unless
the court, for good cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal
representation for proceedings of any kind involving felonies for
which a penalty of life imprisonment may be imposed, including, but
not limited to, expenses for travel, transcripts, salaried or
contracted investigative services and expert witnesses, shall be
reimbursed in an amount as the court may approve. For all other
eligible proceedings, actual and necessary expenses incurred in
providing legal representation, including, but not limited to,
expenses for travel, transcripts, salaried or contracted
investigative services and expert witnesses, shall be reimbursed to
a maximum of fifteen hundred one thousand five hundred dollars
unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature,
amount and purpose of expenses incurred and shall provide receipts,
invoices or other documentation required by the executive director
and the State Auditor:
(1) (A) Reimbursement of expenses for production of
transcripts of proceedings reported by a court reporter is limited
to the cost per original page and per copy page as set forth in
section four, article seven, chapter fifty-one of this code.
Reimbursement of the cost of copies of such transcripts is limited
to the cost per copy page as provided for under said section. It
is the duty of the executive director of Public Defender Services
to maintain computer records of all transcripts, including
originals and copies, for which payment has been made.
(B) (i) There shall be no reimbursement of expenses for or
production of a transcript of a preliminary hearing before a
magistrate or juvenile referee, or of a magistrate court jury
trial, which has been reported by a court reporter at the request
of the attorney, where the preliminary such hearing or jury trial
has also been recorded electronically in accordance with the
provisions of section eight, article five, chapter fifty of this
code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a
court reporter who reports a proceeding other than one described in
subparagraph (i) of this paragraph or who reports a proceeding
which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five
dollars. Where a transcript of a proceeding is produced, there
shall be no reimbursement for the expense of any appearance fee.
Where a transcript is requested by the attorney after an appearance
fee has been paid, reimbursement of the expense incurred to obtain
the transcript is limited to the cost of producing the transcript,
within the prescribed limitations of paragraph (a) of this
subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by
a court reporter is subject to the limitations provided by
subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this
paragraph, there shall be no reimbursement for hourly court
reporters' fees or fees for other time expended by the court
reporter, either at the proceeding or traveling to or from the
proceeding.
(C) Reimbursement of the cost of transcription of tapes
electronically recorded during preliminary hearings or magistrate
court jury trials is limited to the rates established by the
Supreme Court of Appeals for the reimbursement of transcriptions of
electronically recorded hearings and trial one dollar per page.
(2) Reimbursement for any travel expense incurred in an
eligible proceeding is limited to the rates for the reimbursement
of travel expenses established by rules promulgated by the Governor
pursuant to the provisions of section eleven, article eight,
chapter twelve of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of
section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a
rate of thirty dollars per hour for work performed by an
investigator.
(f) For purposes of compensation under this section, an appeal
from magistrate court to circuit court, an appeal from a final
order of the circuit court or a proceeding seeking an extraordinary
remedy made to the Supreme Court of Appeals shall be considered a
separate case.
(g) Vouchers submitted under this section shall specifically
set forth the nature of the service rendered, the stage of
proceeding or type of hearing involved, the date and place the
service was rendered and the amount of time expended in each
instance. All time claimed on the vouchers shall be itemized to
the nearest tenth of an hour. If the charge against the eligible
client for which services were rendered is one of several charges
involving multiple warrants or indictments, the voucher shall
indicate the fact and sufficiently identify the several charges so
as to enable the court to avoid a duplication of compensation for
services rendered. The executive director shall refuse to
requisition payment for any voucher which is not in conformity with
the recordkeeping, compensation or other provisions of this article
or the voucher guidelines established issued pursuant to subsection
(a) of this section and in such circumstance shall return the
voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after the first day
of July, two thousand eight, shall be reimbursed within ninety days
of receipt. Reimbursements after ninety days shall bear interest
from the ninety-first day at the legal rate in effect for the
calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child
abuse and neglect cases shall be processed for payment before
processing vouchers submitted for all other cases.
The bill (Eng. Com. Sub. for H. B. No. 4022), as amended, was
then ordered to third reading.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 5:30
p.m.
Upon expiration of the recess, the Senate reconvened and
resumed consideration of
Eng. Com. Sub. for House Bill No. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4022) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Plymale, Prezioso, Sprouse, Stollings, Unger,
Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Boley, Oliverio and Sypolt--3.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4022) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4022--A Bill to repeal §29-
21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931,
as amended; to amend said code by adding thereto a new section,
designated §29-21-3b; and to amend and reenact §29-21-6, §29-21-8,
§29-21-9, §29-21-13 and §29-21-13a of said code, all relating to
Public Defender Services generally; creating the Indigent Defense
Commission; specifying members and their terms; specifying certain powers and duties of the Indigent Defense Commission; requiring
public defender corporations to submit monthly financial statements
and reports; providing requirements for the creation, activation
and merger of public defender corporations; authorizing employment
of certain attorneys; providing for the order of appointment of
panel attorneys; establishing requirements for funding
applications; requiring corporations to submit proposed budgets;
authorizing amended funding contracts; authorizing executive
director to establish guidelines for submission of claims and
vouchers; establishing certain deadlines for submitting claims;
providing for periodic payment of fees to panel attorneys;
clarifying in-court work and meaning of separate cases;
establishing limitations on reimbursement of certain expenses;
requiring vouchers be reimbursed within a certain period; providing
for interest accruing on late reimbursements; and giving preference
to processing vouchers involving child abuse and neglect cases.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Barnes, Bowman, Caruth,
Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills,
Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--29.
The nays were: Boley, Oliverio and Sypolt--3.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4032, Relating to payment of
wages through a direct deposit system.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On pages two and three, section three, lines thirteen through
nineteen, by striking out all of subdivision (3) and inserting in
lieu thereof a new subdivision (3), to read as follows:
(3) By deposit or electronic transfer of immediately available
funds into an employee's payroll card account in a federally
insured depository institution. The term "payroll card account"
means an account in a federally insured depository institution that
is directly or indirectly established through an employer and to
which electronic fund transfers of the employee's wages, salary,
commissions or other compensation are made on a recurring basis,
whether the account is operated or managed by the employer, a
third-party payroll processor, a depository institution or another
person. "Payroll card" means a card, code or combination thereof
or other means of access to an employee's payroll card account, by
which the employee may initiate electronic fund transfers or use a
payroll card to make purchases or payments. Payment of employee
compensation by means of a payroll card must be agreed upon in writing by both the person, form or corporation paying the
compensation and the person being compensated.
The bill (Eng. Com. Sub. for H. B. No. 4032), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4032) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4032) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4032--A Bill to amend and
reenact §21-5-3 of the Code of West Virginia, 1931, as amended,
relating to payment of wages through a direct deposit system using
an electronic payment card or other means of electronic transfer;
defining terms; and requiring written agreement to use the payroll
card.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4059, Relating to medical
qualifications for school bus operators.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On page four, section four, after line thirty-six, by adding
a new subsection, designated subsection (e), to read as follows:
(e) Compliance with or failure to comply by a health care
provider licensed and authorized pursuant to chapter thirty of this
code, with the reporting requirements of the division of motor
vehicles regarding the provisions of subsection (c) of this section
does not constitute negligence, nor may compliance or noncompliance
with the requirements of this section be admissible as evidence of negligence in any civil or criminal action.
The bill (Eng. Com. Sub. for H. B. No. 4059), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4059) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4059) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4059--A Bill to amend and
reenact §18A-2-4 of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to employment of school
bus operators issued passenger endorsement on commercial driver
license through intrastate waiver program for diabetes; eligibility
for employment; conditions; negating negligence for noncompliance.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4094, Relating to
reimbursement of compensation paid to certain state employees for
job-related training, education or professional development.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page five, section two, line twenty-three, after the word
"circumstances" by inserting the word "when".
The bill (Eng. Com. Sub. for H. B. No. 4094), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4094) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4094) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4094--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §6C-4-1, §6C-4-2 and §6C-4-3, all relating to
reimbursement of compensation paid to certain state employees for training, education and professional development; defining terms;
requiring division of personnel propose rules for legislative
approval; and setting forth exemptions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4121, Authorizing the
participation of local governments in a purchasing card program to
be administered by the Auditor.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4121) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Sprouse--1.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4121) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4121--A Bill amend the Code
of West Virginia, 1931, as amended, by adding thereto three new
sections, designated §6-9-2a, §6-9-2b and §6-9-2c; to amend said
code by adding thereto a new section, designated §7-5-7a; and to
amend and reenact §8-12-5 of said code, all relating to authorizing
the participation of local governments in a purchasing card program
to be administered by the Auditor as chief inspector of public
offices; authorizing auditor to contract with institutions for
provision of the cards; authorizing auditor to propose rules;
creating local Government Purchasing Card Expenditure Fund; use of
moneys in fund; legislative appropriation of fund; and creating
offenses and criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4331, Eliminating the
requirement to send surrendered driver's licenses back to the
original state of licensure.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was reported by the Clerk and
adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1a. Surrender of license from other state or jurisdiction
prior to receipt of license from this state;
examination; fees required.
(a) The division of motor vehicles Division of Motor Vehicles
shall not issue a driver's license to a person who holds a valid
license to operate a motor vehicle issued by another state or
jurisdiction unless or until the applicant shall surrender to the
division the foreign license, or the person has signed and
submitted to the division an affidavit to the effect that the
person has surrendered all valid licenses issued to him or her by
other states or jurisdictions. Any surrendered license issued by
any other state or jurisdiction shall be returned to the division
of motor vehicles or similar agency in that state or jurisdiction
together with a notice destroyed or at the discretion of the
division retained by the division and the division shall notify the
original state of licensure that the person who surrendered the
license has been licensed in this state. It shall be unlawful for
a person to possess more than one valid driver's license at any time.
(b) Every driver shall, within thirty days after taking up
residence in this state, apply to the division for a driver's
license as prescribed in this article. For the purposes of this
chapter the presumption that a natural person is a resident of this
state is based on the provisions of section one-a, article three,
chapter seventeen-a of this code. The division may assign the
driver's license class, type, endorsements or restrictions based on
the applicant's prior licensing status, age and the type of
licensing system used by the state of prior licensing.
(c) All other applicable provisions of this article relating
to issuance, fees, expiration and renewal of licenses, and driver
examination of applicants shall also apply to this section.
§17B-2-3a. Graduated driver's licenses.
(a) Any person under the age of eighteen may not operate a
motor vehicle unless he or she has obtained a graduated driver's
license in accordance with the three-level graduated driver's
license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of
class or level of licensure, who operates a motor vehicle with any
measurable alcohol in his or her system is subject to the
provisions of section two, article five, chapter seventeen-c of
this code and section two, article five-a of said chapter. Any
person under the age of eighteen, regardless of class or licensure
level, is subject to the mandatory school attendance provisions of
section eleven, article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is
fifteen years or older meeting all other requirements prescribed in
this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one
instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the
provisions of section six of this article, and which is accompanied
by a writing, duly acknowledged, consenting to the issuance of the
graduated driver's license and executed by a parent or guardian
entitled to custody of the applicant;
(B) Presents a certified birth certificate copy of a birth
certificate issued by a state or other governmental entity
responsible for vital records or a valid and unexpired passport
issued by the United States government, evidencing that the
applicant meets the minimum age requirement and is of verifiable
identity;
(C) Passes the vision and written knowledge examination and
completes the driving under the influence awareness program, as
prescribed in section seven of this article;
(D) Presents a current school enrollment form or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; and
(E) Pays a fee of five dollars which shall permit the
applicant two attempts at the written knowledge test.
(2) Terms and conditions of instruction permit. -- A level one
instruction permit issued under the provisions of this section is valid until thirty days after the date the applicant attains the
age of eighteen and is not renewable. However, any permit holder
who allows his or her permit to expire prior to successfully
passing the road skills portion of the driver examination, and who
has not committed any offense which requires the suspension,
revocation or cancellation of the instruction permit, may reapply
for a new instruction permit under the provisions of section six of
this article. The division shall immediately revoke the permit
upon receipt of a second conviction for a moving violation of
traffic regulations and laws of the road or violation of the terms
and conditions of a level one instruction permit, which convictions
have become final unless a greater penalty is required by this
section or any other provision of this code. Any person whose
instruction permit has been revoked is disqualified from retesting
for a period of ninety days. However, after the expiration of
ninety days, the person may retest if otherwise eligible. In
addition to all other provisions of this code for which a driver's
license may be restricted, suspended, revoked or canceled, the
holder of a level one instruction permit may only operate a motor
vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver,
twenty-one years of age or older, or a driver's education or
driving school instructor who is acting in an official capacity as
an instructor, who is fully alert and unimpaired, and the only
other occupant of the front seat. The vehicle may be operated with
no more than two additional passengers, unless the passengers are family members;
(B) Between the hours of five a.m. and eleven p.m.;
(C) All occupants must use safety belts in accordance with the
provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Without any measurable blood alcohol content, in
accordance with the provisions of subsection (h), section two,
article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment or otherwise shows
compliance with the provisions of section eleven, article eight,
chapter eighteen of this code.
(F) A holder of a level one instruction permit who is under
the age of eighteen years may not use a wireless communication
device while operating a motor vehicle, unless the use of the
wireless communication device is for contacting a 911 system. A
law-enforcement officer may enforce the provisions of this
paragraph only as a secondary action when a law-enforcement officer
with probable cause detains a driver for a suspected violation of
another provision of this code. A person violating the provisions
of this paragraph is guilty of a misdemeanor and, upon conviction
thereof, shall for the first offense be fined twenty-five dollars;
for a second offense be fined fifty dollars; and for a third or
subsequent offense be fined seventy-five dollars.
(d) Level two intermediate driver's license. -- An applicant
sixteen years of age or older, meeting all other requirements of
the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two
intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section
six of this article;
(B) Has held the level one instruction permit conviction-free
for the one hundred eighty days immediately preceding the date of
application for a level two intermediate license;
(C) Has completed either a driver's education course approved
by the State Department of Education or thirty hours of
behind-the-wheel driving experience certified by a parent or legal
guardian or other responsible adult over the age of twenty-one as
indicated on the form prescribed by the division: Provided, That
nothing in this paragraph shall be construed to require any school
or any county board of education to provide any particular number
of driver's education courses or to provide driver's education
training to any student;
(D) Presents a current school enrollment form or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by
section seven of this article; and
(F) Pays a fee of five dollars.
(2) Terms and conditions of a level two intermediate driver's
license. -- A level two intermediate driver's license issued under
the provisions of this section shall expire thirty days after the
applicant attains the age of eighteen, or until the licensee qualifies for a level three full Class E license, whichever comes
first. In addition to all other provisions of this code for which
a driver's license may be restricted, suspended, revoked or
canceled, the holder of a level two intermediate driver's license
may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a.m. and eleven
p.m.;
(B) Only under the direct supervision of a licensed driver,
age twenty-one years or older, between the hours of eleven p.m. and
five a.m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to
operate a motor vehicle to prevent bodily injury or death of
another;
(C) All occupants shall use safety belts in accordance with
the provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers
under the age of nineteen, unless the passengers are family
members, in addition to the driver;
(E) Without any measurable blood alcohol content in accordance
with the provisions of subsection (h), section two, article five,
chapter seventeen-c of this code;
(F) Maintains current school enrollment or otherwise shows compliance with the provisions of section eleven, article eight,
chapter eighteen of this code;
(G) A holder of a level two intermediate driver's license who
is under the age of eighteen years may not use a wireless
communication device while operating a motor vehicle, unless the
use of the wireless communication device is for contacting a 911
system. A law-enforcement officer may enforce the provisions of
this paragraph only as a secondary action when a law-enforcement
officer with probable cause detains a driver for a suspected
violation of another provision of this code. A person violating
the provisions of this paragraph is guilty of a misdemeanor and,
upon conviction thereof, shall for the first offense be fined
twenty-five dollars; for a second offense be fined fifty dollars;
and for a third or subsequent offense be fined seventy-five
dollars.
(H) Upon the first conviction for a moving traffic violation
or a violation of paragraph (A), (B), (C), (D) or (G), subdivision
(1), subsection (d) of this section of the terms and conditions of
a level two intermediate driver's license, the licensee shall
enroll in an approved driver improvement program unless a greater
penalty is required by this section or by any other provision of
this code.
At the discretion of the commissioner, completion of an
approved driver improvement program may be used to negate the
effect of a minor traffic violation as defined by the commissioner
against the one year conviction-free driving criteria for early eligibility for a level three driver's license; and
(I) Upon the second conviction for a moving traffic violation
or a violation of the terms and conditions of the level two
intermediate driver's license, the licensee's privilege to operate
a motor vehicle shall be revoked or suspended for the applicable
statutory period or until the licensee's eighteenth birthday,
whichever is longer unless a greater penalty is required by this
section or any other provision of this code. Any person whose
driver's license has been revoked as a level two intermediate
driver, upon reaching the age of eighteen years and if otherwise
eligible may reapply for an instruction permit, then a driver's
license in accordance with the provisions of sections five, six and
seven of this article.
(e) Level three, full Class E license. -- The level three
license is valid until the day designated by the commissioner of
the month in which the licensee attains the age of twenty-one
thirty days after the date the licensee attains his or her
twenty-first birthday. Unless otherwise provided in this section
or any other section of this code, the holder of a level three full
Class E license is subject to the same terms and conditions as the
holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate
a motor vehicle has not been suspended, revoked or otherwise
canceled and who meets all other requirements of the code may be
issued a level three full Class E license without further
examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article;
(B) Has held the level two intermediate license conviction
free for the twelve-month period immediately preceding the date of
the application;
(C) Has completed any driver improvement program required
under paragraph (G), subdivision (2), subsection (d) of this
section; and
(D) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article; and
(B) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code.
(f) A person violating the provisions of the terms and
conditions of a level one or level two intermediate driver's
license, is guilty of a misdemeanor and, upon conviction thereof,
shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or
subsequent offense be fined seventy-five dollars.
§17B-2-5. Qualifications, issuance and fee for instruction
permits.
(a) Any person who is at least fifteen years of age may apply
to the division for an instruction permit. However, any person who
has not attained the age of eighteen shall comply with the
provisions of section three-a of this article. The division may,
in its discretion, after the applicant has successfully passed all
parts of the examination other than the road skills test, issue to
the applicant an instruction permit which entitles the applicant
while having the permit in his or her immediate possession to drive
a motor vehicle upon the public highways when accompanied by a
licensed driver of at least twenty-one years of age, a driver's
education or driving school instructor that is acting in an
official capacity as an instructor, who is alert and unimpaired or
a certified division license examiner acting in an official
capacity as an examiner, who is occupying a seat beside the driver.
(1) Any instruction permit issued to a person under the age of
eighteen years shall be issued in accordance with the provisions of
section three-a of this article.
(2) Any permit issued to a person who has reached the age of
eighteen years is valid for a period of sixty ninety days and may
be renewed within a period of sixty days without reexamination for
an additional period of sixty days or a new permit issued. The fee
for the instruction permit is four five dollars, one dollar of which shall be paid into the state treasury and credited to the
state road fund, and the other three dollars of which shall be paid
into the state treasury and credited to the general fund to be
appropriated to the state police for application in the enforcement
of the road law.
(b) Any person sixteen years of age or older may apply to the
division for a motorcycle instruction permit. On and after the
first day of January, two thousand one, any Any person under the
age of eighteen must have first completed the requirements for a
level two intermediate driver's license set forth in paragraphs
(B), (C) and (D), subdivision (1), subsection (j), section three-a
of this article, junior driver's license or driver's license before
or a Class E driver's license before being eligible for a
motorcycle instruction permit.
The division may, in its discretion, after the applicant has
successfully passed all parts of the motorcycle examination other
than the driving test, and presented documentation of compliance
with the provisions of section eleven, article eight, chapter
eighteen of this code, if applicable, issue to the applicant an
instruction permit which entitles the applicant while having the
permit in his or her immediate possession to drive a motorcycle
upon the public streets or highways for a period of ninety days,
during the daylight hours between sunrise and sunset only. No
holder of a motorcycle instruction permit shall operate a
motorcycle while carrying any passenger on the vehicle.
A motorcycle instruction permit is not renewable, but a qualified applicant may apply for a new permit. The fee for a
motorcycle instruction permit is five dollars, which shall be paid
into a special fund in the state treasury known as the motorcycle
license examination fund as established in section seven-c, article
two of this chapter motor vehicle fees fund.
§17B-2-6. Application for license or instruction permit; fee to
accompany application.
(a) Every application for an instruction permit or for a
driver's license shall be made upon a form furnished by the
division. Every application shall be accompanied by the proper fee
and payment of the fee shall entitle an applicant under the age of
eighteen to not more than two attempts at the written test or not
more than three attempts to pass the road skills test. An
applicant age eighteen years or older is entitled to not more than
two attempts at the written test or not more than three attempts to
pass the road skills test within a period of sixty ninety days from
the date of issuance of the instruction permit. An applicant who
fails either the written test or the road skills test may not be
tested twice within a period of one week.
(b) Any applicant who has not been previously licensed must
hold an instruction permit for a minimum of thirty days. For the
purposes of this section, the term "previously licensed" means an
applicant who has obtained at least a level two one graduated
license or junior driver's license issued under the provisions of
this article or has obtained an equal or greater level of licensure
if previously licensed in another state.
(c) Every said application shall state the full legal name,
date of birth, sex, and residence address of the applicant and
briefly describe the applicant and shall state whether the
applicant has theretofore been a licensed driver and, if so, when,
and by what state or country and whether any such license has ever
been suspended or revoked within the five years next preceding the
date of application, or whether an application has ever been
refused and, if so, the date of and reason for the suspension,
revocation or refusal, whether the applicant desires a notation on
the driver's license indicating that the applicant is an organ
donor, in accordance with article one-b of this chapter, a
diabetic, deaf, or hard of hearing, or has any other handicap or
disability and such other pertinent information as the commissioner
may require.
§17B-2-7. Examination of applicants.
(a) Upon the presentment of the applicant's birth certificate,
or a certified copy of the birth certificate issued by a state or
other governmental entity responsible for vital records or a valid
and unexpired passport issued by the United States government, as
evidence that the applicant is of lawful age and verifiable
identity, the Division of Motor Vehicles shall examine every
applicant for a license to operate a motor vehicle in this state,
except as otherwise provided in this section. The examination
shall include a test of the applicant's eyesight, the applicant's
ability to read and understand highway signs regulating, warning,
and directing traffic, the applicant's knowledge of the traffic laws of this state, and the applicant's knowledge of the effects of
alcohol upon persons and the dangers of driving a motor vehicle
under the influence of alcohol. The examination shall also include
an actual demonstration of ability to exercise ordinary and
reasonable control in the operation of a motor vehicle, and any
further physical and mental examination as the division of motor
vehicles Division of Motor Vehicles considers necessary to
determine the applicant's fitness to operate a motor vehicle safely
upon the highways.
(b) The commissioner shall propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code concerning the examination of
applicants for licenses and the qualifications required of
applicants, and the examination of applicants by the division shall
be in accordance with the rules. The rules shall provide for the
viewing of educational material or films on the medical,
biological, and psychological effects of alcohol upon persons, the
dangers of driving a motor vehicle while under the influence of
alcohol and the criminal penalties and administrative sanctions for
alcohol and drug related motor vehicle violations.
(c) After successful completion of the examination required by
this section, section three-a, or section seven-b of this article,
and prior to the issuance of a license pursuant to the provisions
of section eight of this article, every applicant for a driver's
license, junior driver's license, graduated driver's license, or
motorcycle-only license shall attend a mandatory education class on the dangers and social consequences of driving a motor vehicle
while under the influence of alcohol. To the extent practicable,
the commissioner shall use as lecturers at those classes persons
who can relate first-hand experiences as victims or family members
of victims of alcohol-related accidents or drivers who have been
involved in alcohol-related accidents which caused serious bodily
injury or death.
§17B-2-8. Issuance and contents of licenses; fees.
(a) The division shall, upon payment of the required fee,
issue to every applicant qualifying therefor a driver's license,
which shall indicate the type or general class or classes of
vehicle or vehicles the licensee may operate in accordance with
this chapter or chapter seventeen-e of this code, or
motorcycle-only license. Each license shall contain a coded number
assigned to the licensee, the full legal name, date of birth,
residence address, a brief description and a color photograph of
the licensee and either a facsimile of the signature of the
licensee or a space upon which the signature of the licensee shall
be written with pen and ink immediately upon receipt of the
license. No license is valid until it has been so signed by the
licensee. Provided, that the commissioner may issue upon proper
documentation, a duplicate or renewed valid without-photo license
for resident applicants temporarily out of state.
(b) A driver's license which is valid for operation of a
motorcycle shall contain a motorcycle endorsement.
(c) The division shall use such process or processes in the issuance of licenses that will, insofar as possible, prevent any
alteration, counterfeiting, duplication, reproduction, forging or
modification of, or the superimposition of a photograph on, the
license.
(b) (d) The fee for the issuance of a Class E driver's license
is two dollars and fifty cents per year for each year the license
is issued to be valid. The fee for issuance of a Class D driver's
license is six dollars and twenty-five cents per year for each year
the license is issued to be valid. An additional fee of fifty
cents shall be collected from the applicant at the time of original
issuance or each renewal and the additional fee shall be deposited
in the "combined voter registration and driver's licensing fund,"
established pursuant to the provisions of section twelve, article
two, chapter three of this code. The additional fee for adding a
motorcycle endorsement to a driver's license is one dollar per year
for each year the license is issued.
(e) The fee for issuance of a motorcycle-only license is two
dollars and fifty cents for each year for which the motorcycle
license is to be valid. The fees for the motorcycle endorsement or
motorcycle-only license shall be paid into a special fund in the
State Treasury known as the Motorcycle Safety Fund as established
in section seven, article one-d of this chapter.
(c) (f) On or after the first day of January, two thousand
one, the The fee for the issuance of either the level one or level
two graduated driver's license as prescribed in section three-a of
this article is five dollars.
(g) The division may use an address on the face of the license
other than the applicant's address of residence if:
(1) The applicant has a physical address or location that is
not recognized by the post office for the purpose of receiving
mail;
(2) The applicant is enrolled in a state address
confidentiality program or the alcohol test and lock program;
(3) The applicant's address is entitled to be suppressed under
a state or federal law or suppressed by a court order; or
(4) At the discretion of the commissioner, the applicant's
address may be suppressed to provide security for classes of
applicants such as law-enforcement officials, protected witnesses
and members of the state and federal judicial systems.
The bill (Eng. Com. Sub. for H. B. No. 4331), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Sprouse--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4331) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4331) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4333, Relating to requiring
an insurance company to withhold a specified amount from insurance
proceeds to cover costs of fire cleanup of a structure.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On pages three and four, section nine-b, lines twenty-nine
through forty-four, by striking out all of subsection (b) and
inserting in lieu thereof a new subsection (b), to read as follows:
(b) The Insurance Commissioner may propose rules for legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a, to provide for the establishment of
escrow accounts for the segregation of insurance proceeds for
repairs, removal or securing structures located within a
municipality whenever the loss to a structure equals or exceeds
sixty per cent of the aggregate limits of liability on all policies
covering the structure. The rules may provide that any escrow
requirements established are applicable only with respect to
structures in municipalities that have adopted an ordinance or
other valid regulation authorizing the escrow procedure established
by the rules.
The bill (Eng. Com. Sub. for H. B. No. 4333), as amended, was
then ordered to third reading.
Eng. House Bill No. 4348, Adding language to the code for fees
for tests and certificates that were already imposed.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4348) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4348) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 4348--A Bill to amend and reenact §22A-1-4
of the code of West Virginia, 1931, as amended, clarifying and
affirming the practice of the Office of Miners' Health, Safety and
Training to charge reasonable fees for providing certain tests,
certificates and publications.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive
gambling.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §29-22A-10C and §29-22A-19 of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10c. Surcharge; Capital Reinvestment Fund.
(a) For all fiscal years beginning on or after the first day
of July, two thousand one, there shall be imposed a surcharge of
ten percent against the excess of total net terminal income
generated from a licensed racetrack for that fiscal year over total
net terminal income from that licensed racetrack for the fiscal
year ending the thirtieth day of June, two thousand one.
(b) A Capital Reinvestment Fund is hereby created within the
lottery fund. Forty-two percent of the surcharge amount
attributable to each racetrack shall be retained by the commission
and deposited into a separate Capital Reinvestment Account for that
licensed racetrack. For each dollar expended by a licensed
racetrack for capital improvements at the racetrack, at the
location of any amenity associated with the licensed racetrack's
destination resort facility operations, or at adjacent facilities
owned by the licensee, having a useful life of seven or more years
and placed in service after the first day of April, two thousand one, the licensed racetrack shall receive one dollar in recoupment
from its Capital Reinvestment Fund Account: Provided, That in the
case of thoroughbred horse tracks, four cents of every dollar in
recoupment shall be reserved into a separate account, which shall
only be spent on capital improvements and upgrading to facilities
used for the housing and care of horses, facilities located inside
the perimeter of the racing surface, including the surface thereof,
facilities used for housing persons responsible for the care of
horses, and that any such capital improvements and upgrading shall
be subject to recoupment under this section only if they have been
approved by the Horsemen's Benevolent and Protective Association
acting on behalf of the horsemen: Provided, That in the case of
greyhound race tracks, four cents of every dollar in recoupment
shall be spent on capital improvements and upgrading in the kennel
area or other areas at the track. If a licensed racetrack's
unrecouped capital improvements exceed its capital reinvestment
fund account at the end of any fiscal year, the excess improvements
may be carried forward to seven subsequent fiscal years. Provided,
however, that excess improvements relating to remedial flood
capital improvements may be carried forward to fifteen subsequent
fiscal years.
(c) Fifty-eight percent of the surcharge amount plus any
moneys remaining in a racetrack's Capital Reinvestment Fund Account
at the end of any fiscal year shall be deposited in the State
Excess Lottery Revenue Fund created in section eighteen-a, article
twenty-two of this chapter.
§29-22A-19. Compulsive gambling treatment fund; contract
requirements for compulsive gamblers treatment
program.
(a) There is hereby created and established a separate special
account to be known as the "Compulsive Gambling Treatment Fund".
Such The fund shall be appropriated from the Commission's
administrative expense account and shall be not less than one
hundred fifty thousand dollars nor more than five hundred thousand
dollars per fiscal year, as determined by the Commission, as well
as other amounts designated for in this chapter to provide funds
for compulsive gambling treatment programs in the state.
(b) The Department of Health and Human Resources shall
administer the grants and funds issued from the "Compulsive
Gambling Treatment Fund".
(c) The Department of Health and Human Resources shall develop
criteria consistent with this section which a treatment program for
compulsive gamblers must meet in order to become eligible for a
grant from the funds made available for such treatment programs
pursuant to this provision. The department, in conjunction with
the commission, shall develop a formula for the distribution of
available funds which will result in an equitable distribution
among programs submitted which meet the eligibility criteria for
grants as developed by the department.
The Commission shall report annually to the Legislature the
number and amounts of grants distributed and the number of people
served by such programs.
(d) The Department of Health and Human Resources is not
subject to the purchasing requirements as set forth in the
legislative rule of the Purchasing Division of the Department of
Administration: Provided, That the Department of Health and Human
Resources shall comply with all contract requirements set forth in
this section.
(e) The Department of Health and Human Resources shall develop
procedures for bidding and awarding the contract, which must
include:
(1) The procedures to be followed for submitting bids and the
procedures for making awards;
(2) The proposed general terms and conditions for the
contract;
(3) The description of the commodities and services required
for the contract, with sufficient clarity to assure that there is
a comprehensive understanding of the project's scope and
requirements, including, but not limited to, the following
elements:
(A) Services to be provided, including education, prevention,
crisis intervention, outreach, assessment, referral and treatment
for problem gamblers, and protocols for emergency treatment;
(B) Requirements for the business and professional licensing
of providers, parameters for media-related advertising and public
service announcements;
(C) Training, licensing, monitoring, evaluation and reporting
requirements;
(D) Requirements for maintaining the confidentiality of the
client population; and
(E) Rights to conduct financial and performance audits;
(4) A proposed time schedule commencement and completion of
the contract;
(5) A budget for the contract;
(6) Requirements or restrictions for the subletting of
specific portions of the contract, if any; and
(7) Requirements for professional liability and other
insurance coverage.
(f) The Department of Health and Human Resources may award the
contract based on low bid, best value, sole source or other basis,
or may choose to reject all bids and reissue an invitation for
bids: Provided, That the Department of Health and Human Resources
shall document the basis of its decisions under this subsection and
shall report its decisions in the annual report required in
subsection (j) of this section.
(g) The Department of Health and Human Resources shall hold a
post award conference with the contractor to ensure a clear and
mutual understanding of all contract terms and conditions, and the
respective responsibilities of all parties. The agenda for the
conference shall include, at a minimum, the introduction of all
participants and identification of department and contractor key
personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of
requirements set forth in the bid request;
(2) The contract terms and conditions, particularly any
special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract
monitoring and progress measurement;
(5) The rights and obligations of both parties and the
contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on
its performance both during and at the conclusion of the contract
and that such information may be considered in the selection of
future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with
particular attention to whether payment will be made according to
outcomes achieved by the contractor; and
(9) An explanation of the limits of authority of the personnel
of both the department and the contractor.
(h) The Department of Health and Human Resources shall develop
a comprehensive and objective monitoring checklist which:
(1) Measures treatment outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance on a quarterly and annual
basis.
(i) The Commission may not influence or interfere with the
operation of the program or the advertising and marketing decisions
of the contractor.
(j) The Department of Health and Human Resources may monitor
contract performance, review compliance with the contract's terms
and conditions, request and review pertinent information in support
of tendered invoices and conduct other investigation so as to
enable it to properly assess whether the project's objectives and
the contract's terms and conditions are being met. However, the
Department of Health and Human Resources may not unduly influence
or interfere with the operation of the program or the advertising
and marketing decisions of the contractor.
(k) Once any contract to render services under a compulsive
gambling treatment program is awarded pursuant to this section, the
contract shall be administrated by the Department of Health and
Human Resources, and the department shall maintain all records
pertaining to each request for reimbursement and disbursement for
under said contract for a minimum of five (5) years.
(l) The contractor may prominently promote, display or
advertise the Compulsive Gambler's Treatment Program, its purpose,
its hotline or its program events in any location in which the
Lottery Commission promotes, displays, advertises or conducts
operations or in any other location: Provided, That the Lottery
Commission's name, logo or other indicia may not appear on any
advertising, marketing or promotional material of the contractor.
(m) The Department of Health and Human Resources shall report
annually to the Joint Committee on Government and Finance on the
amount of program funds distributed, the amount of administrative
fee retained by the department and its use of the fee, the number of persons served by the program, and on each requirement set forth
in this section.
The bill (Eng. Com. Sub. for H. B. No. 4402), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4402) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4402) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4402--A Bill to amend and
reenact §29-22A-10C and §29-22A-19 of the Code of West Virginia,
1931, as amended, relating to extending the period excess
improvements related to remedial flood capital improvements may be
carried forward for fifteen subsequent fiscal years; treating
compulsive gambling; authorizing the Department of Health and Human
Resources to bid and award contracts for treatment programs;
requiring development of procedures; establishing contract
requirements; requiring post award conferences; providing for
performance monitoring; prohibiting interference with operation of
program; prohibiting use of Lottery Commission logo on advertising
media; and requiring annual report.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4404, Discount Medical Plan
Organizations and Discount Prescription Drug Plan Organizations
Act.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On page thirteen, section eight, lines twenty-eight through
thirty-one, by striking out all of subsection (c) and inserting in lieu thereof a new subsection (c), to read as follows:
(c) When a marketer or discount medical plan organization
sells a discount medical plan in conjunction with any other
products, the marketer or discount medical plan organization shall:
(1) Provide the charges for each discount medical plan in
writing to the member; or
(2) Reimburse the member for all periodic charges for the
discount medical plan and all periodic charges for any other
product if the member cancels his or her membership in accordance
with subdivision (1), subsection (b) of this section.
The bill (Eng. Com. Sub. for H. B. No. 4404), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4404) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4404) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4438, Relating to air
pollution control.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-1. Declaration of policy and purpose.
It is hereby declared to be the public policy of this state
and the purpose of this article to achieve and maintain such levels
of air quality as will protect human health and safety, and to the
greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the
people, promote the economic and social development of this state
and facilitate the enjoyment of the natural attractions of this
state.
To these ends it is the purpose of this article to provide for
a coordinated statewide program of air pollution prevention,
abatement and control; to facilitate cooperation across
jurisdictional lines in dealing with problems of air pollution not
confined within single jurisdictions; to assure the economic
competitiveness of the state by providing for the timely processing
of permit applications and other authorizations under this article;
and to provide a framework within which all values may be balanced
in the public interest.
Further, it is the public policy of this state to fulfill its
primary responsibility for assuring air quality pursuant to the
"Federal Clean Air Act," as amended.
§22-5-11. Construction, modification or relocation permits
required for stationary sources of air pollutants.
(a) No Unless otherwise specifically provided in this article,
no person shall construct, modify or relocate any stationary source
of air pollutants without first obtaining a construction,
modification or relocation permit as provided in this section
article.
(b) The director secretary shall by rule specify the class or
categories of stationary sources to which this section applies.
Application for permits shall be made upon such form, in such manner, and within such time as the rule prescribes and shall
include such information, as in the judgment of the director
secretary, will enable him or her to determine whether such source
will be so designed as to operate in conformance with the
provisions of this article or any rules of the director secretary.
The director shall, within a reasonable time not to exceed twelve
months for major sources, as defined by the director and six months
for all other sources after the receipt of a complete application,
issue such permit unless he or she determines that the proposed
construction, modification or relocation will not be in accordance
with this article or rules promulgated thereunder, in which case
the director shall issue an order for the prevention of such
construction, modification or relocation. For the purposes of this
section, a modification is deemed to be any physical change in, or
change in the method of operation of, a stationary source which
increases the amount of any air pollutant discharged by such source
above a de minimis level set by the director.
(c) Unless otherwise specifically provided in this article,
the secretary shall issue a permit for a major stationary source
within a reasonable time not to exceed three hundred sixty-five
calendar days, after the secretary determines that the application
is complete.
(d) Unless otherwise specifically provided in this article,
the secretary shall issue a permit for all other sources including
modifications of existing major stationary sources which are not
major modifications within a reasonable time not to exceed ninety calendar days, after the date the secretary determines the
application is complete. The Secretary may extend this time by
thirty calendar days to allow for public comment.
(e) A permit application will be denied if the secretary
determines that the proposed construction, modification or
relocation will not be in accordance with this article or rules
promulgated thereunder.
(f) For purposes of this section, a modification is any
physical change in, or change in the method of operation of, a
stationary source which increases the amount of any air pollutant
discharged by a source above the de minimis level set by the
secretary.
(g) With respect to the construction of new nonmajor
stationary sources, or modifications of nonmajor stationary
sources, or modifications which are not major modifications to
existing major stationary sources, or relocations of nonmajor
stationary sources, the following requirements apply:
(1) The secretary shall issue an administrative update to a
permit issued under this section with respect to any of these
sources, unless he or she determines that the proposed
administrative update will not be in accordance with this article
or rules promulgated hereunder, in which case the secretary shall
issue an order denying the administrative update. Any
administrative update shall be issued by the secretary within a
reasonable time not to exceed sixty calendar days after receipt of
a complete application. Administrative updates are minor revisions of existing permits as further described and authorized by rule.
(2) The secretary shall, within a reasonable time not to
exceed forty-five calendar days after the date the secretary
determines that an application is complete, issue a registration
under a general permit applicable to any of these sources, unless
he or she determines that the proposed construction, modification
or relocation will not be in accordance with this article or rules
promulgated hereunder. General permits are permits authorizing the
construction, modification or relocation of a category of sources
by the same owner or operator or involving the same or similar
processes or pollutants upon the terms and conditions specified in
the general permit for those types of sources.
(3) The secretary shall, within a reasonable time not to
exceed forty-five calendar days after receipt of a complete
application, issue a temporary permit or a relocation permit,
unless he or she determines that the proposed construction,
modification or relocation will not be in accordance with this
article or rules promulgated hereunder. Temporary permits are
permits authorizing the owner or operator to make limited changes
for limited periods of time as further described and authorized by
rule.
(e) The secretary shall determine whether an application filed
under this section is complete within thirty calendar days after
receipt of that application at which time the secretary shall
notify the applicant in writing as to whether the application is
complete or specify any additional information required for the application to be complete.
(f) The secretary, shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty nine-a of this code, to implement the provisions of
this section by the first day of August, two thousand eight.
§22-5-11a. Activities authorized in advance of permit issuance.
(a) With respect to the modifications of nonmajor stationary
sources, or modifications which are not major modifications to
existing major stationary sources, the following activities are
authorized in advance of permit issuance. Any authorized
activities undertaken by or on behalf of the permit applicant prior
to the issuance of a final permitting action by the secretary are
undertaken at the permit applicant's own risk and with the
knowledge that the application for a permit or permit modification
may be denied:
(1) Receiving or storing on-site or off-site any equipment or
supplies which make up in part or in whole an emission unit or any
support equipment, facilities, building or structure.
(2) A person who holds an active West Virginia air quality
permit issued under this article at an existing source, and who has
applied to the secretary for permission to alter, expand or modify
that source or to allow a new emissions unit at that source, may
begin the construction of any such alteration, expansion,
modification or new emission unit in advance of permit issuance in
accordance with this section. The person may not operate any
altered, expanded, modified or new emission unit without first obtaining an air quality permit as required by rules promulgated by
the secretary.
(3) The following sources are ineligible for submission of an
application for permission to commence construction in advance of
permit issuance:
(A) Sources subject to the "Federal Clean Air Act" subsections
112(g) or 112(j).
(B) Sources seeking federally enforceable permit conditions in
order to avoid otherwise applicable standards;
(C) Sources requiring a specific case-by-case emission
limitation or standard under 45CSR21 or 45CSR27.
(4) (A) To qualify for the authorization to construct in
advance of permit issuance as provided in this section, the
permittee shall submit to the secretary an application for
permission to commence construction in advance of permit issuance.
(B) Such application for permission to commence construction
shall include all of the following:
(1) The name and location of the source and the name and
address of the permittee;
(2) The permit number of each active permit issued under this
article for such source;
(3) The nature of the sources and equipment associated with
such alteration, expansion, modification or new emission unit;
(4) An estimate of the maximum hourly and annual emissions of
regulated air pollutants increased as a result of such alteration,
expansion, modification or new emission unit;
(5) The air pollution control devices or methods that are to
be employed in connection with the alteration, expansion,
modification or new emission unit;
(6) A listing of the applicable state and federal air quality
regulatory requirements for alteration, expansion, modification or
new emission unit, and sufficient information which, in the
judgement of the secretary, will demonstrate compliance with any
applicable state and federal air quality regulatory requirements;
(7) The anticipated construction or building schedule for
alteration, expansion, modification or new emission unit;
(8) A certification signed by the responsible official that
the source, equipment and devices that are subject to a request for
construction authorization will not be operated until the permittee
has obtained a permit under rules promulgated by the secretary;
(9) A certification by the responsible official that any
construction undertaken prior to the issuance of a final permit
under rules of the secretary is undertaken at the permittee's own
risk and with the knowledge that the permittee may be denied a
permit or permit modification without regard to the permittee's
financial investment or addition to or modification of the source;
(10) A certification signed by the responsible official that
all of the information contained in the application is complete and
accurate to the best of the responsible official's knowledge and
ability; and
(11) Upon submission of the application for permission to
construct, the applicant shall give notice by publishing a Class I legal advertisement of the applicant's intent to alter or expand
the physical arrangement or operation of an existing stationary
source and the opportunity to provide written comment to the
secretary within thirty calendar days of the publication. Public
notice shall be in a newspaper having general circulation in the
county or counties where the facility is located. The notice shall
contain the information required by rules promulgated by the
secretary. Within fifteen days of completion of the public comment
period, the secretary shall consider and respond to all written
comments. If the secretary finds that concerns raised by the
public comment period give rise to issues or concerns that would
cause a construction or operational permit not to be issued, the
secretary may issue a revocation or stay of the authorization to
construct until those issues or concerns are resolved.
(c) The secretary shall determine whether an application for
permission to commence construction in advance of permit issuance
is complete within fifteen calendar days after receipt of the
application at which time the secretary shall notify the applicant
in writing as to whether the application is complete or specify any
additional information required for the application to be complete.
(d) Within fifteen calendar days after the secretary has made
a determination that an application for permission to commence
construction in advance of permit issuance is complete, the
secretary shall notify the applicant in writing of his or her
determination as to whether each of the following conditions has or
has not been satisfied:
(1) The applicant is and has been for a period of at least
three years in substantial compliance with all other active permits
and applicable state and federal air quality regulatory
requirements under this article;
(2) The applicant has demonstrated that the alteration,
expansion, modification or new emission unit will be in compliance
with all applicable state and federal air quality regulatory
requirements;
(3) The alteration, expansion, modification or new emission
unit will not interfere with attainment or maintenance of an
applicable ambient air quality standard, cause or contribute to a
violation of an applicable air quality increment or be inconsistent
with the intent and purpose of this article;
(4) The facility will be altered or expanded so that it will
be used for either the same or a similar use as the use already
permitted;
(5) The alteration or expansion will not result in a
disproportionate increase in size of the facility already
permitted; and
(6) The alteration or expansion will result in the same or
substantially similar emissions as the facility already permitted.
If the secretary finds that all of the conditions have been
satisfied, the notice issued by the secretary shall state that
construction of the alteration, expansion, modification or new
emission unit in advance of permit issuance may begin immediately.
If the secretary finds that one or more of the conditions has not been met, the notice shall state that the requested construction,
alteration, expansion, modification or new emission unit may not
begin prior to issuance of a new or modified permit.
(e) If at any time during the construction of such alteration,
expansion, modification or new emission unit, the secretary
determines that the source is not likely to qualify for a permit or
permit modification under applicable rules, the secretary may order
that construction cease until the secretary makes a decision on the
application for a permit or permit modification. If the secretary
orders that construction cease, then construction of the
alteration, expansion, modification or new emission unit may resume
only if the secretary either makes a subsequent written
determination that the circumstances that resulted in such order
have been adequately addressed or if the secretary issues a permit
or permit modification under the rules that authorize construction
to resume.
(f) The secretary shall evaluate an application for a permit
or permit modification under the rules and make a decision on the
same basis as if the construction of the alteration, expansion,
modification or new emission unit in advance of permit issuance had
not been authorized pursuant to this section. No evidence
regarding any contract entered into, financial investment made,
construction undertaken, or economic loss incurred by any person or
permittee who proceeds under this section without first obtaining
a permit under this article is admissible in any contested case or
judicial proceeding involving any permit required under the rules. No evidence as to any determination or order by the secretary
pursuant to this section shall be admissible in any contested case
or judicial proceeding related to any permit required under this
article.
(g) Any permittee who proceeds under this section shall be
precluded from bringing any action, suit or proceeding against the
state, the officials, agents, and employees of the state or the
secretary for any loss resulting from any contract entered into,
financial investment made, construction undertaken, or economic
loss incurred by the permittee in reliance upon the provisions of
this section.
(h) This section does not relieve any person of the obligation
to comply with any other requirement of state law, including any
requirement to obtain any other permit or approval prior to
undertaking any activity associated with preparation of the site or
the alteration or expansion of the physical arrangement or method
of operation of a source at a facility for which a permit is
required under the rules.
(i) This section does not relieve any person from any
preconstruction or construction prohibition imposed by any federal
requirement, federal delegation, federally approved requirement in
any state implementation plan, or federally approved requirement
under the Title V permitting program, as determined solely by the
secretary. This section does not apply to any construction,
alteration, or expansion that is subject to requirements for
prevention of significant deterioration or federal nonattainment new source review, as determined solely by the secretary. This
section does not apply if it is inconsistent with any federal
requirement, federal delegation, federally approved requirement in
any state implementation plan, or federally approved requirement
under the Title V permitting program, as determined solely by the
secretary.
(j) A permittee who submits an application to commence
construction in advance of permit issuance under this section shall
pay to the department a fee of two hundred dollars for each
application submitted to cover a portion of the administrative
costs of implementing this section.
(k) The secretary, in accordance with chapter twenty-nine-a of
this code, shall propose legislative rule that may be necessary to
implement the provisions of this section by the first day of
August, two thousand eight.
(l) The Secretary is directed to report back to the Joint
Committee on Government and Finance by the first day of January,
two thousand ten on the impact of the implementation of the
expedited permits authorized pursuant to this section. The report
shall include, but not be limited to, assessments regarding the
number and types of facilities utilizing this section, whether the
agency has found this expedited process has assisted these
facilities to implement construction and make revisions to their
operations efficiently, without adverse impacts on the agency, the
permitting process, or state-wide air quality.
§22-5-14. Administrative review of permit actions.
Any person whose interest may be affected, including, but not
necessarily limited to, the applicant and any person who
participated in the public comment process, by a permit issued,
modified or denied by the Secretary, or construction authorization
pursuant to section eleven-a of this article, may appeal such
action of the Secretary to the air quality board pursuant to
article one, chapter twenty-two-b of this code.
The bill (Eng. Com. Sub. for H. B. No. 4438), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr.
President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4438) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4438) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt,
Unger, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4438) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4465, Relating to fees charged by the
Secretary of State.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by Secretary of State.
(a) Except as may be otherwise provided in this code, the
Secretary of State shall charge for services rendered in his or her
office the following fees to be paid by the person to whom the
service is rendered at the time it is done:
(1) For filing, recording, indexing, preserving a record of
and issuing a certificate relating to the formation, amendment,
change of name, registration of trade name, merger, consolidation,
conversion, renewal, dissolution, termination, cancellation,
withdrawal revocation and reinstatement of business entities
organized within the state, as follows:
(A) Articles of incorporation of for-profit
corporation$50.00
(B) Articles of incorporation of nonprofit
corporation25.00
(C) Articles of organization of limited liability
company100.00
(D) Agreement of a general partnership50.00
(E) Certificate of a limited partnership100.00
(F) Agreement of a voluntary association50.00
(G) Articles of organization of a business trust50.00
(H) Amendment or correction of articles of incorporation,
including change of name or increase of capital stock, in addition
to any applicable license tax25.00
(I) Amendment or correction, including change of name, of
articles of organization of business trust, limited liability
partnership, limited liability company or professional limited
liability company or of certificate of limited partnership or
agreement of voluntary association25.00
(J) Amendment and restatement of articles of incorporation,
certificate of limited partnership, agreement of voluntary
association or articles of organization of limited liability
partnership, limited liability company or professional limited
liability company or business trust25.00
(K) Registration of trade name, otherwise designated as a true
name, fictitious name or D.B.A. (doing business as) name for any
domestic business entity as permitted by law25.00
(L) Articles of merger of two corporations, limited
partnerships, limited liability partnerships, limited liability
companies or professional limited liability companies, voluntary
associations or business trusts.25.00
(M) Plus for each additional party to the merger in excess of
two. . . .15.00
(N) Statement of conversion, when permitted, from one business
entity into another business entity, in addition to the cost of
filing the appropriate documents to organize the surviving entity
25.00
(O) Articles of dissolution of a corporation, voluntary
association or business trust, or statement of dissolution of a
general partnership25.00
(P) Revocation of voluntary dissolution of a corporation,
voluntary association or business trust15.00
(Q) Articles of termination of a limited liability company,
cancellation of a limited partnership or statement of withdrawal of
limited liability partnership25.00
(R) Reinstatement of a limited liability company or
professional limited liability company after administrative
dissolution25.00
(2) For filing, recording, indexing, preserving a record of
and issuing a certificate relating to the registration, amendment,
change of name, merger, consolidation, conversion, renewal,
withdrawal or termination within this state of business entities
organized in other states or countries, as follows:
(A) Certificate of authority of for-profit corporation
$100.00
(B) Certificate of authority of nonprofit corporation
50.00
(C) Certificate of authority of foreign limited liability
companies150.00
(D) Certificate of exemption from certificate of authority
25.00
(E) Registration of a general partnership50.00
(F) Registration of a limited partnership150.00
(G) Registration of a limited liability partnership for
two-year term500.00
(H) Registration of a voluntary association50.00
(I) Registration of a trust or business trust50.00
(J) Amendment or correction of certificate of authority of a
foreign corporation, including change of name or increase of
capital stock, in addition to any applicable license tax25.00
(K) Amendment or correction of certificate of limited
partnership, limited liability partnership, limited liability
company or professional limited liability company, voluntary
association or business trust25.00
(L) Registration of trade name, otherwise designated as a true
name, fictitious name or D.B.A. (doing business as) name for any
foreign business entity as permitted by law25.00
(M) Amendment and restatement of certificate of authority or
of registration of a corporation, limited partnership, limited
liability partnership, limited liability company or professional
limited liability company, voluntary association or business trust
25.00
(N) Articles of merger of two corporations, limited
partnerships, limited liability partnerships, limited liability
companies or professional limited liability companies, voluntary
associations or business trusts25.00
(O) Plus for each additional party to the merger in excess
of two5.00
(P) Statement of conversion, when permitted, from one business
entity into another business entity, in addition to the cost of
filing the appropriate articles or certificate to organize the
surviving entity 25.00
(Q) Certificate of withdrawal or cancellation of a
corporation, limited partnership, limited liability partnership,
limited liability company, voluntary association or business trust
25.00
Notwithstanding any other provision of this section to the
contrary, after the thirtieth day of June, two thousand eight, the
fees described in this subdivision that are collected for the
issuance of a certificate relating to the initial registration of
a corporation, limited partnership, domestic limited liability
company or foreign limited liability company shall be deposited in
the general administrative fees account established by this
section.
(3) For receiving, filing and recording a change of the
principal or designated office, change of the agent of process
and/or change of officers, directors, partners, members or
managers, as the case may be, of a corporation, limited
partnership, limited liability partnership, limited liability
company or other business entity as provided by law$15.00
(4) For receiving, filing and preserving a reservation of a
name for each one hundred twenty days or for any other period in
excess of seven days prescribed by law for a corporation, limited
partnership, limited liability partnership or limited liability
company$15.00
(5) For issuing a certificate relating to a corporation or
other business entity, as follows:
(A) Certificate of good standing of a domestic or foreign corporation$10.00
(B) Certificate of existence of a domestic limited liability
company, and certificate of authorization foreign limited liability
company10.00
(C) Certificate of existence of any business entity, trademark
or service mark registered with the Secretary of State 10.00
(D) Certified copy of corporate charter or comparable
organizing documents for other business entities15.00
(E) Plus, for each additional amendment, restatement or other
additional document5.00
(F) Certificate of registration of the name of a foreign
corporation, limited liability company, limited partnership or
limited liability partnership25.00
(G) And for the annual renewal of the name registration
10.00
(H) Any other certificate not specified in this subdivision
10.00
(6) For issuing a certificate other than those relating to
business entities, as provided in this subsection, as follows:
(A) Certificate or apostille relating to the authority of
certain public officers, including the membership of boards and
commissions$10.00
(B) Plus, for each additional certificate pertaining to the
same transaction . . . . . . . . . . . . . . . . . . . . . . 5.00
(C) Any other certificate not specified in this
subdivision10.00
(D) For acceptance, indexing and recordation of service of
process any corporation, limited partnership, limited liability
partnership, limited liability company, voluntary association,
business trust, insurance company, person or other entity as
permitted by law15.00
(E) For shipping and handling expenses for execution of
service of process by certified mail upon any defendant within the
United States, which fee is to be deposited to the special revenue
account established in this section for the operation of the office
of the Secretary of State.5.00
(F) For shipping and handling expenses for execution of
service of process upon any defendant outside the United States by
registered mail, which fee is to be deposited to the special
revenue account established in this section for the operation of
the office of the Secretary of State.15.00
(7) For a search of records of the office conducted by
employees of or at the expense of the Secretary of State upon
request, as follows:
(A) For any search of archival records maintained at sites
other than the office of the Secretary of State
no less than $10.00
(B) For searches of archival records maintained at sites other
than the office of the Secretary of State which require more than
one hour, for each hour or fraction of an hour consumed in making
such search10.00
(C) For any search of records maintained on site for the purpose of obtaining copies of documents or printouts of data
5.00
(D) For any search of records maintained in electronic format
which requires special programming to be performed by the state
information services agency or other vendor
any actual cost, but not less than 25.00
(E) The cost of the search is in addition to the cost of any
copies or printouts prepared or any certificate issued pursuant to
or based on the search.
(F) For recording any paper for which no specific fee is
prescribed5.00
(8) For producing and providing photocopies or printouts of
electronic data of specific records upon request, as follows:
(A) For a copy of any paper or printout of electronic data, if
one sheet$1.00
(B) For each sheet after the first .50
(C) For sending the copies or lists by fax
transmission5.00
(D) For producing and providing photocopies of lists, reports,
guidelines and other documents produced in multiple copies for
general public use, a publication price to be established by the
Secretary of State at a rate approximating 2.00 plus .10 per page
and rounded to the nearest dollar.
(E) For electronic copies of records obtained in data format
on disk, the cost of the record in the least expensive available
printed format, plus, for each required disk, which shall be provided by the Secretary of State5.00
(b) The Secretary of State may propose legislative rules for
promulgation for charges for on-line electronic access to database
information or other information maintained by the Secretary of
State.
(c) For any other work or service not enumerated in this
subsection, the fee prescribed elsewhere in this code or a rule
promulgated under the authority of this code.
(d) The records maintained by the Secretary of State are
prepared and indexed at the expense of the state and those records
shall not be obtained for commercial resale without the written
agreement of the state to a contract including reimbursement to the
state for each instance of resale.
(e) The Secretary of State may provide printed or electronic
information free of charge as he or she considers necessary and
efficient for the purpose of informing the general public or the
news media.
(f) There is hereby continued in the state treasury a special
revenue account to be known as the "service fees and collections"
account. Expenditures from the account shall be used for the
operation of the office of the Secretary of State and are not
authorized from collections, but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code. Notwithstanding any other provision of this code to the contrary, except as provided in subsection (h) of this
section and section two-a of this article, one half of all the fees
and service charges established in the following sections and for
the following purposes shall be deposited by the Secretary of State
or other collecting agency to that special revenue account and used
for the operation of the office of the Secretary of State:
(1) The annual attorney-in-fact fee for corporations and
limited partnerships established in section five, article twelve-c,
chapter eleven of this code;
(2) The fees received for the sale of the state register, code
of state rules and other copies established by rule and authorized
by section seven, article two, chapter twenty-nine-a of this code;
(3) The registration fees, late fees and legal settlements
charged for registration and enforcement of the charitable
organizations and professional solicitations established in
sections five, nine and fifteen-b, article nineteen, chapter
twenty-nine of this code;
(4) The annual attorney-in-fact fee for limited liability
companies as designated in section one hundred eight, article one,
chapter thirty-one-b of this code and established in section two
hundred eleven, article two of said chapter: Provided, That after
the thirtieth day of June, two thousand eight, the annual report
fees designated in section one hundred eight, article one, chapter
thirty-one-b of this code shall upon collection be deposited in the
general administrative fees account described in subsection (h) of
this section;
(5) The filing fees and search and copying fees for uniform
commercial code transactions established by section five hundred
twenty-five, article nine, chapter forty-six of this code;
(6) The annual attorney-in-fact fee for licensed insurers
established in section twelve, article four, chapter thirty-three
of this code;
(7) The fees for the application and record maintenance of all
notaries public established by section one hundred seven, article
one, chapter twenty-nine-c of this code;
(8) The fees for the application and record maintenance of
commissioners for West Virginia as established by section twelve,
article four, chapter twenty-nine of this code;
(9) The fees for registering credit service organizations as
established by section five, article six-c, chapter forty-six-a of
this code;
(10) The fees for registering and renewing a West Virginia
limited liability partnership as established by section one,
article ten, chapter forty-seven-b of this code;
(11) The filing fees for the registration and renewal of
trademarks and service marks established in section seventeen,
article two, chapter forty-seven of this code;
(12) All fees for services, the sale of photocopies and data
maintained at the expense of the Secretary of State as provided in
this section; and
(13) All registration, license and other fees collected by the
Secretary of State not specified in this section.
(g) Any balance in the service fees and collections account
established by this section which exceeds five hundred thousand
dollars as of the thirtieth day of June, two thousand three, and
each year thereafter, shall be expired to the state fund, general
revenue fund.
(h)(1) Effective the first day of July, two thousand eight,
there is hereby created in the state treasury a special revenue
account to be known as the general administrative fees account.
Expenditures from the account shall be used for the operation of
the office of the Secretary of State and are not authorized from
collections, but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code: Provided, That for the fiscal year ending
the thirtieth day of June, two thousand nine, expenditures are
authorized from collections rather than pursuant to an
appropriation by the Legislature. Any balance in the account at
the end of each fiscal year shall not revert to the general revenue
fund but shall remain in the fund and be expended as provided by
this subsection.
(2) After the thirtieth day of June, two thousand eight, all
the fees and service charges established in section two-a of this
article for the following purposes shall be collected and deposited
by the Secretary of State or other collecting agency in the general
administrative fees account and used for the operation of the office of the Secretary of State:
(A) The annual report fees paid to the Secretary of State by
corporations, limited partnerships, domestic limited liability
companies and foreign limited liability companies;
(B) The fees for the issuance of a certificate relating to the
initial registration of a corporation, limited partnership,
domestic limited liability company or foreign limited liability
company described in subdivision (2), subsection (a) of this
section; and
(C) The fees for the purchase of date and updates related to
the State's Business Organizations Database described in section
two-a of this article.
(i) There is continued in the office of the Secretary of State
a non-interest bearing, escrow account to be known as the "prepaid
fees and services account". This account shall be for the purpose
of allowing customers of the Secretary of State to prepay for
services, with payment to be held in escrow until services are
rendered. Payments deposited in the account shall remain in the
account until services are rendered by the Secretary of State and
at that time the fees will be reallocated to the appropriate
general or special revenue accounts. There shall be no fee charged
by the secretary of state to the customer for the use of this
account and the customer may request the return of any moneys
maintained in the account at any time without penalty. The assets
of the prepaid fees and services account do not constitute public
funds of the state and are available solely for carrying out the purposes of this section.
The bill (Eng. H. B. No. 4465), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4465) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 4465) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4465--A Bill to amend and reenact §59-1-2
of the Code of West Virginia, 1931, as amended, relating to
creating a special revenue account; redirecting certain fees into
the account; providing purposes for the expenditure of certain fee
collections; continuing the prepaid fees and services account in
the Secretary of State's office; assets in account not public
funds; and purpose of account.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4513, Relating to the reimbursement of
costs for newborn screenings.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, section three, lines seven and eight, by striking
out the words "No later than the first day of July, two thousand
seven, the" and inserting in lieu thereof the word "The".
The bill (Eng. H. B. No. 4513), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4513) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4513) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4515, Relating to reports by
health care providers of persons incompetent to drive an
automobile.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On page three, section thirteen, lines sixteen through twenty-
four, by striking out all of subsection (b) and inserting in lieu
thereof a new subsection (b), to read as follows:
(b) Reports, recommendations or opinions, findings or advice
received or made by the division for the purpose of determining
whether a person is qualified to be licensed to drive are for the
confidential use of the division and exempt from provisions of
article one, chapter twenty-nine-B of this code and may only be
admitted in proceedings to either suspend, revoke or impose
limitations on the use of a driver's license pursuant to section
six, subsection (a)(5),article three, chapter seventeen-B of this
code or section seven, article three, chapter seventeen-B of this
code, or to reinstate the driver's license.
The bill (Eng. Com. Sub. for H. B. No. 4515), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4515) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4515) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4527, Allowing county
commissions to regulate subdivisions and land development without
adopting a plan.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page two, section one, lines nine and ten, by striking out
all of subdivision (2) and inserting in lieu thereof a new
subdivision (2), to read as follows:
(2) Establishing a planning commission, enacting a subdivision
and land development ordinance, and adopting a comprehensive plan
for the area included in the subdivision and land development
ordinance within three years of the enactment of the subdivision
and land development ordinance.
The bill (Eng. Com. Sub. for H. B. No. 4527), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4527) was then read a third time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 4527 pass?"
On the passage of the bill, the yeas were: Bowman, Chafin,
Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings,
Unger, Wells, Yoder and Tomblin (Mr. President)--21.
The nays were: Barnes, Boley, Caruth, Deem, Facemyer, Guills,
Hall, Love, Sprouse, Sypolt and White--11.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4527) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4527--A Bill to amend and
reenact §8A-4-1 and §8A-4-2 of the Code of West Virginia, 1931, as
amended, all relating to subdivision and land development
ordinances; and providing an option to counties and municipalities
to regulate subdivisions and land development.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4567, Attracting private investment for
the financing, construction and operation of additional lodging
units at Stonewall Jackson Lake State Park.
On second reading, coming up out of regular order, was read a
second time.
Under rule number forty-three of the Rules of the Senate, Senator McCabe was excused from voting on any matter pertaining to
the bill.
The following amendment to the bill, from the Committee on
Natural Resources, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. PARKS AND RECREATION.
§20-5-16. Authority to enter into contracts with third parties to
construct recreational facilities and cabins; public
comment.
(a) Notwithstanding any other provision of this code to the
contrary, in addition to all other powers and authority vested in
the director, he or she is hereby authorized and empowered to:
(1) Enter into contracts with third parties for the financing,
construction and operation of recreational, lodging and ancillary
facilities at Chief Logan State Park, Beech Fork State Park,
Tomlinson Run State Park, Stonewall Jackson Lake State Park, Lost
River State Park and Canaan Valley Resort State Park. The
contracts may allow and recognize both direct and subsidiary
investment arrangements. The term of the contracts may not exceed
a period of twenty-five years, at which time the full title to the
recreational facilities shall vest in the state, except as
otherwise provided in this section;
(2) Enter into contracts with third parties for the
construction, but not the operation, of cabins at any state park or
forest. Upon completion of the construction of the cabins, full title to the cabins shall immediately vest in the state and the
cabins shall be operated by the parks and recreation section;
(3) Authorize the construction of at least five cabins by any
single third party in state parks and state forests which do not
offer such the facilities on the effective date of this subsection;
and
(4) Propose emergency and legislative rules, in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, that set the conditions upon which the director may enter
into a contract with a single third party proposing to construct
cabins.
(b) All contracts shall be presented to the Joint Committee on
Government and Finance for review and comment prior to execution.
(c) A contract may provide for renewal for the purpose of
permitting continued operation of the facilities at the option of
the director for a term or terms not to exceed ten years.
(d) Except as otherwise authorized by this section, no
extension or renewal beyond the original twenty-five year term may
be executed by the director absent the approval of the Joint
Committee on Government and Finance.
(e) Stonewall Jackson Lake State Park. --
(1) With respect to the financing, construction and operation
of lodging at Stonewall Jackson Lake State Park, in addition to the
lodging in existence as of the first day of July, two thousand
eight, contracts entered into pursuant to this section may grant,
convey or provide for commercially reasonable lodging usage and related rights and privileges all on terms and conditions as the
director may deem appropriate, desirable or necessary to attract
private investment for the construction of additional lodging
units.
(2) No contracts may be entered into prior to the preparation
of lodging unit development plans and standard lodging unit
contract documents in a form and at a level of detail acceptable to
the United States Army Corps of Engineers and the director, and
subsequent to the presentation of the lodging unit development
plans and standard lodging unit contract documents to the Joint
Committee on Government and Finance for review and comment.
(3) At a minimum, the lodging unit development plans and
standard lodging unit contracts shall comply with the following
requirements:
(A) That no more than one hundred additional lodging units may
be constructed, in addition to the lodging in existence as of the
first day of July, two thousand eight;
(B) That lodging unit contracts, with respect to any
additional lodging units that may be financed, constructed or
operated pursuant to the provision of this section, shall generally
conform to the contracts entered into by federal agencies or the
National Park Service with private parties regarding privately
financed property that is constructed, developed or operated on
public lands administered by federal agencies or the National Park
Service, subject to modification and adaptation by the director as
the director deems appropriate, suitable and relevant to any lodging units to be constructed at Stonewall Jackson Lake State
Park.
(C) That a party granted rights and privileges under lodging
unit contracts awarded under the provisions of this subsection
shall have the right to renew his, her or its lodging unit contract
for successive terms not to extend beyond the termination date of
the state's lease with the United States Army Corps of Engineers;
or, in the event that the state's lease with the United States Army
Corps of Engineers is extended beyond the termination date of the
lease as of the first day of July, two thousand seven, not to
exceed five ten-year extensions or renewals beyond the termination
date of the lease between the state and the United States Army
Corps of Engineers in effect as of the first day of July, two
thousand seven: Provided, That the party extended the renewal
rights is in compliance with all material rights, duties and
obligations arising under his, her or its contract and all relevant
and applicable provisions of federal, state and local laws, rules,
regulations, contracts or agreements at the time of renewal:
Provided, however, That if and in the event the director makes an
affirmative determination that further renewals beyond the time
periods set forth in this subsection are in the best interest of
the state and Stonewall Jackson Lake State Park, giving due
consideration to financial, operational and other considerations
deemed relevant and material by the director, that the director may
authorize further renewals;
(D) That all rights and privileges arising under a lodging unit contract shall be transferred to the state or the state's
designee upon the expiration or termination of the contract, upon
the terms and conditions as each contract may provide or as may
otherwise be agreed upon between the parties;
(E) That the state is not, and cannot be, obligated for any
costs, expenses, fees or other charges associated with the
development of the additional lodging units under this subsection
or the operation and maintenance of the additional lodging units
over time, including, but not limited to, costs associated with
infrastructure improvements associated with development or
operation of the additional lodging units. In his or her
discretion, the director may engage professionals to assist the
state in connection with its review and oversight of development of
the additional lodging units;
(F) That at any time following the initial term and first
renewal period of any lodging unit contract entered into with a
private party with respect to an additional lodging unit that is
constructed under this section, the state shall have the right and
option, in its sole discretion, to purchase a lodging unit or
lodging units in accordance with the provisions of this subsection
and any and all contracts that may be entered into from time to
time under this section;
(G) That at its sole option and discretion, the state may
elect to purchase a lodging unit from a private party. In that
event, the private party shall be paid the fair value of the
private party's residual rights and privileges under the lodging unit contract, the residual rights and privileges to be valued
generally in accordance with the valuation standards set forth in
the National Park Service's standard contract provisions, or other
relevant federal agency standards applicable to similar or like
contract rights and provisions as may be in existence at the time
of transfer, all as the same may be deemed relevant and appropriate
by the director, and all in the exercise of the director's
reasonable discretion. Nothing in this section is intended or
shall be construed to impose an obligation on the state to
purchase, purchase, buy, buy out or otherwise acquire or pay for
any lodging unit under this section, or to limit the right and
ability of a private party to donate or contribute his, her or its
interest in and to any lodging unit constructed under this section
to the state or any charitable foundation that may be established
and operating from time to time to support the continued operation
and development of Stonewall Jackson Lake State Park;
(H) That the state shall have no obligation whatsoever to
purchase, buy, buy out or otherwise acquire or pay for any lodging
unit that is developed or constructed under this section; and
(I) The director shall have the right to review and approve
the form and content of all contracts that may be entered into
pursuant to this subsection in connection with the development,
operation and maintenance of additional lodging units at Stonewall
Jackson Lake State Park.
The bill (Eng. H. B. No. 4567), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Wells, White and Tomblin (Mr. President)--28.
The nays were: Sypolt, Unger and Yoder--3.
Absent: Bailey and Sharpe--2.
Excused from voting: McCabe--1.
Having been engrossed, the bill (Eng. H. B. No. 4567) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Sypolt and Unger--2.
Absent: Bailey and Sharpe--2.
Excused from voting: McCabe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4567) passed.
The following amendment to the title of the bill, from the
Committee on Natural Resources, was reported by the Clerk and adopted:
Eng. House Bill No. 4567--A Bill to amend and reenact §20-5-16
of the Code of West Virginia, 1931, as amended, relating to
allowing the Director of the Division of Natural Resources to enter
into contracts granting long-term usage and related rights and
privileges to third parties sufficient to attract private
investment for the financing, construction and operation of
additional lodging units at Stonewall Jackson Lake State Park;
establishing requirements and restrictions regarding the
development, operation and maintenance of additional lodging units
and all contracts related to the additional lodging units;
requiring the development of a lodging unit development plan that
is to be presented to the Joint Committee on Government and Finance
prior to development; and protecting the state from any liabilities
or obligations associated with the development of the additional
lodging units.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4617, Allowing
e-notification by using e-certified cards for verification of
certified mail acceptance to the court of origin for service of
process.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §31B-1-111 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §31D-5-504 of said code be
amended and reenacted; that §31D-15-1510 of said code be amended
and reenacted; that §31E-5-504 of said code be amended and
reenacted; that §31E-14-1410 of said code be amended and reenacted;
that §46A-2-137 of said code be amended and reenacted; that §47-9-4
of said code be amended and reenacted; and that §56-3-31 and §56-3-
33 of said code be amended and reenacted, all to read as follows:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 1. GENERAL PROVISIONS.
§31B-1-111. Service of process.
(a) An agent for service of process appointed by a limited
liability company or a foreign limited liability company is an
agent of the company for service of any process, notice or demand
required or permitted by law to be served upon the company.
(b) If a limited liability company or foreign limited
liability company fails to appoint or maintain an agent for service
of process in this state or the agent for service of process cannot
with reasonable diligence be found at the agent's address, the
secretary of state is an agent of the company upon whom process,
notice or demand may be served.
(c) Service of any process, notice or demand on the secretary
of state may be made by delivering to and leaving with the
secretary of state, the assistant secretary of state or clerk having charge of the limited liability company department of the
secretary of state, the original process, notice or demand and two
copies thereof for each defendant, along with the fee required by
section two, article one, chapter fifty-nine of this code. No
process, notice or demand may be served on or accepted by the
secretary of state less than ten days before the return day
thereof. If the process, notice or demand is served on the
secretary of state, the secretary of state shall forward one of the
copies by registered or certified mail, return receipt requested,
to the company at its designated office and shall file in his or
her office a copy of such process, notice or demand, with a note
thereon endorsed of the time of service, or acceptance, as the case
may be. The secretary of state, upon being served with or accepting
any process, notice or demand, shall: (1) File in his or her office
a copy of the process, notice or demand, endorsed as of the time of
service or acceptance; and (2) transmit one copy of the process,
notice or demand by registered or certified mail, return receipt
requested, by a means which may include electronic issuance and
acceptance of electronic return receipts, to the limited liability
company's registered agent: Provided, That if there is no
registered agent, then to the individual whose name and address was
last given to the secretary of state's office as the person
designated to receive process, notice or demand. If no person has
been named, then to the principal office of the limited liability
company at the address last given to the secretary of state's
office and if no address is available on record with the secretary of state then to the address provided on the original process,
notice or demand, if available; and (3) transmit the original
process, notice or demand to the clerk's office of the court from
which the process, notice or demand was issued. Such service or
acceptance of process, notice or demand is sufficient if the return
receipt is signed by an agent or employee of such company, or the
registered or certified mail so sent by the secretary of state is
refused by the addressee and the registered or certified mail is
returned to the secretary of state, showing the stamp of the United
States postal service that delivery thereof has been refused, and
such return receipt or registered or certified mail is received by
the secretary of state by a means which may include electronic
issuance and acceptance of electronic return receipts. appended to
the original process, notice or demand and filed in the clerk's
office of the court from which the process, notice or demand was
issued. After receiving verification from the United States postal
service that acceptance of process, notice or demand has been
signed, the secretary of state shall notify the clerk's office of
the court from which the process, notice or demand was issued by a
means which may include electronic notification. If the process,
notice or demand was refused or undeliverable by the United States
postal service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process, notice or
demand may be served on the secretary of state or accepted by him
or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to
afford each defendant opportunity to defend the action or
proceedings.
(d) The secretary of state shall keep a record of all
processes, notices and demands served pursuant to this section and
record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process,
notice or demand in any manner otherwise provided by law.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31D-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's
agent for service of process, notice or demand required or
permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent
cannot with reasonable diligence be served, the corporation may be
served by registered or certified mail, return receipt requested,
addressed to the secretary of the corporation at its principal
office. Service is perfected under this subsection at the earliest
of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(c) In addition to the methods of service on a corporation
provided in subsections (a) and (b) of this section, the Secretary
of State is hereby constituted the attorney-in-fact for and on
behalf of each corporation created pursuant to the provisions of
this chapter. The Secretary of State has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the Secretary of State as attorney-in-fact
is necessary. Service of any process, notice or demand on the
Secretary of State may be made by delivering to and leaving with
the Secretary of State the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code: Provided, That with regard to a class
action suit in which all defendants are to be served with the same
process, notice or demand, service may be made by filing with the
Secretary of State the original process, notice or demand and one
copy for each named defendant. Immediately after being served with
or accepting any process or notice, the Secretary of State shall:
(1) File in his or her office a copy of the process or notice,
endorsed as of the time of service or acceptance; and (2) transmit
one copy of the process or notice by registered or certified mail,
return receipt requested, by a means which may include electronic
issuance and acceptance of electronic return receipts, to: (A) The
corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to
the Secretary of State's office as the person to whom notice and
process are to be sent and if no person has been named, to the
principal office of the corporation as that address was last given
to the Secretary of State's office. If no address is available on
record with the secretary of state, then to the address provided on
the original process, notice or demand, if available; and (3)
transmit the original process, notice or demand to the clerk's
office of the court from which the process, notice or demand was
issued. Service or acceptance of process or notice is sufficient if
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
Secretary of State is refused by the addressee and the registered
or certified mail is returned to the Secretary of State, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of
electronic return receipts. appended to the original process or
notice and filed in the clerk's office of the court from which the
process or notice was issued. After receiving verification from the
United States postal service that acceptance of process, notice or
demand has been signed, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by a means which may include electronic
notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of
state shall return the refused or undeliverable mail to the clerk's
office of the court from which the process, notice or demand was
issued. No process or notice may be served on the Secretary of
State or accepted by him or her less than ten days before the
return day of the process or notice. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or
necessarily the required means, of serving a corporation.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1510. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized
to transact business in this state is the corporation's agent for
service of process, notice or demand required or permitted by law
to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or
certified mail, return receipt requested, addressed to the
secretary of the foreign corporation at its principal office shown
in its application for a certificate of authority or in its most
recent return required pursuant to section three, article twelve-c,
chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot
with reasonable diligence be served;
(2) Has withdrawn from transacting business in this state
under section one thousand five hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section
one thousand five hundred thirty-one of this article.
(c) Service is perfected under subsection (b) of this section
at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(d) In addition to the methods of service on a foreign
corporation provided in subsections (a) and (b) of this section,
the secretary of state is hereby constituted the attorney-in-fact
for and on behalf of each foreign corporation authorized to do or
transact business in this state pursuant to the provisions of this
chapter. The secretary of state has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
two copies one copy of the process, notice or demand for each
defendant, along with the fee required by section two, article one,
chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the secretary of state
shall: (1) File in his or her office a copy of the process or
notice, endorsed as of the time of service or acceptance; and (2)
transmit one copy of the process or notice by registered or
certified mail, return receipt requested, by a means which may
include electronic issuance and acceptance of electronic return
receipts, to: (A) The foreign corporation's registered agent; or
(B) if there is no registered agent, to the individual whose name
and address was last given to the secretary of state's office as
the person to whom notice and process are to be sent and if no
person has been named, to the principal office of the foreign
corporation as that address was last given to the secretary of
state's office. If no address is available on record with the
secretary of state, then to the address provided on the original
process, notice or demand, if available; and (3) transmit the
original process, notice or demand to the clerk's office of the
court from which the process, notice or demand was issued. Service
or acceptance of process or notice is sufficient if return receipt
is signed by an agent or employee of the corporation, or the
registered or certified mail sent by the secretary of state is
refused by the addressee and the registered or certified mail is
returned to the secretary of state, or to his or her office,
showing the stamp of the United States postal service that delivery
has been refused, and the return receipt or registered or certified
mail is received by the secretary of state by a means which may
include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed in
the clerk's office of the court from which the process or notice
was issued. After receiving verification from United States postal
service that acceptance of process, notice or demand has been
accepted, the secretary of state shall notify the clerk's office of
the court from which the process, notice or demand was issued by
means which may include electronic notification. If the process,
notice or demand was refused or undeliverable by the United States
postal service the secretary of state shall return the refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process or notice may
be served on the secretary of state or accepted by him or her less
than ten days before the return day of the process or notice. The
court may order continuances as may be reasonable to afford each
defendant opportunity to defend the action or proceedings.
(e) Any foreign corporation doing or transacting business in
this state without having been authorized to do so pursuant to the
provisions of this chapter is conclusively presumed to have
appointed the secretary of state as its attorney-in-fact with
authority to accept service of notice and process on behalf of the
corporation and upon whom service of notice and process may be made
in this state for and upon the corporation in any action or
proceeding arising from activities described in section one
thousand five hundred one of this article. No act of a corporation
appointing the secretary of state as its attorney-in-fact is
necessary. Immediately after being served with or accepting any process or notice, of which process or notice two copies one copy
for each defendant are to be furnished to the secretary of state
with the original notice or process, together with the fee required
by section two, article one, chapter fifty-nine of this code, the
secretary of state shall file in his or her office a copy of the
process or notice, with a note endorsed of the time of service or
acceptance, and transmit one copy of the process or notice by
registered or certified mail, return receipt requested, by a means
which may include electronic issuance and acceptance of electronic
return receipts, to the corporation at the address of its principal
office, which address shall be stated in the process or notice.
The service or acceptance of process or notice is sufficient if the
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing thereon the stamp of the United States
postal service that delivery thereof has been refused and the
return receipt or registered or certified mail is received by the
secretary of state by a means which may include electronic issuance
and acceptance of electronic return receipts. appended to the
original process or notice and filed therewith in the clerk's
office of the court from which the process or notice was issued.
After receiving verification from the United States postal service
that acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process or notice may
be served on the secretary of state or accepted by him or her less
than ten days before the return date thereof. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign corporation.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31E-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's
agent for service of process, notice, or demand required or
permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent
cannot with reasonable diligence be served, the corporation may be
served by registered or certified mail, return receipt requested,
addressed to the secretary of the corporation at its principal
office. Service is perfected under this subsection at the earliest
of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(c) In addition to the methods of service on a corporation
provided in subsections (a) and (b) of this section, the secretary
of state is hereby constituted the attorney-in-fact for and on
behalf of each corporation created pursuant to the provisions of
this chapter. The secretary of state has the authority to accept
service of notice and process on behalf of each corporation and is
an agent of the corporation upon whom service of notice and process
may be made in this state for and upon each corporation. No act of
a corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter
fifty-nine of this code. Immediately after being served with or
accepting any process or notice, the secretary of state shall: (1)
File in his or her office a copy of the process or notice, endorsed
as of the time of service, or acceptance; and (2) transmit one copy
of the process or notice by registered or certified mail, return
receipt requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, to: (A) The
corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to
the secretary of state's office as the person to whom notice and
process are to be sent, and if no person has been named, to the
principal office of the corporation as that address was last given
to the secretary of state's office; and if no address is available
on record with the secretary of state, then to the address provided
on the original process, notice or demand, if available; and (3)
transmit the original process, notice or demand to the clerk's
office of the court from which the process, notice or demand was
issued. Service or acceptance of process or notice is sufficient if
return receipt is signed by an agent or employee of the
corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of
electronic return receipts. appended to the original process or
notice and filed in the clerk's office of the court from which the
process or notice was issued. After receiving verification from the
United States postal service that acceptance of process, notice or
demand has been signed, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by a means which may include electronic
notification. If the process, notice or demand was refused or undeliverable by the United States postal service, the secretary of
state shall return the refused or undeliverable mail to the clerk's
office from which the process, notice or demand was issued. No
process or notice may be served on the secretary of state or
accepted by him or her less than ten days before the return day of
the process or notice. The court may order continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
(d) This section does not prescribe the only means, or
necessarily the required means of serving a corporation.
ARTICLE 14. FOREIGN CORPORATIONS.
Part 1. Certificate of Authority.
§31E-14-1410. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized
to conduct activities in this state is the corporation's agent for
service of process, notice, or demand required or permitted by law
to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or
certified mail, return receipt requested, addressed to the
secretary of the foreign corporation at its principal office shown
in its application for a certificate of authority or in its most
recent return required pursuant to section three, article twelve-c,
chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot
with reasonable diligence be served;
(2) Has withdrawn from conducting activities in this state under section one thousand four hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section
one thousand four hundred thirty-one of this article.
(c)Service is perfected under subsection (b) of this section
at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf
of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly
addressed.
(d) In addition to the methods of service on a foreign
corporation provided in subsections (a) and (b) of this section,
the secretary of state is hereby constituted the attorney-in-fact
for and on behalf of each foreign corporation authorized to conduct
affairs in this state pursuant to the provisions of this chapter.
The secretary of state has the authority to accept service of
notice and process on behalf of each corporation and is an agent of
the corporation upon whom service of notice and process may be made
in this state for and upon each corporation. No act of a
corporation appointing the secretary of state as attorney-in-fact
is necessary. Service of any process, notice or demand on the
secretary of state may be made by delivering to and leaving with
the secretary of state the original process, notice or demand and
two copies of the process, notice or demand for each defendant,
along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or
accepting any process or notice, the secretary of state shall: (1)
File in his or her office a copy of the process or notice, endorsed
as of the time of service, or acceptance; and (2) transmit one copy
of the process or notice by registered or certified mail, return
receipt requested, by a means which may include electronic issuance
and acceptance of electronic return receipts, to: (A) The foreign
corporation's registered agent; or (B) if there is no registered
agent, to the individual whose name and address was last given to
the secretary of state's office as the person to whom notice and
process are to be sent, and if no person has been named, to the
principal office of the foreign corporation as that address was
last given to the secretary of state's office. If no address is
available on record with the secretary of state, then to the
address provided on the original process, notice or demand, if
available; and (3) transmit the original process, notice or demand
to the clerk's office of the court from which the process, notice
or demand was issued. Service or acceptance of process or notice is
sufficient if return receipt is signed by an agent or employee of
the corporation, or the registered or certified mail sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state, or to his
or her office, showing the stamp of the United States postal
service that delivery has been refused, and the return receipt or
registered or certified mail is received by the secretary of state
by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or
notice and filed in the clerk's office of the court from which the
process or notice was issued. After receiving verification from
United States postal service that acceptance of process, notice or
demand has been accepted, the secretary of state shall notify the
clerk's office of the court from which the process, notice or
demand was issued by means which may include electronic
notification. If the process, notice or demand was refused or
undeliverable by the United States postal service the secretary of
state shall return the refused or undeliverable mail to the clerk's
office of the court from which the process, notice or demand was
issued. No process or notice may be served on the secretary of
state or accepted by him or her less than ten days before the
return day of the process or notice. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(e) Any foreign corporation conducting affairs in this state
without having been authorized to do so pursuant to the provisions
of this chapter is conclusively presumed to have appointed the
secretary of state as its attorney-in-fact with authority to accept
service of notice and process on behalf of the corporation and upon
whom service of notice and process may be made in this state for
and upon the corporation in any action or proceeding arising from
activities described in section one thousand four hundred one of
this article. No act of a corporation appointing the secretary of
state as its attorney-in-fact is necessary. Immediately after being served with or accepting any process or notice, of which process or
notice two copies for each defendant are to be furnished to the
secretary of state with the original notice or process, together
with the fee required by section two, article one, chapter fifty-
nine of this code, the secretary of state shall file in his or her
office a copy of the process or notice, with a note endorsed of the
time of service or acceptance, and transmit one copy of the process
or notice by registered or certified mail, return receipt
requested, by a means which may include electronic issuance and
acceptance of electronic return receipts, to the corporation at the
address of its principal office, which address shall be stated in
the process or notice. The service or acceptance of process or
notice is sufficient if the return receipt is signed by an agent or
employee of the corporation, or the registered or certified mail
sent by the secretary of state is refused by the addressee and the
registered or certified mail is returned to the secretary of state,
or to his or her office, showing thereon the stamp of the United
States postal service that delivery thereof has been refused, and
the return receipt or registered or certified mail is received by
the secretary of state by a means which may include electronic
issuance and acceptance of electronic return receipts. appended to
the original process or notice and filed therewith in the clerk's
office of the court from which the process or notice was issued.
After receiving verification from the United States postal service
that acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. No process or notice may
be served on the secretary of state or accepted by him or her less
than ten days before the return date thereof. The court may order
continuances as may be reasonable to afford each defendant
opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign corporation.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-137. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation
authorized to do business in this state pursuant to the provisions
of chapter thirty-one of this code, who takes or holds any
negotiable instrument, nonnegotiable instrument, or contract or
other writing, arising from a consumer credit sale or consumer
lease which is subject to the provisions of this article, other
than a sale or lease primarily for an agricultural purpose, or who
is a lender subject to the provisions of section one hundred three
of this article, shall be conclusively presumed to have appointed
the secretary of state as his attorney-in-fact with authority to accept service of notice and process in any action or proceeding
brought against him arising out of such consumer credit sale,
consumer lease or consumer loan. A person shall be considered a
nonresident hereunder if he is a nonresident at the time such
service of notice and process is sought. No act of such person
appointing the secretary of state shall be necessary. Immediately
after being served with or accepting any such process or notice, of
which process or notice two copies for each defendant shall be
furnished the secretary of state with the original notice or
process, together with the fee required by section two, article
one, chapter fifty-nine of this code, the secretary of state shall
file in his office a copy of such process or notice, with a note
thereon endorsed of the time of service or acceptance, as the case
may be, and transmit one copy of such process or notice by
registered or certified mail, return receipt requested, by a means
which may include electronic issuance and acceptance of electronic
return receipts, to such person at his address, which address shall
be stated in such process or notice: Provided, That such return
receipt shall be signed by such person or an agent or employee of
such person if a corporation, or the registered or certified mail
so sent by said secretary of state is refused by the addressee and
the registered or certified mail is returned to said secretary of
state, or to his office, showing thereon the stamp of the U.S.
postal service that delivery thereof has been refused, and such
return receipt or registered or certified mail is appended to the
original process or notice and filed therewith in the clerk's office of the court from which such process or notice was issued.
after receiving verification from the United States postal service
that acceptance of process or notice has been signed, the secretary
of state shall notify the clerk's office of the court from which
the process or notice was issued by a means which may include
electronic notification. If the process or notice was refused or
undeliverable by the United States postal service the secretary of
state shall return refused or undeliverable mail to the clerk's
office of the court from which the process or notice was issued.
But no process or notice shall be served on the secretary of state
or accepted fewer than ten days before the return date thereof. The
court may order such continuances as may be reasonable to afford
each defendant opportunity to defend the action or proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a bar
to the plaintiff in any action from having process or notice in
such action served in any other mode and manner provided by law.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.
§47-9-4. Secretary of state constituted attorney-in-fact for all
limited partnerships; manner of acceptance or service of
notice and process upon secretary of state; what constitutes
conducting affairs or doing or transacting business in this
state for purposes of this section.
The secretary of state is hereby constituted the attorney-in-
fact for and on behalf of every limited partnership created by virtue of the laws of this state and every foreign limited
partnership authorized to conduct affairs or do or transact
business herein pursuant to the provisions of this article, with
authority to accept service of notice and process on behalf of
every such limited partnership and upon whom service of notice and
process may be made in this state for and upon every such limited
partnership. No act of such limited partnership appointing the
secretary of state such attorney-in-fact shall be necessary.
Immediately after being served with or accepting any such process
or notice, of which process or notice two copies for each defendant
shall be furnished the secretary of state with the original notice
or process, together with the fee required by section two, article
one, chapter fifty-nine of this code, the secretary of state shall
file in his office a copy of such process or notice, with a note
thereon endorsed of the time of service or acceptance, as the case
may be, and transmit one copy of such process or notice by
registered or certified mail, return receipt requested, to the
person to whom notice and process shall be sent, whose name and
address were last furnished to the state officer at the time
authorized by statute to accept service of notice and process and
upon whom notice and process may be served; and if no such person
has been named, to the principal office of the limited partnership
at the address last furnished to the state officer at the time
authorized by statute to accept service of process and upon whom
process may be served, as required by law, or if no address is
available on record with the secretary of state then to the address provided on the original process or process, if available. No
process or notice shall be served on the secretary of state or
accepted by him less than ten days before the return day thereof.
Such limited partnership shall pay the annual fee prescribed by
article twelve, chapter eleven of this code for the services of the
secretary of state as its attorney-in-fact.
Any foreign limited partnership which shall conduct affairs or
do or transact business in this state without having been
authorized so to do pursuant to the provisions of this article
shall be conclusively presumed to have appointed the secretary of
state as its attorney-in-fact with authority to accept service of
notice and process on behalf of such limited partnership and upon
whom service of notice and process may be made in this state for
and upon every such limited partnership in any action or proceeding
described in the next following paragraph of this section. No act
of such limited partnership appointing the secretary of state as
such attorney-in-fact shall be necessary. Immediately after being
served with or accepting any such process or notice, of which
process or notice two copies for each defendant shall be furnished
the secretary of state with the original notice or process,
together with the fee required by section two, article one, chapter
fifty-nine of this code, the secretary of state shall file in his
office a copy of such process or notice, with a note thereon
endorsed of the time of service or acceptance, as the case may be,
and transmit one copy of such process or notice by registered or
certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return
receipts, to such limited partnership at the address of its
principal office, which address shall be stated in such process or
notice. Such service or acceptance of such process or notice shall
be sufficient if such return receipt shall be signed by an agent or
employee of such limited partnership., or the registered or
certified mail so sent by the secretary of state is refused by the
addressee and the registered or certified mail is returned to the
secretary of state, or to his office, showing thereon the stamp of
the United States postal service that delivery thereof has been
refused, and such return receipt or registered or certified mail is
appended to the original process or notice and filed therewith in
the clerk's office of the court from which such process or notice
was issued. After receiving verification from the United States
postal service that acceptance of process or notice has been
signed, the secretary of state shall notify the clerk's office of
the court from which the process or notice was issued by a means
which may include electronic notification. If the process or notice
was refused or undeliverable by the United State postal service the
secretary of state shall return refused or undeliverable mail to
the clerk's office of the court from which the process or notice
was issued. No process or notice shall be served on the secretary
of state or accepted by him less than ten days before the return
date thereof. The court may order such continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
For the purpose of this section, a foreign limited partnership
not authorized to conduct affairs or do or transact business in
this state pursuant to the provisions of this article shall
nevertheless be deemed to be conducting affairs or doing or
transacting business herein (a) if such limited partnership makes
a contract to be performed, in whole or in part, by any party
thereto in this state, (b) if such limited partnership commits a
tort, in whole or in part, in this state, or (c)if such limited
partnership manufactures, sells, offers for sale or supplies any
product in a defective condition and such product causes injury to
any person or property within this state notwithstanding the fact
that such limited partnership had no agents, servants or employees
or contacts within this state at the time of said injury. The
making of such contract, the committing of such tort or the
manufacture or sale, offer of sale or supply of such defective
product as herein above described shall be deemed to be the
agreement of such limited partnership that any notice or process
served upon, or accepted by, the secretary of state pursuant to the
next preceding paragraph of this section in any action or
proceeding against such limited partnership arising from or growing
out of such contract, tort or manufacture or sale, offer of sale or
supply of such defective product shall be of the same legal force
and validity as process duly served on such limited partnership in
this state.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-31. Actions by or against nonresident operators of motor
vehicles involved in highway accidents; appointment of
secretary of state, insurance company, as agents; service of
process.
(a) Every nonresident, for the privilege of operating a motor
vehicle on a public street, road or highway of this state, either
personally or through an agent, appoints the secretary of state, or
his or her successor in office, to be his or her agent or attorney-
in-fact upon whom may be served all lawful process in any action or
proceeding against him or her in any court of record in this state
arising out of any accident or collision occurring in the state of
West Virginia in which the nonresident was involved: Provided, That
in the event process against a nonresident defendant cannot be
effected through the secretary of state, as provided by this
section, for the purpose only of service of process, the
nonresident motorist shall be considered to have appointed as his
or her agent or attorney-in-fact any insurance company which has a
contract of automobile or liability insurance with the nonresident
defendant.
(b) For purposes of service of process as provided in this
section, every insurance company shall be considered the agent or
attorney-in-fact of every nonresident motorist insured by that
company if the insured nonresident motorist is involved in any
accident or collision in this state and service of process cannot
be effected upon the nonresident through the office of the
secretary of state. Upon receipt of process as provided in this section, the insurance company may, within thirty days, file an
answer or other pleading or take any action allowed by law on
behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state,
either personally or through an agent, is considered to acknowledge
the appointment of the secretary of state, or, as the case may be,
his or her automobile insurance company, as his or her agent or
attorney-in-fact, or the agent or attorney-in-fact of his or her
administrator, administratrix, executor or executrix in the event
the nonresident dies, and furthermore is considered to agree that
any process against him or her or against his or her administrator,
administratrix, executor or executrix, which is served in the
manner provided in this section, shall be of the same legal force
and validity as though the nonresident or his or her administrator,
administratrix, executor or executrix were personally served with
a summons and complaint within this state.
Any action or proceeding may be instituted, continued or
maintained on behalf of or against the administrator,
administratrix, executor or executrix of any nonresident who dies
during or subsequent to an accident or collision resulting from the
operation of a motor vehicle in this state by the nonresident or
his or her duly authorized agent.
(d) Service of process upon a nonresident defendant shall be
made by leaving the original and two copies of both the summons and
complaint, together with the bond certificate of the clerk, and the
fee required by section two, article one, chapter fifty-nine of this code with the secretary of state, or in his or her office, and
the service shall be sufficient upon the nonresident defendant or,
if a natural person, his or her administrator, administratrix,
executor or executrix: Provided, That notice of service and a copy
of the summons and complaint shall be sent by registered or
certified mail, return receipt requested, by a means which may
include electronic issuance and acceptance of electronic return
receipts, by the secretary of state to the nonresident defendant.
The return receipt signed by the defendant or his or her duly
authorized agent shall be attached to the original summons and
complaint and filed in the office of the clerk of the court from
which process is issued. In the event the registered or certified
mail sent by the secretary of state is refused or unclaimed by the
addressee or if the addressee has moved without any forwarding
address, the registered or certified mail returned to the secretary
of state, or to his or her office, showing on the mail the stamp of
the post office department that delivery has been refused or not
claimed or that the addressee has moved without any forwarding
address, shall be appended to the original summons and complaint
and filed in the clerk's office of the court from which process
issued. After receiving verification from the United States postal
service that acceptance of process, notice or demand has been
signed, the secretary of state shall notify the clerk's office of
the court from which the process, notice or demand was issued by a
means which may include electronic notification. If the process,
notice or demand was refused or undeliverable by the United State postal service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. The court may order any
reasonable continuances to afford the defendant opportunity to
defend the action.
(e) The fee remitted to the secretary of state at the time of
service shall be taxed in the costs of the proceeding. The
secretary of state shall keep a record in his or her office of all
service of process and the day and hour of service of process.
(f) In the event service of process upon a nonresident
defendant cannot be effected through the secretary of state as
provided by this section, service may be made upon the defendant's
insurance company. The plaintiff shall file with the clerk of the
circuit court an affidavit alleging that the defendant is not a
resident of this state; that process directed to the secretary of
state was sent by registered or certified mail, return receipt
requested; that the registered or certified mail was returned to
the office of the secretary of state showing the stamp of the post
office department that delivery was refused or that the notice was
unclaimed or that the defendant addressee moved without any
forwarding address; and that the secretary of state has complied
with the provisions of subsection (d) of this section. Upon receipt
of process the insurance company may, within thirty days, file an
answer or other pleading and take any action allowed by law in the
name of the defendant.
(g) The following words and phrases, when used in this article, for the purpose of this article and unless a different
intent on the part of the Legislature is apparent from the context,
have the following meanings:
(1) "Duly authorized agent" means and includes, among others,
a person who operates a motor vehicle in this state for a
nonresident as defined in this section and chapter, in pursuit of
business, pleasure or otherwise, or who comes into this state and
operates a motor vehicle for, or with the knowledge or acquiescence
of, a nonresident; and includes, among others, a member of the
family of the nonresident or a person who, at the residence, place
of business or post office of the nonresident, usually receives and
acknowledges receipt for mail addressed to the nonresident.
(2) "Motor vehicle" means and includes any self-propelled
vehicle, including a motorcycle, tractor and trailer, not operated
exclusively upon stationary tracks.
(3) "Nonresident" means any person who is not a resident of
this state or a resident who has moved from the state subsequent to
an accident or collision and among others includes a nonresident
firm, partnership, corporation or voluntary association, or a firm,
partnership, corporation or voluntary association that has moved
from the state subsequent to an accident or collision.
(4) "Nonresident plaintiff or plaintiffs" means a nonresident
who institutes an action in a court in this state having
jurisdiction against a nonresident in pursuance of the provisions
of this article.
(5) "Nonresident defendant or defendants" means a nonresident motorist who, either personally or through his or her agent,
operated a motor vehicle on a public street, highway or road in
this state and was involved in an accident or collision which has
given rise to a civil action filed in any court in this state.
(6) "Street", "road" or "highway" means the entire width
between property lines of every way or place of whatever nature
when any part of the street, road or highway is open to the use of
the public, as a matter of right, for purposes of vehicular
traffic.
(7) "Insurance company" means any firm, corporation,
partnership or other organization which issues automobile
insurance.
(h) The provision for service of process in this section is
cumulative and nothing contained in this section shall be construed
as a bar to the plaintiff in any action from having process in the
action served in any other mode and manner provided by law.
§56-3-33. Actions by or against nonresident persons having certain
contracts with this state; authorizing secretary of state to
receive process; bond and fees; service of process;
definitions; retroactive application.
(a) The engaging by a nonresident, or by his or her duly
authorized agent, in any one or more of the acts specified in
subdivisions (1) through (7) of this subsection shall be deemed
equivalent to an appointment by such nonresident of the secretary
of state, or his or her successor in office, to be his or her true
and lawful attorney upon whom may be served all lawful process in any action or proceeding against him or her, in any circuit court
in this state, including an action or proceeding brought by a
nonresident plaintiff or plaintiffs, for a cause of action arising
from or growing out of such act or acts, and the engaging in such
act or acts shall be a signification of such nonresident's
agreement that any such process against him or her, which is served
in the manner hereinafter provided, shall be of the same legal
force and validity as though such nonresident were personally
served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this
state;
(4) Causing tortious injury in this state by an act or
omission outside this state if he or she regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered in this state;
(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods outside
this state when he or she might reasonably have expected such
person to use, consume or be affected by the goods in this state:
Provided, That he or she also regularly does or solicits business,
or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state;
(6) Having an interest in, using or possessing real property
in this state; or
(7) Contracting to insure any person, property or risk located
within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely upon
the provisions of this section, only a cause of action arising from
or growing out of one or more of the acts specified in subdivisions
(1) through (7), subsection (a) of this section may be asserted
against him or her.
(c) Service shall be made by leaving the original and two
copies of both the summons and the complaint, and the fee required
by section two, article one, chapter fifty-nine of this code with
the secretary of state, or in his or her office, and such service
shall be sufficient upon such nonresident: Provided, That notice of
such service and a copy of the summons and complaint shall
forthwith be sent by registered or certified mail, return receipt
requested, by a means which may include electronic issuance and
acceptance of electronic return receipts, by the secretary of state
to the defendant at his or her nonresident address and the
defendant's return receipt signed by himself or herself or his or
her duly authorized agent or the registered or certified mail so
sent by the secretary of state which is refused by the addressee
and which registered or certified mail is returned to the secretary
of state, or to his or her office, showing thereon the stamp of the
post-office department that delivery has been refused, shall be
appended to the original summons and complaint and filed therewith in the clerk's office of the court from which process issued. After
receiving verification from the United States postal service that
acceptance of process, notice or demand has been signed, the
secretary of state shall notify the clerk's office of the court
from which the process, notice or demand was issued by a means
which may include electronic notification. If the process, notice
or demand was refused or undeliverable by the United States postal
service the secretary of state shall return refused or
undeliverable mail to the clerk's office of the court from which
the process, notice or demand was issued. If any defendant served
with summons and complaint fails to appear and defend within thirty
days of service, judgment by default may be rendered against him or
her at any time thereafter. The court may order such continuances
as may be reasonable to afford the defendant opportunity to defend
the action or proceeding.
(d) The fee remitted to the secretary of state at the time of
service shall be taxed in the costs of the action or proceeding.
The secretary of state shall keep a record in his or her office of
all such process and the day and hour of service thereof.
(e) The following words and phrases, when used in this
section, shall for the purpose of this section and unless a
different intent be apparent from the context, have the following
meanings:
(1) "Duly authorized agent" means and includes among others a
person who, at the direction of or with the knowledge or
acquiescence of a nonresident, engages in such act or acts and includes among others a member of the family of such nonresident or
a person who, at the residence, place of business or post office of
such nonresident, usually receives and receipts for mail addressed
to such nonresident.
(2) "Nonresident" means any person, other than voluntary
unincorporated associations, who is not a resident of this state or
a resident who has moved from this state subsequent to engaging in
such act or acts, and among others includes a nonresident firm,
partnership or corporation or a firm, partnership or corporation
which has moved from this state subsequent to any of said such act
or acts.
(3) "Nonresident plaintiff or plaintiffs" means a nonresident
of this state who institutes an action or proceeding in a circuit
court in this state having jurisdiction against a nonresident of
this state pursuant to the provisions of this section.
(f) The provision for service of process herein is cumulative
and nothing herein contained shall be construed as a bar to the
plaintiff in any action or proceeding from having process in such
action served in any other mode or manner provided by the law of
this state or by the law of the place in which the service is made
for service in that place in an action in any of its courts of
general jurisdiction.
(g) This section shall not be retroactive and the provisions
hereof shall not be available to a plaintiff in a cause of action
arising from or growing out of any of said acts occurring prior to
the effective date of this section.
The bill (Eng. Com. Sub. for H. B. No. 4617), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4617) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4617) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4617--A Bill to amend and
reenact §31B-1-111 of the Code of West Virginia, 1931, as amended;
to amend and reenact §31D-5-504 of said code; to amend and reenact
§31D-15-1510 of said code; to amend and reenact §31E-5-504 of said
code; to amend and reenact §31E-14-1410 of said code; to amend and
reenact §46A-2-137 of said code; to amend and reenact §47-9-4 of
said code; and to amend and reenact §56-3-31 and §56-3-33 of said
code, all relating to service of process; service on corporation
for-profit; service on corporation non-profit; service on foreign
corporation; service of process on certain nonresidents;
constituting the secretary of state as attorney-in-fact for all
limited partnerships; service of process against non residents
involved in motor vehicle accidents; service of process against
nonresidents having certain contracts with this state.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4617) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4619, Collaborative Family
Law Proceedings.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §48-5A-101 and §48-5A-
102, all to read as follows:
ARTICLE 5A. COLLABORATIVE FAMILY LAW PROCEEDINGS.
§48-5A-101. Legislative findings.
The Legislature finds that parties to family law actions often
have particular needs and interests that may not be addressed
through traditional litigation. The Legislature also finds that in
the area of family law there may be an alternative approach to
dispute resolution which targets settlement from the outset and
which employs cooperative negotiation and problem solving that
encourages compromise and direct communication among the parties.
§48-5A-102. Collaborative law generally; requesting the Supreme
Court to study collaborative law procedures for possible
implementation in this state.
(a) Collaborative law is a procedure in which parties who are
involved in family law matters and the involved attorneys agree in
writing to use their best efforts and make a good-faith attempt to
resolve their disputes arising from family law matters on an agreed
basis without resorting to judicial intervention, except to have a
court approve the settlement agreement, make the legal
pronouncements and sign the orders required by law to effectuate
the agreement of the parties as the court determines appropriate.
(b) Several states have passed laws adopting collaborative law
procedures. The Legislature requests that the Supreme Court of
Appeals study the use of collaborative law procedures in the family
courts of this state and, should the Court find that the procedures
would be an effective alternative approach to dispute resolution in
family law matters, promulgate rules for the implementation of the
collaborative law procedures. The Legislature further requests
that the Supreme Court of Appeals present its findings and any
rules promulgated to the Legislature at the regular session of the
Legislature, 2009.
The bill (Eng. Com. Sub. for H. B. No. 4619), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4619) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4619) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4619--A Bill to amend the
Code of West Virginia, 1931, as amended by adding thereto a new
article, designated §48-5A-101 and §48-5A-102, all relating to
requesting the Supreme Court of Appeals to study collaborative law
procedures and to present its finding to the Legislature; and
providing legislative findings.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4619) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4637, Relating to the
deployment of broadband to the remaining unserved areas of the
state.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §31-15C-1, §31-15C-2,
§31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8,
§31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C-13 and §31-15C-14, all to read as follows:
ARTICLE 15C. Broadband Deployment.
§31-15C-1. Legislative findings and purpose.
The Legislature finds as follows:
(1) That it is a primary goal of the Governor, the Legislature
and the citizens of this state, by the year two thousand ten, to
make every municipality, community, and rural area in this state,
border to border, accessible to internet communications through the
expansion, extension and general availability of broadband services
and technology.
(2) That although market-driven deployment has extended
broadband access to most of West Virginia's cities, towns, and
other concentrated population areas, some areas of the state,
mostly rural, remain unserved.
(3) That based upon the same network principles that providers
of telephony services have faced since the inception of the
telecommunications industry, rising fixed costs and technological
limitations prohibit broadband networks from being extended into
rural areas where the level of demand in sparsely populated areas
may not justify the required costs of construction.
(4) That the unique topography and demography of this state
that hinders the provision of broadband access to rural areas of
the state specifically disadvantages the elderly and low-income
households that are the least likely to own computers or subscribe
to internet service. In light of these topographical and
demographic challenges, any attempt to fill the gaps in West Virginia's broadband availability must be organized according to
the levels of demand in the various unserved areas to which service
is sought to be extended.
(5) That, in particular, fair and equitable access to twenty-
first century technology that will maximize the functionality of
educational resources and educational facilities that are conducive
to enabling our children to be exposed to and to receive the best
of future teaching and learning is absolutely essential to this
state. A quality educational system of the twenty-first century
should have access to the best technology tools and processes.
Administrators should have, among other things, the electronic
resources to monitor student performance, to manage data, and to
communicate effectively. In the classroom, every teacher in every
school should be provided with online access to educational
technology resources and the ability to deliver content standard
and objectives to the students of West Virginia. Schools of the
twenty-first century require facilities that accommodate changing
technologies and twenty-first century instructional processes.
(6) Accordingly, it is the purpose of the Legislature to
provide for the development of plans, processes and procedures to
be employed and dedicated to extending broadband access to West
Virginians, and to their families, by stimulating demand for those
services and for encouraging and facilitating the construction of
the necessary infrastructure to meet their needs and demands.
(7) In implementing this initiative, progress by market forces
and industry is to be respected, and the Legislature intends that governmental assistance and funding is to be used only in those
areas without broadband service and not to duplicate or displace
broadband service in areas already served or where industry
feasibly can be expected to offer services in the reasonably
foreseeable future.
§31-15C-2. Definitions.
(a) For the purposes of this article,
(1) "Broadband" or "broadband service" means any service
providing advanced telecommunications capability with either a
downstream data rate or upstream data rate of at least 200 kilobits
per second, that does not require the end-user to dial up a
connection that has the capacity to always be on, and for which the
transmission speeds are based on regular available bandwidth rates,
not sporadic or burstable rates, with a minimum downstream-to-
upstream data ratio of 10:1 for services with a downstream data
rate of up to five megabits per second, and with a minimum upstream
data rate of 500 kilobits per second for services with a downstream
data rate of five megabits per second or greater.
(2) "Broadband deployment project" means either (A) a project
to provide broadband services to a type 2 and/or type 3 unserved
area, as defined in section six of this article; or (B) a project
to undertake activities to promote demand for broadband services
and broadband applications.
(3) "Downstream data rate" means the transmission speed from
the service provider source to the end-user.
(4) "Upstream data rate" means the transmission speed from the end-user to the service provider source.
(5) "Unserved area" means a community that has no access to
broadband service.
(b) The definition of the term "broadband," the designation of
areas that are "unserved", and the level of service required to
qualify for funding of state programs and projects, are based on
the Federal Communications Commission's current definition of
broadband, which is stated in terms of the number of Kilobits
(Kbps) per second, either upstream or downstream. It is the
intention of the Legislature that the definition of broadband in
this article and the level of service requirements for state
funding be promptly updated by future Legislatures to conform with
any revisions enacted by Congress or any rule or regulation
promulgated by the Federal Communications Commission or other
federal agencies involved with deploying and enhancing broadband
services.
§31-15C-3. Broadband Deployment Council established; members of
council; administrative support.
(a) The Broadband Deployment Council is hereby established.
The council is a governmental instrumentality of the state. The
exercise by the council of the powers conferred by this article and
the carrying out of its purpose and duties shall be considered and
held to be, and are hereby determined to be, essential governmental
functions and for a public purpose. The council is created under
the Department of Commerce for administrative, personnel and
technical support services only.
(b) The council shall consist of eleven voting members,
designated as follows:
(1) The Governor or his or her designee;
(2) The Secretary of Commerce or his or her designee;
(3) The Secretary of Administration or his or her designee;
(4) The Director of Homeland Security and Emergency Management
or his or her designee; and
(5) Seven public members that serve at the will and pleasure
of the Governor and are appointed by the Governor with the advice
and consent of the Senate, as follows:
(i) One member representing employees of communications and
cable providers, who shall be a member or representative of a union
representing communications workers;
(ii) One member representing telecommunications providers who
provide broadband services in this state;
(iii) One member representing cable operators who provide
broadband services in this state;
(iv) One member representing broadband equipment or device
manufacturers;
(v) One member representing higher education or secondary
education; and
(vi) Two members representing the general public who are
residents of the state: Provided, That one member represent rural
communities: Provided, however, That both members may not reside in
the same congressional district.
(6) In addition to the eleven voting members of the council, the President of the Senate shall name two senators from the West
Virginia Senate and the Speaker of the House shall name two
delegates from the West Virginia House of Delegates, each to serve
in the capacity of an ex officio, non-voting advisory member of the
council.
(c) The Secretary of Commerce or his or her designee shall
chair the council and appoint one of the other council members to
serve as vice chair. In the absence of the Secretary of Commerce or
his or her designee, the vice chair shall serve as chair. The
council shall appoint a secretary-treasurer who need not be a
member of the council and who, among other tasks or functions
designated by the council, shall keep records of its proceedings.
(d) The council may appoint committees or subcommittees to
investigate and make recommendations to the full council. Members
of these committees or subcommittees need not be members of the
council.
(e) Six voting members of the council shall constitute a
quorum and the affirmative vote of at least the majority of those
members present shall be necessary for any action taken by vote of
the council.
(f) The council is part-time. Public members appointed by the
Governor may pursue and engage in another business or occupation or
gainful employment. Any person employed by, owning an interest in,
or otherwise associated with a broadband deployment project,
project sponsor or project participant may serve as a council
member and shall not be disqualified from serving as a council member because of a conflict of interest prohibited under section
five, article two, chapter six-b of this code and shall not be
subject to prosecution for violation of said section when the
violation is created solely as a result of his or her relationship
with the broadband deployment project, project sponsor or project
participant: Provided, That the member recuses himself or herself
from board participation regarding the conflicting issue in the
manner set forth in legislative rules promulgated by the West
Virginia Ethics Commission.
(g) No member of the council who serves by virtue of his or
her office shall receive any compensation or reimbursement of
expenses for serving as a member. The public members and members of
any committees or subcommittees are entitled to be reimbursed for
actual and necessary expenses incurred for each day or portion
thereof engaged in the discharge of his or her official duties in
a manner consistent with the guidelines of the Travel Management
Office of the Department of Administration.
§31-15C-4. Powers and duties of the council generally.
(a) In addition to the powers set forth elsewhere in this
article, the council is hereby granted, has and may exercise all
powers necessary or appropriate to carry out and effectuate the
purpose and intent of this article. The council shall have the
power and capacity to:
(1) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement,
construction or development of any broadband deployment project;
(2) To make and execute contracts, commitments and other
agreements necessary or convenient for the exercise of its powers,
including but not limited to the hiring of consultants to assist in
the mapping of the state, categorization of areas within the state,
and evaluation of project applications: Provided, That the
provisions of article three, chapter five-a of this code do not
apply to the agreements and contracts executed under the provisions
of this article;
(3) Acquire by gift or purchase, hold or dispose of real
property and personal property in the exercise of its powers and
performance of its duties as set forth in this article;
(4) Receive and dispense funds appropriated for its use by the
Legislature or other funding sources or solicit, apply for and
receive any funds, property or services from any person,
governmental agency or organization to carry out its statutory
duties; and
(5) Perform any and all other activities in furtherance of its
purpose.
(b) The council shall exercise its powers and authority to
bring broadband service to unserved areas. The council may not
duplicate or displace broadband service in areas already served or
where private industry feasibly can be expected to offer services
in the reasonably foreseeable future.
§31-15C-5. Creation of the Broadband Deployment Fund.
All moneys collected by the council, which may, in addition to
appropriations, include gifts, bequests or donations, shall be deposited in a special revenue account in the State Treasury known
as the Broadband Deployment Fund. The fund shall be administered by
and under the control of the council. Expenditures from the fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article two, chapter eleven-b of this code: Provided,
That for the fiscal year ending the thirtieth day of June, two
thousand nine, expenditures are authorized from collections rather
than pursuant to appropriations by the Legislature.
§31-15C-6. Categorization of areas within state for broadband
deployment purposes.
Based on its analysis of mapping, broadband demand, and other
relevant data, the council shall designate unserved areas of the
state as being one of three distinct types. These types are as
follows:
(1) Type 1 unserved area: an area in which broadband may be
deployed by service providers in an economically feasible manner;
2) Type 2 unserved area: an unserved area in which broadband
may be deployed by broadband service providers and other entities
in an economically feasible manner, provided some form of public
moneys is made available; and
(3) Type 3 unserved area: an unserved area in which, at
present, cable or wireline broadband cannot be deployed in an
economically feasible manner and an intermodal approach employing
other technologies, such as satellite and wireless, is required to provide that area with high-speed internet access.
§31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task
of categorizing the areas of the state and evaluating and
prioritizing projects, the council may retain an outside expert
consultant or consultants qualified to map the state on the basis
of broadband availability, to evaluate, categorize and prioritize
projects, to assist in public outreach and education in order to
stimulate demand, to advise the council on the granting or denying
of funding to projects, and to provide other support and assistance
as necessary to accomplish the purposes of this article. The
provisions of article three, chapter five-a of this code, shall not
apply to the retention of an outside expert consultant pursuant to
this section; Provided, that the council shall select the expert or
experts by a competitive selection process.
§31-15C-8. Stimulation of demand through public outreach and
education.
In order to implement and carry out the intent of this
article, the council may take such actions as it deems necessary or
advisable in order to stimulate demand through public outreach and
education in unserved areas. The council shall consider the views,
if offered, of affected members of the public, including private
industry.
§31-15C-9. Development of guidelines and application for funding
assistance; emergency rule-making authority.
(a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall
promulgate emergency rules pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code to
develop comprehensive, uniform guidelines for use by the council in
evaluating any request by a project sponsor for funding assistance
to plan, acquire, construct, improve or otherwise develop a
broadband deployment project in a type 2 or type 3 unserved area.
The guidelines shall include the following factors: (1) The cost-
effectiveness of the project; (2) the economic development benefits
of the project; (3) the availability of alternative sources of
funding that could help finance the project, including, but not
limited to, private grants or federal funding and the efforts
undertaken to obtain such funding; (4) if the project requires the
construction of a network, the applicant's ability to operate and
maintain such network; (5) the degree to which the project advances
statewide broadband access and other state broadband planning
goals; (6) the proposed technologies, bandwidths, upstream data
rates and downstream data rates; (7) the estimated date the project
would commence and be completed; (8) how the proposed project
compares to alternative proposals for the same unserved area with
regard to the number of people served, the amount of financial
assistance sought, and the long-term viability of the proposed
project; and (9) any other consideration the council deems
pertinent.
b) Under no circumstances may the council's guidelines allow
for the approval of any project for broadband service that does not include a minimum downstream transmission rate of 600 kilobits per
second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1
for services with a downstream rate of up to five megabits per
second (Mbps). In those cases where a project's broadband service's
downstream rate is five Mbps or greater, the council's guidelines
must require a minimum upstream data rate of 588 Kbps and allow
information applications and market demands to dictate acceptable
downstream-to-upstream data ratios.
c) The council shall create an application form that shall be
used by all project sponsors requesting funding assistance from the
council to plan, acquire, construct, improve or otherwise develop
broadband deployment projects in type 2 or type 3 unserved areas.
The application form shall contain all information required by all
state agencies that will be required to issue permits and
certificates regarding the project. The application shall require
the project sponsor to set forth the proposed location of the
project; the type(s) of unserved area(s) the project proposes to
address, the estimated total cost of the project; the amount of
funding assistance required and the specific uses of the funding;
other sources of funding available or potentially available for the
project; information demonstrating the need for the project; that
the proposed funding of the project is the most economically
feasible and viable alternative to completing the project; and such
other information as the council considers necessary.
§31-15C-10. Requirements for project funding assistance; review of
project application by council; competitive applications.
(a) Once the council has categorized unserved areas pursuant
to section six of this article, project sponsors may submit
applications for funding assistance for projects in those unserved
areas. Upon receiving its first completed application for a
categorized unserved area, the council shall post notice of such
application with the Secretary of State for sixty days so as to
allow for competing applications to be submitted to the council.
Within thirty days of the close of the aforementioned sixty-day
notice period, the council shall review all applications timely
received during the sixty-day period and either (i) approve funding
for one or more projects after determining that the funding would
constitute an appropriate investment of public funds, or (ii) if
the council determines that the application does not contain all of
the required information or otherwise is incomplete, or that a
proposed project is not eligible for funding assistance, or that
the proposed project is otherwise not an appropriate or prudent
investment of state funds, the council shall deny the project
funding request. Prior to approving or denying any funding request,
the council may seek the advice of any expert consultant retained
pursuant to section seven of this article, but the council is not
bound by that advice. The council shall also consider the views, if
offered, of affected members of the public, including private
industry.
(b) To apply for or receive any funding assistance for a
broadband deployment project from the council pursuant to
subsection (a) of this section, the project sponsor seeking the funding assistance shall submit a completed application to the
council on the form prepared for such purpose by the council
pursuant to section nine of this article.
(c) In reviewing each application, the council may use the
engineering, financial and technical expertise of outside
consultants in addition to the respective staffs of the government
agencies and private-sector entities represented on the council or
other government agencies.
(d) Notwithstanding any provision of article fifteen-a,
chapter thirty-one or any other provision of this code, broadband
deployment project proposals submitted to the council for its
consideration pursuant to this article and the council's decisions
with regard to such projects shall not be subject to review by the
West Virginia Infrastructure and Jobs Development Council.
§31-15C-11. Required reporting by state entities.
(a) The secretary of administration shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the existing broadband infrastructure
owned, leased, used, or operated by the state; broadband
infrastructure purchased by the state; the demand for the
infrastructure in the state; and whether or not that infrastructure
is available to the public. If significant changes to any of the
information submitted to the council occur, the secretary of
administration shall submit a written update the council within
sixty days of the change or in the next report, whichever date is
sooner.
(b) The secretary of administration shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the state portal, any state services or
programs that are available to the public on the state portal; the
amount of usage of the portal; and efforts to create demand for the
portal. If significant changes to any of the information submitted
to the council occur, the secretary of administration shall submit
a written update the council within sixty days of the change or in
the next report, whichever date is sooner.
(c) The chancellor of the higher education policy commission
shall submit a written report to the council by the thirty-first
day of October of each year describing in detail the existing
broadband infrastructure owned, leased, used, operated, or
purchased by all public baccalaureate and graduate institutions in
the state; all programs or initiatives designed to increase the
usage of broadband and broadband based educational applications in
the public baccalaureate and graduate institutions; and all
training provided to instructors in the use of broadband and
broadband based educational applications, If significant changes to
any of the information submitted to the council occur, the
chancellor of the higher education policy commission shall submit
a written update to the council within sixty days of the change or
in the next report, whichever date is sooner.
(d) The chancellor of the West Virginia Council for Community
and Technical College Education shall submit a written report to
the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned,
leased, used, operated, or purchased by all public baccalaureate
and graduate institutions in the state; all programs or initiatives
designed to increase the usage of broadband and broadband based
educational applications in the public baccalaureate and graduate
institutions; and all training provided to instructors in the use
of broadband and broadband based educational applications, If
significant changes to any of the information submitted to the
council occur, the chancellor of the West Virginia council for
community and technical college education shall submit a written
update the council within sixty days of the change or in the next
report, whichever date is sooner.
(e) The state superintendent of schools shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the existing broadband infrastructure
owned, leased, used, operated, or purchased by all state schools;
all programs or initiatives designed to increase the usage of
broadband and broadband based educational applications in the
schools and in Pre-K and early childhood education programs; all
training provided to teachers in the use of broadband and broadband
based educational applications; the availability of an access to
broadband in homes and families with children aged four years to
eight years; estimates of the number of families with children aged
four years to eight years who are using broadband in the homes;
estimates of the ownership of computers in families with children
aged four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any of
the information submitted to the council occur, the state
superintendent of schools shall submit a written update to the
council within sixty days of the change or in the next report,
whichever date is sooner.
(f) The chair of the West Virginia healthcare authority shall
submit a written report to the council by The thirty-first day of
October of each year describing in detail the existing broadband
infrastructure owned, leased, used operated, or purchased by all
hospitals, medical facilities, clinics, or healthcare providers;
all programs, initiatives, or applications utilizing broadband that
are promoted by hospitals, medical facilities, clinics, or
healthcare providers; and any unmet demand for broadband by
hospitals, medical facilities, clinics, or healthcare providers.
§31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition
liability based on membership or participation in the council,
which provides an essential governmental function and enjoys state
action immunity.
§31-15C-13. Protection of proprietary business information.
(a) Broadband deployment information provided to the council
or its consultants and other agents, including but not limited to
physical plant locations, subscriber levels, and market penetration
data, constitutes proprietary business information and, along with
any other information that constitutes trade secrets, shall be
exempt from disclosure under the provisions of chapter twenty-nine-b of this code: Provided, That the information is identified as
confidential information when submitted to the council.
(b) Trade secrets or proprietary business information obtained
by the council from broadband providers and other persons or
entities shall be secured and safeguarded by the state. Such
information or data shall not be disclosed to the public or to any
firm, individual or agency other than officials or authorized
employees of the state. Any person who makes any unauthorized
disclosure of such confidential information or data is guilty of a
misdemeanor and, upon conviction thereof, may be fined not more
than five thousand dollars or confined in a correctional facility
for not more than one year, or both.
(c) The official charged with securing and safeguarding trade
secrets and proprietary data for the council is the Secretary of
Administration, who is authorized to establish and administer
appropriate security measures. The council chair shall designate
two additional persons to share the responsibility of securing
trade secrets or proprietary information. No person will be allowed
access to trade secrets or proprietary information without written
approval of a minimum of two of the three authorized persons
specified above.
§31-15C-14. Expiration of council.
The council shall continue to exist until the thirty-first day
of December, two thousand eleven, unless sooner terminated,
continued or reestablished pursuant to an Act of the Legislature.
On motion of Senator Unger, the following amendments to the Transportation and Infrastructure committee amendment to the bill
(Eng. Com. Sub. for H. B. No. 4637), were reported by the Clerk,
considered simultaneously, and adopted:
On page six, section three, subsection (c), by striking out
the words "The Secretary of Commerce" and inserting in lieu thereof
the words "The Governor";
And,
On page seven, section three, subsection (c), by striking out
the words "of the Secretary of Commerce" and inserting in lieu
thereof the words "of the Governor".
The question now being on the adoption of the Transportation
and Infrastructure committee amendment to the bill, as amended, the
same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4637), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4637) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4637) passed.
The following amendment to the title of the bill, from the
Committee on Transportation and Infrastructure, was reported by the
Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4637--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4,
§31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8, §31-15C-9, §31-15C-10,
§31-15C-11, §31-15C-12 and §31-15C-13, all relating to the
deployment of broadband to the remaining unserved areas of the
state; setting forth legislative findings and purpose; providing
definitions; establishing the Broadband Deployment Council;
establishing procedures for the council, and providing for
administrative support; prescribing the powers, duties and responsibilities of the council generally; creating the Broadband
Development Fund; categorizing areas of the state according to
broadband access; authorizing the retention of an outside expert
consultant or consultants to assist in categorization and other
functions; providing for the stimulation of demand through public
outreach and education; providing funding guidelines; granting
emergency rulemaking authority; establishing project requirements
for funding assistance; describing the procedures for submitting
applications and reviewing applications; requiring public notice;
requiring the submission of written reports by certain state
agencies or officers; placing limits on liability for membership or
participation in the council; protecting confidentiality of trade
secrets and proprietary business information; creating the
misdemeanor offense of making any unauthorized disclosure of
confidential information and establishing the penalties therefor;
and providing for the expiration of the council.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2967, Creating the "West
Virginia Remembers Program".
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4018, Renewing the West
Virginia Small Business Linked Deposit Program.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4038, Allowing the Division of Labor to
promulgate Rules to license elevator workers.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Barnes, the following amendment to the
bill was reported by the Clerk:
On page fifteen by creating a new section fourteen that reads
as follows: "Notwithstanding any other part of this code, all
issues relating to elevator safety shall be under the jurisdiction
of the West Virginia State Fire Marshal's Office and not the West
Virginia Division of Labor".
The question being on the adoption of the amendment offered by
Senator Barnes to the bill, the same was put and did not prevail.
The bill (Eng. H. B. No. 4038) was then ordered to third
reading.
Eng. Com. Sub. for House Bill No. 4041, Relating to the
regulation and treatment of the production of natural gas and
coalbed methane.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4088, Allowing farm
equipment dealers to calculate their inventory based on an average
of their yearly sales.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4092, Changing the requirements for licensure as a forester or forestry technician and
giving the Board of Foresters rule-making authority.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4290, Relating to electronic
commerce.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4357, Extending the
Neighborhood Investment Program Act and eligibility for tax credits
under the act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4407, Requiring automatic
tire chains as standard equipment on all new school buses.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4472, Requiring a board of
education to wait ten days before posting a new job opening
following the death of an employee.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4474, Relating to registered
nurses required in operating rooms.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4477, Relating to payment of GED exam
fees.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4495, Limiting the use of
the titles "registered nurse", "nurse practitioner", and "nurse" to
certain qualified individuals.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4524, Relating generally to
the ethical standards of public officers, employees and lobbyists.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4554, Testing school bus
operators every other year.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4670, Authorizing the Public Employees
Insurance Agency to charge interest to employers on amounts not
paid on time.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4684, Amending the West Virginia Film
Industry Investment Act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
The end of today's second reading calendar having been
reached, the Senate returned to the consideration of
Eng. House Bill No. 3201, Authorizing the tax commissioner to
refuse, revoke, suspend or refuse to renew a business registration
certificate for a business that is the alter ego, nominee or
instrumentality of a business in certain situations.
On third reading, coming up in deferred order, was again
reported by the Clerk.
At the request of Senator Kessler, unanimous consent was
granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following
amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §11-10-5z and
§11-10-7d; that §11-12-5 of said code be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §11-15-9j; that §11-15-16 of said code be amended and
reenacted; and that §11-21-74 of said code be amended and
reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5z. Electronic filing for certain persons.
(a) For tax years beginning on or after the first day of
January, two thousand nine, any person required to file a return
for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater
than one hundred thousand dollars during the immediately preceding
taxable year shall file electronically all returns for all taxes
administered under this article.
(b) The Tax Commissioner shall implement the provisions of
this section using any combination of notices, forms, instructions
and rules that he or she determines necessary. All rules shall be
promulgated pursuant to article three, chapter twenty-nine-a of
this code.
§11-10-7d. Combining assessments.
(a) The Tax Commissioner may, subsequent to any investigation
authorized by subsection (a), section seven of this article that
results in an assessment in each of two or more taxes administered
pursuant to this article, combine those assessments into a combined
single assessment. In order to complete any investigation, the Tax
Commissioner may review and combine returns for the taxes that are
the subject of the investigation.
(b) If the Tax Commissioner has combined two or more returns
as authorized by subsection (a) of this section, the tax remitted
shall be applied against taxes in the order provided in a rule
promulgated by the Tax Commissioner under the authority of article
three, chapter twenty-nine-a of this code.
(c) If the Tax Commissioner issues a combined single
assessment as authorized in subsection (a) of this section, the
limitations on assessment provided in section fifteen of this
article shall apply separately to each tax liability included in the single assessment.
(d) If the Tax Commissioner issues a single assessment as
authorized in subsection (a) of this section and the assessment
becomes final pursuant to the provisions of section eight of this
article, the Tax Commissioner is authorized to pursue collection of
the tax resulting from the combined assessment as authorized by
this article, including, but not limited to, sections eleven and
thirteen of this article, and to record one lien, pursuant to
section twelve of this article, that includes all unpaid amounts of
all finalized tax liabilities included in that combined assessment.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power
of Tax Commissioner to suspend or cancel certificate;
certificate to be permanent until cessation of
business for which certificates are granted or
revocation, suspension or cancellation by the Tax
Commissioner; penalty for involuntary loss of license
due to failure to pay required fees and taxes
relating to business.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article are for the period of one year beginning the first day of
July and ending the thirtieth day of the following June: Provided,
That beginning on or after the first day of July, one thousand nine
hundred ninety-nine, all business registration certificates issued
under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following
transition rule. If the first year for which a business was issued
a business registration certificate under this article began on the
first day of July of an even-numbered calendar year, then the Tax
Commissioner may issue a renewal certificate to that business for
the period beginning the first day of July, one thousand nine
hundred ninety-nine, and ending the thirtieth day of June, two
thousand, upon receipt of fifteen dollars for each such one-year
certificate. Thereafter, only certificates covering two fiscal
years of this state shall be issued. Notwithstanding any other
provisions of this code to the contrary, any certificate of
registration granted on or after the first day of July, two
thousand ten, shall not be subject to the foregoing requirement
that it be renewed, but shall be permanent until cessation of the
business for which the certificate of registration was granted or
until it is suspended, revoked or cancelled by the Tax
Commissioner. Notwithstanding any provision of this code to the
contrary, on or after the first day of July, two thousand ten,
reference to renewal of the business registration certificate shall
refer to the issuance of a new business registration certificate
pursuant to expiration, cancellation or revocation of a prior
business registration certificate or to reinstatement of a business
registration certificate or to reinstatement of a business
certificate previously suspended by the Tax Commissioner. On or
after the first day of July, two thousand ten, the business
registration certificate shall be issued upon payment of a tax of thirty dollars to the Tax Commissioner for new issuances of the
business registration certificate or for issuances of the business
registration certificate pursuant to expiration, cancellation or
revocation of a prior business registration certificate or for
reinstatement of a business registration certificate previously
suspended by the Tax Commissioner, along with any applicable
delinquent fees, interest, penalties and additions to tax.
(b) Revocation or suspension of certificate. --
(1) The Tax Commissioner may cancel or suspend a business
registration certificate at any time during a registration period
if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the Tax
Commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the Tax
Commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by
article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the
vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent
personal property taxes owing for the calendar year. immediately
preceding the calendar year in which the application is made.
(2) On or after the first day of July, two thousand ten, a
prospective registrant or a former registrant for which a business
registration certificate has been suspended, cancelled or revoked
pursuant to the provisions of this article may apply for a new
business registration certificate or for reinstatement of a
suspended business registration certificate upon payment of all
outstanding delinquent fees, taxes, interest, additions to tax and
penalties, in addition to payment to the Tax Commissioner of a
penalty in the amount of one hundred dollars. The Tax Commissioner
may issue a new business registration certificate or reinstate a
suspended business registration certificate if the prospective or
former registrant has provided security acceptable to and
authorized by the Tax Commissioner, payable to the Tax
Commissioner, sufficient to secure all delinquent fees, taxes,
interest, additions to tax and penalties owed by the prospective registrant. The Tax Commissioner may issue a new business
registration certificate or reinstate a suspended business
registration certificate if the prospective or former registrant
has entered into a payment plan approved by the Tax Commissioner by
which liability for all delinquent fees, taxes, interest, additions
to tax and penalties will be paid in due course and without
significant delay. Failure of any registrant to comply with a
payment plan pursuant to this provision shall be grounds for
immediate suspension or revocation of the registrant's business
registration certificate.
(3) On and after the first day of July, two thousand ten, a
prospective registrant or a former registrant for which a business
registration certificate has been suspended, cancelled or revoked
pursuant to the provisions of any article of this code other than
this article may apply for a new business registration certificate
or for reinstatement of a suspended business registration
certificate, only if the prospective or former registrant has
complied with all applicable statutory and regulatory requirements
for renewal, issuance or reinstatement of the business registration
certificate and upon payment to the Tax Commissioner of a penalty
in the amount of one hundred dollars.
(2) (4) Before Except pursuant to exceptions specified in this
code, before canceling, revoking or suspending any business
registration certificate, the Tax Commissioner shall give written
notice of his or her intent to suspend, revoke or cancel the
business registration certificate of the taxpayer, the reason for the suspension, revocation or cancellation, the effective date of
the cancellation, revocation or suspension and the date, time and
place where the taxpayer may appear and show cause why such
business registration certificate should not be canceled, revoked
or suspended. This written notice shall be served on the taxpayer
in the same manner as a notice of assessment is served under
article ten of this chapter, not less than twenty days prior to the
effective date of the cancellation, revocation or suspension. date
of the show cause informal hearing. The taxpayer may appeal
cancellation, revocation or suspension of its business registration
certificate in the same manner as a notice of assessment is
appealed under article ten-a of this chapter. Provided, That the
The filing of a petition for appeal does not stay the effective
date of the suspension, revocation or cancellation. A stay may be
granted only after a hearing is held on a motion to stay filed by
the registrant upon finding that state revenues will not be
jeopardized by the granting of the stay. The Tax Commissioner may,
in his or her discretion and upon such terms as he or she may
specify, agree to stay the effective date of the cancellation,
revocation or suspension until another date certain.
(3) (5) On or before the first day of July, two thousand five,
the Tax Commissioner shall propose for promulgation legislative
rules establishing ancillary procedures for the Tax Commissioner's
suspension of business registration certificates for failure to pay
delinquent personal property taxes pursuant to paragraph (F),
subdivision (1) of this section. The rules shall at a minimum establish any additional requirements for the provision of notice
deemed necessary by the Tax Commissioner to meet requirements of
law; establish protocols for the communication and verification of
information exchanged between the Tax Commissioner, sheriffs and
others; and establish fees to be assessed against delinquent
taxpayers that shall be deposited into a special fund which is
hereby created and expended for general tax administration by the
Tax Division of the Department of Tax and Revenue and for operation
of the Tax Division. Upon authorization of the Legislature, the
rules shall have the same force and effect as if set forth herein.
No provision of this subdivision may be construed to restrict in
any manner the authority of the Tax Commissioner to suspend such
certificates for failure to pay delinquent personal property taxes
under paragraph (C) or (F), subdivision (1) of this section or
under any other provision of this code prior to the authorization
of the rules.
(c) Refusal to renew. -- The Tax Commissioner may refuse to
issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by
the Tax Commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this chapter,
until the registrant pays in full all the delinquent taxes
including interest and applicable additions to tax and penalties.
In his or her discretion and upon such terms as he or she may
specify specifies, the Tax Commissioner may enter into an
installment payment agreement with the taxpayer in lieu of the complete payment. Failure of the taxpayer to fully comply with the
terms of the installment payment agreement shall render the amount
remaining due thereunder immediately due and payable and the Tax
Commissioner may suspend or cancel the business registration
certificate in the manner provided in this section.
(d) Refusal to renew due to delinquent personal property tax.
-- The Tax Commissioner shall refuse to issue or renew a business
registration certificate when informed in writing, signed by the
county sheriff, that personal property owned by the applicant and
used in conjunction with the business activity of the applicant is
subject to delinquent property taxes. The Tax Commissioner shall
forthwith notify the applicant that the commissioner will not act
upon the application until information is provided evidencing that
the taxes due are either exonerated or paid.
(e) Refusal to issue, revocation, suspension and refusal to
renew business registration certificate of alter ego, nominee or
instrumentality of a business that has previously been the subject
of a lawful refusal to issue, revocation, suspension or refuse to
renew. --
(1) The tax commissioner may refuse to issue a business
registration certificate, or may revoke a business registration
certificate or may suspend a business registration certificate or
may refuse to renew a business registration certificate for any
business determined by the tax commissioner to be an alter ego,
nominee or instrumentality of a business that has previously been
the subject of a lawful refusal to issue a business registration certificate or of a lawful revocation, suspension or refusal to
renew a business registration certificate pursuant to this section,
and for which the business registration certificate has not been
lawfully reinstated or reissued.
(2) For purposes of this section, a business is presumed to be
an alter ego, nominee or instrumentality of another business or
other businesses if:
(A) More than twenty percent of the real assets or more than
twenty percent of the operating assets or more than twenty percent
of the tangible personal property of one business are or have been
transferred to the other business or businesses, or are or have
been used in the operations of the other business or businesses, or
more than twenty percent of the real assets or more than twenty
percent of the operating assets or more than twenty percent of the
tangible personal property of one business are or have been used to
collateralize or secure debts or obligations of the other business
or businesses;
(B) Ownership of the businesses is so configured that the
attribution rules of either Internal Revenue Code section 267 or
Internal Revenue Code section 318 would apply to cause ownership of
the businesses to be attributed to the same person or entity; or
(C) Substantive control of the businesses is held or retained
by the same person, entity or individual, directly or indirectly,
or through attribution under paragraph (B) of this subdivision.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9j. Direct pay permits for health care providers.
Any person having a right or claim to any exemption set forth
in section nine-i of this article shall first pay to the vendor the
tax imposed by this article and then apply to the Tax Commissioner
for a refund or credit or, as provided in section nine-d of this
article and section three-d of article fifteen-a of this chapter,
give to the vendor his or her West Virginia direct pay permit
number.
§11-15-16. Tax return and payment; exception; requiring a combined
return.
(a) Payment of tax. -- Subject to the exceptions set forth in
subsection (b) of this section, the taxes levied by this article
are due and payable in monthly installments, on or before the
twentieth day of the month next succeeding the month in which the
tax accrued, except as otherwise provided in this article.
(b) Combined return required. --
(1) The Tax Commissioner shall, no later than the fifteenth
day of June, two thousand eight, design a return that combines
filing of the taxes levied by this article and article fifteen-a of
this chapter.
(2) Beginning the first day of July, two thousand eight, each
person required to file a return required by this article or
article fifteen-a of this chapter, or both this article and article
fifteen-a of this chapter, shall complete and file the return
required by the Tax Commissioner.
(3) The Tax Commissioner may promulgate rules pursuant to
article three, chapter twenty-nine-a of this code and otherwise use any combination of notices, forms and instructions he or she
determines necessary to implement the use of the form required by
subsection (c) of this section.
(b) (c) Tax return. -- The taxpayer shall, on or before the
twentieth day of each month, make out and mail to the Tax
Commissioner a return for the preceding month, in the form
prescribed by the Tax Commissioner, showing:
(1) The total gross proceeds of the vendor's business for the
preceding month;
(2) The gross proceeds of the vendor's business upon which the
tax is based;
(3) The amount of the tax for which the vendor is liable; and
(4) Any further information necessary in the computation and
collection of the tax which the Tax Commissioner may require,
except as otherwise provided in this article or article fifteen-b
of this chapter.
(c) (d) Remittance to accompany return. -- Except as otherwise
provided in this article or article fifteen-b of this chapter, a
remittance for the amount of the tax shall accompany the return.
(d) (e) Deposit of collected tax. -- Tax collected by the Tax
Commissioner shall be deposited as provided in section thirty of
this article, except that:
(1) Tax collected on sales of gasoline and special fuel shall
be deposited in the state road fund; and
(2) Any sales tax collected by the Alcohol Beverage Control
Commissioner from persons or organizations licensed under authority of article seven, chapter sixty of this code shall be paid into a
revolving fund account in the State Treasury, designated the Drunk
Driving Prevention Fund, to be administered by the commission on
drunk driving prevention, subject to appropriations by the
Legislature.
(e) (f) Return to be signed. -- A return shall be signed by
the taxpayer or the taxpayer's duly authorized agent, when a paper
return is prepared and filed. When the return is filed
electronically, the return shall include the digital mark or
digital signature, as defined in article three, chapter
thirty-nine-a of this code, or the personal identification number
of the taxpayer, or the taxpayer's duly authorized agent, made in
accordance with any procedural rule that may be promulgated by the
Tax Commissioner.
(f) (g) Accelerated payment. --
(1) Taxpayers whose average monthly payment of the taxes
levied by this article and article fifteen-a of this chapter during
the previous calendar year exceeds one hundred thousand dollars,
shall remit the tax attributable to the first fifteen days of June
each year on or before the twentieth day of June: Provided, That
on and after the first day of June, two thousand seven, the
provisions of this subsection that require the accelerated payment
on or before the twentieth day of June of the tax imposed by this
article and article fifteen-a of this chapter are no longer
effective and any such tax due and owing shall be payable in
accordance with subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this
subsection, the taxpayer shall remit an amount equal to the amount
of tax imposed by this article and article fifteen-a of this
chapter on actual taxable sales of tangible personal property and
custom software and sales of taxable services during the first
fifteen days of June or, at the taxpayer's election, the taxpayer
may remit an amount equal to fifty percent of the taxpayer's
liability for tax under this article on taxable sales of tangible
personal property and custom software and sales of taxable services
made during the preceding month of May.
(3) For a business which has not been in existence for a full
calendar year, the total tax due from the business during the prior
calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior
calendar year; and if that amount exceeds one hundred thousand
dollars, the tax attributable to the first fifteen days of June
each year shall be remitted on or before the twentieth day of June
as provided in subdivision (2) of this subsection.
(4) When a taxpayer required to make an advanced payment of
tax under subdivision (1) of this subsection makes out its return
for the month of June, which is due on the twentieth day of July,
the taxpayer may claim as a credit against liability under this
article for tax on taxable transactions during the month of June
the amount of the advanced payment of tax made under subdivision
(1) of this subsection.
ARTICLE 21. PERSONAL INCOME TAX.
Part I. General.
§11-21-74. Filing of employer's withholding return and payment of
withheld taxes; annual reconciliation; e-filing
required for certain tax preparers and employers.
(a) General. -- Every employer required to deduct and withhold
tax under this article shall, for each calendar quarter, on or
before the last day of the month following the close of such the
calendar quarter, file a withholding return as prescribed by the
Tax Commissioner and pay over to the Tax Commissioner the taxes so
required to be deducted and withheld. Where the average quarterly
amount so deducted and withheld by any employer is less than one
hundred fifty dollars and the aggregate for the calendar year can
reasonably be expected to be less than six hundred dollars, the Tax
Commissioner may by regulation permit an employer to file an annual
return and pay over to the Tax Commissioner the taxes deducted and
withheld on or before the last day of the month following the close
of the calendar year. Provided, That the The Tax Commissioner may,
by nonemergency legislative rules promulgated pursuant to article
three, chapter twenty-nine-a of this code, change the minimum
amounts established by this subsection. The Tax Commissioner may,
if he or she believes such action determines necessary for the
protection of the revenues, require any employer to make the return
and pay to him or her the tax deducted and withheld at any time or
from time to time. Notwithstanding the provisions of this
subsection, on or after the first day of January, two thousand
nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax
Commissioner and pay over to the Tax Commissioner the taxes
required to be deducted and withheld, in accordance with the
procedures established by the Internal Revenue Service pursuant to
section 3402 of the Internal Revenue Code.
(b) Monthly returns and payments of withheld tax on and after
the first day of January, two thousand one. -- Notwithstanding the
provisions of subsection (a) of this section, on and after the
first day of January, two thousand one, every employer required to
deduct and withhold tax under this article shall, for each of the
first eleven months of the calendar year, on or before the
twentieth day of the succeeding month and for the last calendar
month of the year, on or before the last day of the succeeding
month, file a withholding return as prescribed by the Tax
Commissioner and pay over to the Tax Commissioner the taxes so
required to be deducted and withheld, if such the withheld taxes
aggregate two hundred fifty dollars or more for the month, except
any employer with respect to whom the Tax Commissioner may have by
regulation provided otherwise in accordance with the provisions of
subsection (a) of this section. Notwithstanding the provisions of
this subsection, on and after the first day of January, two
thousand nine, every employer required to deduct and withhold tax
under this article shall file a withholding return as prescribed by
the Tax Commissioner and pay over to the Tax Commissioner the taxes
required to be deducted and withheld. The due dates for returns
and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal
income tax purposes, in accordance with the procedures established
by the Internal Revenue Service pursuant to Section 3402 of the
Internal Revenue Code.
(c) Annual returns and payments of withheld tax of certain
domestic and household employees. -- Employers of domestic and
household employees whose withholdings of federal income tax are
annually paid and reported by the employer pursuant to the filing
of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ,
1040SS or 1041 may, on or before the thirty-first day of January
next succeeding the end of the calendar year for which withholdings
are deducted and withheld, file an annual withholding return with
the Tax Commissioner and annually remit to the Tax Commissioner
West Virginia personal income taxes deducted and withheld for the
employees. The Tax Commissioner may promulgate legislative or
other rules pursuant to article three, chapter twenty-nine-a of
this code for implementation of this subsection. Notwithstanding
the provisions of this subsection, on or after the first day of
January, two thousand nine, every employer required to deduct and
withhold tax under this article shall file a withholding return as
prescribed by the Tax Commissioner and pay over to the Tax
Commissioner the taxes required to be deducted and withheld. The
due dates for annual returns and payments shall be established by
the Tax Commissioner to match as closely as practicable the due
dates in effect for federal income tax purposes in accordance with
the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.
(d) Deposit in trust for Tax Commissioner. -- Whenever any
employer fails to collect, truthfully account for or pay over the
tax, or to make returns of the tax as required in this section, the
Tax Commissioner may serve a notice requiring the employer to
collect the taxes which become collectible after service of the
notice, to deposit the taxes in a bank approved by the Tax
Commissioner, in a separate account, in trust for and payable to
the Tax Commissioner and to keep the amount of the tax in the
separate account until payment over to the Tax Commissioner. The
notice shall remain in effect until a notice of cancellation is
served by the Tax Commissioner.
(e) Accelerated payment. -- (1) Notwithstanding the provisions
of subsections (a) and (b) of this section, for calendar years
beginning after the thirty-first day of December, one thousand nine
hundred ninety, every employer required to deduct and withhold tax
whose average payment per calendar month for the preceding calendar
year under subsection (b) of this section exceeded one hundred
thousand dollars shall remit the tax attributable to the first
fifteen days of June each year on or before the twenty-third day of
June: Provided, That on and after the first day of June, two
thousand seven, the provisions of this subsection that require the
accelerated payment on or before the twenty-third day of June of
the tax imposed by this article are no longer effective and any
such tax due and owing shall be payable in accordance with
subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this
subsection, the employer shall remit an amount equal to the
withholding tax due under this article on employee compensation
subject to withholding tax payable or paid to employees for the
first fifteen days of June or, at the employer's election, the
employer may remit an amount equal to fifty percent of the
employer's liability for withholding tax under this article on
compensation payable or paid to employees for the preceding month
of May.
(3) For an employer which has not been in business for a full
calendar year, the total amount the employer was required to deduct
and withhold under subsection (b) of this section for the prior
calendar year shall be divided by the number of months, including
fractions of a month, that it was in business during the prior
calendar year and if that amount exceeds one hundred thousand
dollars, the employer shall remit the tax attributable to the first
fifteen days of June each year on or before the twenty-third day of
June, as provided in subdivision (2) of this subsection.
(4) When an employer required to make an advanced payment of
withholding tax under subdivision (1) of this subsection makes out
its return for the month of June, which is due on the twentieth day
of July, that employer may claim as a credit against its liability
under this article for tax on employee compensation paid or payable
for employee services rendered during the month of June the amount
of the advanced payment of tax made under subdivision (1) of this
subsection.
(f) The amendments to this section enacted in the year two
thousand six are effective for tax years beginning on or after the
first day of January, two thousand six.
(g) An annual reconciliation of West Virginia personal income
tax withheld shall be submitted by the employer on or before the
twenty-eighth day of February following the close of the calendar
year, together with Tax Division copies of all withholding tax
statements for that preceding calendar year. The reconciliation
shall be accompanied by a list of the amounts of income withheld
for each employee in such form as the Tax Commissioner prescribes
and shall be filed separately from the employer's monthly or
quarterly return.
(h) Any employer required to file a withholding return for two
hundred fifty or more employees shall file its return using
electronic filing as defined in section fifty-four of this article.
An employer that is required to file electronically but does not do
so is subject to a penalty in the amount of twenty-five dollars per
employee for whom the return was not filed electronically, unless
the employer shows that the failure is due to reasonable cause and
not due to willful neglect.
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3201) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3201) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 3201--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto two new sections,
designated §11-10-5z and §11-10-7d; to amend and reenact §11-12-5
of said code; to amend said code by adding thereto a new section,
designated §11-15-9j; to amend and reenact §11-15-16 of said code;
and to amend and reenact §11-21-74 of said code, all relating to
tax administration efficiency and technical advancements; requiring
electronic filing of tax returns when the taxpayer meets a certain
threshold amount of taxes due; authorizing combined tax
assessments; authorizing promulgation of rules to determine the
application of partial payments of taxes; authorizing the
limitation on assessments to apply separately to each tax in a
combined assessment; authorizing the recordation of one lien for
all taxes in a combined assessment; prohibiting filing incomplete
business registration certificate; specifying the time period for
which the business registration certificate is granted; specifying authority of the Tax Commissioner to suspend or cancel certificate;
eliminating the periodic biennial business registration certificate
renewal requirement; specifying a penalty applied upon issuance,
renewal or reinstatement of the business registration certificate
pursuant to involuntary cancellation, revocation or suspension of
the business registration certificate; prohibiting filing
incomplete returns for consumers sales and service tax and use tax;
authorizing the tax commissioner to refuse, revoke, suspend or
refuse to renew a business registration certificate for a business
that is the alter ego, nominee or instrumentality of a business in
certain situations; and defining alter ego; allowing assertion of
the consumers sales and use tax exemptions authorized under section
nine-i, article fifteen, chapter eleven of the Code of West
Virginia to be asserted by use of a direct pay permit; requiring
the Tax Commissioner to design a combined reporting form; requiring
taxpayers to use the form specified by the Tax Commissioner;
authorizing the Tax Commissioner to promulgate necessary rules; and
prohibiting filing incomplete filing of withholding tax returns.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3201) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Action as to Engrossed House Bill No. 3201 having been
concluded, the Senate proceeded to the consideration of
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety
equipment requirements and enhancing penalties for crimes against
mining property.
On second reading, coming up in deferred order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §22A-2-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; §22A-2-55 of said code be amended and
reenacted; and that §61-3-12 and §61-3-29 of said code be amended
and reenacted, all to read as follows:
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-6. Movement of mining equipment.
(a) Mining equipment being transported or trammed underground,
other than ordinary sectional movements, shall be transported or
trammed by qualified personnel under the supervision of a certified foreman. When equipment is being transported or trammed, no person
shall be permitted to be inby the equipment in the ventilating
split that is passing over such equipment. To avoid accidental
contact with power lines, face equipment shall be insulated and
assemblies removed, if necessary, so as to provide clearance.
(b) The task force shall, upon the effective date of the
amendments to this section made during the two-thousand eight
Regular Session of the West Virginia Legislature, undertake a study
of methods and technologies available related to transporting
miners, mining equipment and supplies in underground mines.
(c) Upon completion of the study directed by the provisions of
subsection (b) of this section, the task force may present
recommendations to the West Virginia Board of Coal Mine Health and
Safety designed to improve the safety and efficiency of underground
mines transportation systems. The board may upon the consideration
of any such task force recommendations, promulgate rules governing
the movement of mining equipment within coal mines in the State of
West Virginia.
(d) The rules governing the movement of Mining Equipment
within Coal Mines in the State of West Virginia (CSR36-4) as
modified by the circuit court of Kanawha County, West Virginia in
civil action 79-2723 and practices as approved by the director as
of the first day of February two-thousand eight shall remain in
full force and effect until modified by any rules promulgated
pursuant to subsection (c) of this section.
§22A-2-55. Protective equipment and clothing.
(a) Welders and helpers shall use proper shields or goggles to
protect their eyes. All employees shall have approved goggles or
shields and use the same where there is a hazard from flying
particles or other eye hazards.
(b) Employees engaged in haulage operations and all other
persons employed around moving equipment on the surface and
underground shall wear snug-fitting clothing.
(c) Protective gloves shall be worn when material which may
injure hands is handled, but gloves with gauntleted cuffs shall not
be worn around moving equipment.
(d) Safety hats and safety-toed shoes shall be worn by all
persons while in or around a mine: Provided, That metatarsal
guards are not required to be worn by persons when working in those
areas of underground mine workings which average less than
forty-eight inches in height as measured from the floor to the roof
of the underground mine workings.
(e) Approved eye protection shall be worn by all persons while
being transported in open-type man trips.
(f)(1) A self-contained self-rescue device approved by the
director shall be worn by each person underground or kept within
his immediate reach and the device shall be provided by the
operator. The self-contained self-rescue device shall be adequate
to protect a miner for one hour or longer. Each operator shall
train each miner in the use of such device and refresher training
courses for all underground employees shall be held during each
calendar year.
(2) In addition to the requirements of subdivision (1) of this
subsection, the operator shall also provide caches of additional
self-contained self-rescue devices throughout the mine in
accordance with a plan approved by the director. Each additional
self-contained self-rescue device shall be adequate to protect a
miner for one hour or longer. The total number of additional
self-contained self-rescue devices, the total number of storage
caches and the placement of each cache throughout the mine shall be
established by rule pursuant to subsection (i) of this section.
Intrinsically safe battery-powered strobe lights shall be affixed
to each cache and shall be capable of automatic activation in the
event of an emergency. A luminescent sign with the words
"SELF-CONTAINED SELF-RESCUER" or "SELF-CONTAINED SELF-RESCUERS"
shall be conspicuously posted at each cache and luminescent
direction signs shall be posted leading to each cache. Lifeline
cords or other similar device, with reflective material at
twenty-five foot intervals, shall be attached to each cache from
the last open crosscut to the surface. The operator shall conduct
weekly inspections of each cache the affixed strobe lights and each
lifeline cord or other similar device to ensure operability.
(3) Any person that, without the authorization of the operator
or the director, knowingly removes or attempts to remove any
self-contained self-rescue device or battery-powered strobe light
lifeline cord from the mine or mine site with the intent to
permanently deprive the operator of the device or light lifeline
cord or knowingly tampers with or attempts to tamper with such device or light lifeline cord shall be 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 ten years or
fined not less than ten thousand dollars nor more than one hundred
thousand dollars, or both.
(g)(1) A wireless emergency communication device approved by
the director and provided by the operator shall be worn by each
person underground. The wireless emergency communication device
shall, at a minimum, be capable of receiving emergency
communications from the surface at any location throughout the
mine. Each operator shall train each miner in the use of the
device and provide refresher training courses for all underground
employees during each calendar year. The operator shall install in
or around the mine any and all equipment necessary to transmit
emergency communications from the surface to each wireless
emergency communication device at any location throughout the mine.
(2) Any person that, without the authorization of the operator
or the director, knowingly removes or attempts to remove any
wireless emergency communication device or related equipment, from
the mine or mine site with the intent to permanently deprive the
operator of the device or equipment or knowingly tampers with or
attempts to tamper with the device or equipment shall be 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 ten years or fined not less than ten thousand dollars nor more
than one hundred thousand dollars, or both.
(h)(1) A wireless tracking device approved by the director and
provided by the operator shall be worn by each person underground.
In the event of an accident or other emergency, the tracking device
shall, at a minimum, be capable of providing real-time monitoring
of the physical location of each person underground: Provided,
That no person shall discharge or discriminate against any miner
based on information gathered by a wireless tracking device during
nonemergency monitoring. Each operator shall train each miner in
the use of the device and provide refresher training courses for
all underground employees during each calendar year. The operator
shall install in or around the mine all equipment necessary to
provide real-time emergency monitoring of the physical location of
each person underground.
(2) Any person that, without the authorization of the operator
or the director, knowingly removes or attempts to remove any
wireless tracking device or related equipment, approved by the
director, from a mine or mine site with the intent to permanently
deprive the operator of the device or equipment or knowingly
tampers with or attempts to tamper with the device or equipment
shall be 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 ten years or fined not less than ten thousand
dollars nor more than one hundred thousand dollars, or both.
(i) The director may promulgate emergency and legislative
rules to implement and enforce this section pursuant to the
provisions of article three, chapter twenty-nine-a of this code.
(j) The penalties set forth in this article enacted during the
regular session of the Legislature in January, two thousand six,
shall become effective the first day of July, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-12. Entry of building other than dwelling; entry of
railroad, traction or motorcar, steamboat or other
vessel; penalties; counts in indictment.
If any person shall, at any time, break and enter, or shall
enter without breaking, any office, shop, underground coal mine,
storehouse, warehouse, banking house, or any house or building,
other than a dwelling house or outhouse adjoining thereto or
occupied therewith, or any railroad or traction car, propelled by
steam, electricity or otherwise, or any steamboat or other boat or
vessel, within the jurisdiction of any county in this state, with
intent to commit a felony or any larceny, he or she shall be deemed
guilty of a felony, and, upon conviction, shall be confined in the
penitentiary a state correctional facility not less than one nor
more than ten years. And if any person shall, at any time, break
and enter, or shall enter without breaking, any automobile,
motorcar or bus, with like intent, within the jurisdiction of any
county in this state, he shall be guilty of a misdemeanor, and,
upon conviction, shall be confined in the county jail not less than
two nor more than twelve months and be fined not exceeding one
hundred dollars.
An indictment for burglary may contain one or more counts for breaking and entering, or for entering without breaking, the house
or building mentioned in the count for burglary under the
provisions of this and the preceding section.
§61-3-29. Damage or destruction of railroad or public utility
company property, or real or personal property used
for producing, generating, transmitting,
distributing, treating or collecting electricity,
natural gas, coal, water, wastewater, stormwater,
telecommunications or cable service; penalties;
restitution.
(a) Any person who knowingly and willfully damages or destroys
any real or personal property owned by a railroad company, or
public utility company, or any real or personal property used for
producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than two thousand dollars, or confined in the county or regional
jail not more than one year, or both.
(b) Any person who knowingly and willfully: (1) damages or
destroys any real or personal property owned by a railroad company,
or public utility company, or any real or personal property used
for producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service; causing and, (2)
causes serious bodily injury to another is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand
dollars nor more than fifty thousand dollars, or confined in a
state correctional facility not less than one nor more than five
years, or both.
(c) Nothing in this section may be construed to limit or
restrict the ability of an entity referred to in subsection (a) or
(b) of this section or a property owner or other person who has
been damaged or injured as a result of a violation of this section
from seeking recovery for damages arising from violation of this
section.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4021) was reported by the Clerk and adopted:
On page two, section six, lines eleven through seventeen, by
striking out all of subsection (d) and inserting in lieu thereof
the following:
(d) The current legislative rule 36CSR4, effective the
nineteenth day of July, one thousand nine-hundred seventy-nine,
relating to "Rules and Regulations Governing the Movement of Mining
Equipment within Coal Mines in the State of West Virginia", is
hereby limited and qualified as to its force and effect and shall
only be read to be effective to the extent provided as follows:
To the extent that the rule permits the movement of major
pieces of heavy mining equipment with men inby the equipment in the
ventilating split that is passing over such equipment, to-wit,
Section 4: applying the prohibition only to "transporting" and only "where energized D.C. powered trolley or feeder wires are present";
Sections 5.1, 9.1, 10.1, 12.1 and 13.1 to the extent that they
involve transporting or tramming such equipment with men inby;
Sections 6.1 and 6.2 only to the extent that such equipment is not
designed by the manufacturer to operate on track; Section 7.1 only
to the extent that such equipment exceeds the length or width of
the mine car; and Section 11.1 only to the extent that such
equipment in said Section exceeds the length, width or cargo
carrying capacity of the unit being used to transport such
equipment. Construction work and rehabilitation work are not
prohibited except to the extent that such would involve the
movement of major pieces of heavy mining equipment into the precise
area where such work is to be performed, with men inby.
(e) The provisions of subsection (d) of this section, as
enforced upon the first day of February, two thousand eight, shall
remain in full force and effect until modified by any rules
promulgated pursuant to subsection (c) of this section.
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4021), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4021) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4021) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4021--A Bill to amend and
reenact §22A-2-6 of the Code of West Virginia, 1931, as amended; to
amend and reenact §22A-2-55 of said code; and to amend and reenact
§61-3-12 and §61-3-29 of said code, all relating generally to coal mine health and safety; clarifying currency of rules and policies
relating to transportation of miners and supplies; directing the
West Virginia Mine Safety Task Force study possible improvements in
transportation of miners and supplies in underground coal mines;
eliminating requirement that strobe lights be affixed to caches of
self-contained self-rescue devices; expanding criminal penalties
for theft of certain coal mine equipment; establishing criminal
penalties for illegal entry into underground coal mines; creating
a criminal penalty for damage or destruction of coal mine equipment
and property; and creating a criminal penalty for damage or
destruction of coal mine equipment and property when a serious
bodily injury results.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator, the Senate recessed for five minutes.
Night Session
Upon expiration of the recess, the Senate reconvened.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide
residents wholly or solely owning greyhounds.
On second reading, having been reported from the Committee on
Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4307) was taken up
for immediate consideration and read a second time.
Under rule number forty-three of the Rules of the Senate,
Senator Green was excused from voting on any matter pertaining to
the bill.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page thirteen, section ten, line two hundred eight, after
the word "start" by changing the period to a colon and inserting
the following proviso: Provided, That those kennels who are
required to race West Virginia Whelped Greyhounds on their active
list that finish fifth through eighth shall receive one half point
value from the regular purse fund per official start. The West
Virginia Greyhound Owners and Breeders Association shall submit a
list of any additions or deletions to the numbers of the registries
during the first of each month.;
And,
On page fourteen, section ten, lines two hundred thirty-one
and two hundred thirty-two, by striking out the words "and
maintenance".
The bill (Eng. Com. Sub. for H. B. No. 4307), as amended, was
then ordered to third reading.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the consideration of
Eng. House Bill No. 4623, Relating to establishing minimum
deductions.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4623) was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 23. ADDITIONAL POWERS, DUTIES AND RESPONSIBILITIES OF
GOVERNING BOARDS OF STATE INSTITUTIONS OF HIGHER EDUCATION.
§18-23-4a. Supplemental and additional retirement plans for
employees; payroll deductions; authority to match
employee contributions; retroactive curative and
technical corrective action.
(a) Any reference in this code to the "additional retirement
plan" relating to state higher education employees, means the
"higher education retirement plan" provided in this section. Any
state higher education employee participating in a retirement plan
upon the effective date of this section continues to participate in
that plan and may not elect to participate in any other state
retirement plan. Any such retirement plan continues to be governed
by the provisions of law applicable on the effective date of this
section.
(b) The Higher Education Policy Commission, on behalf of the
governing boards, Council for Community and Technical College
Education and itself, shall contract for a retirement plan for its employees, to be known as the "Higher Education Retirement Plan".
The governing boards, Council for Community and Technical College
Education and Higher Education Policy Commission shall make
periodic deductions from the salary payments due the employees in
the amount they are required to contribute to the Higher Education
Retirement Plan, which deductions shall be six percent.
(c) The Higher Education Policy Commission, Council for
Community and Technical College Education and the governing boards,
with policy commission approval, may contract for a supplemental
retirement plan plans for any or all of their employees to
supplement the benefits the employees otherwise receive. The
governing boards, Council for Community and Technical College
Education and Higher Education Policy Commission may make
additional periodic deductions from the salary payments due the
employees in the amount they are required to contribute for the
supplemental retirement plan.
(d) The Higher Education Policy Commission shall conduct a
study of the feasibility of offering multiple vendors of retirement
products and services to be offered for the benefit of higher
education employees. The commission shall report the findings of
the study, along with a plan for offering multiple vendors for the
employees, to the Joint Committee on Pensions and Retirement no
later than the first day of December, two thousand one. Upon
approval by the Joint Committee on Pensions and Retirement, the
commission shall provide a choice of vendors to their employees.
Any selection of vendors made by the commission shall be determined according to a request for proposal issued pursuant to the
provisions of section four, article five, chapter eighteen-b of
this code.
(e) (d) Each governing board, the Council for Community and
Technical College Education and the Higher Education Policy
Commission, by way of additional compensation to their employees,
shall pay an amount, which, at a minimum, equal to equals the
contributions of the employees into the higher education retirement
plan from funds appropriated to the board or commission for
personal services.
(e) As part of an overall compensation plan, the Higher
Education Policy Commission, the Council for Community and
Technical College Education or an institutional governing board,
each at its sole discretion, may increase its contributions to any
employee retirement plan to an amount that exceeds the
contributions of employees.
(f) Each participating employee has a full and immediate
vested interest in the retirement and death benefits accrued from
all the moneys paid into the Higher Education Retirement Plan or a
supplemental retirement plan for his or her benefit. Upon proper
requisition of a board, the Council for Community and Technical
College Education or the Higher Education Policy Commission, the
Auditor periodically shall periodically issue a warrant, payable as
specified in the requisition, for the total contributions so
withheld from the salaries of all participating employees and for
the matching funds of the governing board's board, Council for Community and Technical College Education or Higher Education
Policy Commission's matching funds Commission.
(g) Any person whose employment commences on or after the
first day of July, one thousand nine hundred ninety-one, and who is
eligible to participate in the Higher Education Retirement Plan,
shall participate in that plan and is not eligible to participate
in any other state retirement system: Provided, That the foregoing
provision does not apply to a person designated as a 21st Century
Learner Fellow pursuant to section eleven, article three, chapter
eighteen-a of this code. The additional retirement plan contracted
for by the governing boards prior to the first day of July, one
thousand nine hundred ninety-one, remains in effect unless changed
by the Higher Education Policy Commission. Nothing in this section
may be construed to consider employees of the governing boards or
the Council for Community and Technical College Education as
employees of the Higher Education Policy Commission, nor is the
Higher Education Policy Commission responsible or liable for
retirement benefits contracted by, or on behalf of, the governing
boards or the Council for Community and Technical College
Education.
(h) It is the intent of the Legislature in amending and
reenacting this section during its two thousand one regular session
solely to:
(1) Maintain the current retirement plans offered to state
higher education employees in their current form;
(2) Clarify that employees of the Higher Education Policy Commission are participants in the higher education retirement
plan;
(3) Codify the current contribution levels of the governing
boards, the Higher Education Policy Commission and their employees
toward the present higher education retirement plan;
(4) Make mandatory the minimum contribution levels of the
governing boards and Higher Education Policy Commission;
(5) Establish a standardized retirement policy for all state
higher education employees as determined by either the policy
commission or governing boards;
(6) Clarify the application and purposes of the additional and
supplemental retirement plans previously provided for in this
section; and
(7) Remove obsolete and archaic language.
The bill (Eng. H. B. No. 4623), as amended, was then ordered
to third reading.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain
firefighters' workers' compensation benefits.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Fleischauer, Guthrie and Ellem.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Jenkins, Minard and McKenzie.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the
administrative link between Shepherd University and Blue Ridge
Community and Technical College.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Plymale, Edgell, Prezioso, Wells and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes
to the West Virginia State Police Retirement System.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Foster, McCabe and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 4482, Allowing payments from the Parkways
Authority to the Hatfield-McCoy Regional Recreational Authority to
continue past the nine-year limitation.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Bailey, Edgell and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 573 (originating in the
Committee on Education), Increasing public school teachers' and
service personnel annual salaries.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Com. Sub. for Senate Bill No. 573 (originating
in the Committee on Finance)--A Bill to amend and reenact §18A-4-2,
§18A-4-3 and §18A-4-8a of the Code of West Virginia, 1931, as
amended, all relating to school personnel salary increases;
increasing minimum salaries of public school teachers; increasing
salary increment for principals and assistant principals; and
increasing minimum salaries of school service personnel.
With the recommendation that the committee substitute for
committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Com. Sub. for Com. Sub. for S. B. No. 573)
contained in the preceding report from the Committee on Finance was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and
third reading.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 573 was then read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 573) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 573) takes effect July 1,
2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 788 (originating in the Committee on the
Judiciary)--A Bill to amend and reenact §17C-5-2 of the Code of
West Virginia, 1931, as amended, relating
generally to driving
under the influence; requiring mandatory community service for
persons convicted of driving under the influence of alcohol,
controlled substances or drugs; and requiring a registry of persons
convicted to be maintained by the State Police.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4023, Provide for the denial
or suspension of a driver's license for any student who withdraws
from school or fails to receive passing grades.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4023) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman, Chafin,
Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Stollings, Wells, White and Tomblin (Mr.
President)--25.
The nays were: Barnes, Boley, Caruth, Guills, Sprouse,
Sypolt, Unger and Yoder--8.
Absent: Sharpe--1.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4075, Providing for a video recording
device monitoring system during Amber Alert periods.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V, Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4075) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4075) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4075) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4117, Expanding eligibility
for state minimum salary supplements for classroom teachers
achieving certain national certification.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4117) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a second time and ordered to third
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4150, Requiring the
purchasing of American-made flags with state funds.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4150) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4150) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4150) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4296, Relating to the rights
of crime victims.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4296) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 4296) was then read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-7a. Denial of relief; hearings; evidence; record; judgment.
(a) If the petition, affidavits, exhibits, records and other
documentary evidence attached thereto, or the return or other
pleadings, or the record in the proceedings which resulted in the
conviction and sentence, or the record or records in a proceeding
or proceedings on a prior petition or petitions filed under the
provisions of this article, or the record or records in any other
proceeding or proceedings instituted by the petitioner to secure
relief from his conviction or sentence, show to the satisfaction of
the court that the petitioner is entitled to no relief, or that the
contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court
shall enter an order denying the relief sought. If it appears to
the court from said petition, affidavits, exhibits, records and
other documentary evidence attached thereto, or the return or other
pleadings, or any such record or records referred to above, that
there is probable cause to believe that the petitioner may be
entitled to some relief and that the contention or contentions and
grounds (in fact or law) advanced have not been previously and
finally adjudicated or waived, the court shall promptly hold a
hearing and/or take evidence on the contention or contentions and
grounds (in fact or law) advanced, and the court shall pass upon
all issues of fact without a jury. The court may also provide for
one or more hearings to be held and/or evidence to be taken in any
other county or counties in the state.
(b) A record of all proceedings under this article and all
hearings and evidence shall be made and kept. The evidentiary
depositions of witnesses taken by either the petitioner or the
state, on reasonable notice to the other, may be read as evidence.
The court may receive proof by proper oral testimony or other
proper evidence. All of the evidence shall be made a part of the
record. When a hearing is held and/or evidence is taken by a judge
of a circuit court or statutory court in vacation, a transcript of
the proceedings shall be signed by the judge and certified to the
clerk of the court in which the judgment is to be rendered, and be
entered by him among the records of that court. A record of all
proceedings in the supreme court of appeals shall be entered among the records of such court.
(c) When the court determines to deny or grant relief, as the
case may be, the court shall enter an appropriate order with
respect to the conviction or sentence in the former criminal
proceedings and such supplementary matters as are deemed necessary
and proper to the findings in the case, including, but not limited
to, remand, the vacating or setting aside of the plea, conviction
and sentence, rearraignment, retrial, custody, bail, discharge,
correction of sentence and resentencing, or other matters which may
be necessary and proper. In any order entered in accordance with
the provisions of this section, the court shall make specific
findings of fact and conclusions of law relating to each contention
or contentions and grounds (in fact or law) advanced, shall clearly
state the grounds upon which the matter was determined, and shall
state whether a federal and/or state right was presented and
decided. Any order entered in accordance with the provisions of
this section shall constitute a final judgment, and, unless
reversed, shall be conclusive.
(d) Notwithstanding any provision of law to the contrary,
whenever a conviction from a crime of violence is reversed or a
sentence of incarceration for such an offence is vacated pursuant
to the provisions of this article, the prosecuting attorney of the
county of prosecution shall, prior to a retrial or entering into
any plea negotiations or sentence negotiations to resolve the
matter, notify the victim or if the offence was a homicide, the
next of kin of the victim, by United States mail sent to the last known address of said person, if his or her name and address has
previously been provided to the prosecuting attorney.
The bill, as amended, was then ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4296) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4296) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4296--A Bill
to amend and
reenact §53-4A-7 of the Code of West Virginia, 1931, as amended,
relating to the rights of crime victims; requiring that prosecuting
attorneys provide notice to victims of crimes of violence or next
of kin in homicides when a habeas corpus proceeding vacates a
conviction or sentence and the victim or next of kin previously
provides names and addresses.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4476, Public-Private
Transportation Facilities Act.
With amendments from the Committee on Transportation and
Infrastructure pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2008;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4476) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8,
§17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14,
§17-27-15, §17-27-16, §17-27-17 and §17-27-18, all to read as
follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-1. Legislative findings and purposes.
The Legislature finds and declares:
(1) That there is a public need for timely acquisition or
construction of and improvements to transportation facilities
within the state that are compatible with state and local
transportation plans;
(2) That public need may not be wholly satisfied by existing
ways in which transportation facilities are acquired, constructed
or improved;
(3) That authorizing private entities to acquire, construct or
improve one or more transportation facilities may result in the
availability of transportation facilities to the public in a more
timely or less costly manner, thereby serving the public health,
safety, convenience and welfare and the enhancement of the
residential, agricultural, recreational, economic, commercial and
industrial opportunities;
(4) That providing a mechanism for the solicitation, receipt
and consideration of proposals submitted by private entities for
the purposes described in this section serves the public purpose of
this article to the extent that the action facilitates the timely
acquisition or construction of or improvement to a qualifying transportation facility or the continued operation of a qualifying
transportation facility; and
(5) That providing for the expansion and acceleration of
transportation financing using innovative financing mechanisms,
including, but not limited to, design-build contracting and
financing arrangements, will add to the convenience of the public
and allow public and private entities to have the greatest possible
flexibility in contracting with each other for the provision of the
public services which are the subject of this article.
§17-27-2. Definitions.
As used in this article, the following words and terms have
the following meanings:
(1) "Comprehensive agreement" means the comprehensive
agreement by and between a developer and the division required by
section nine of this article.
(2) "Department" means the Department of Transportation.
(3) "Developer" means the private entity that is responsible
for the acquisition, construction or improvement of a qualifying
transportation facility.
(4) "Division" means the Division of Highways.
(5) "Material default" means any default by the developer in
the performance of its duties under subsection (f), section eight
of this article that jeopardizes adequate service to the public
from a qualifying transportation facility and remains unremedied
after the division has provided notice to the developer and a
reasonable cure period has elapsed.
(6) "Private entity" means any natural person, corporation,
limited liability company, partnership, joint venture or other
private business entity.
(7) "Public entity" means the state of West Virginia or any
political subdivision thereof.
(8) "Qualifying transportation facility" means one or more
transportation facilities acquired, constructed or improved by a
private entity pursuant to this article.
(9) "Revenues" mean the user fees or service payments
generated by a qualifying transportation facility.
(10) "Service contract" means a contract entered into between
a public entity and a developer pursuant to section six of this
article.
(11) "Service payments" mean payments to the developer of a
qualifying transportation facility pursuant to a service contract.
(12) "State" means the state of West Virginia.
(13) "Transportation facility" means any public inland
waterway port facility, road, bridge, tunnel, overpass or existing
airport used for the transportation of persons or goods, and the
structures, equipment, facilities or improvements necessary or
incident thereto.
(14) "User fees" mean the rates, tolls, fees or other charges
imposed by the developer of a qualifying transportation facility
for use of all or a portion of the qualifying transportation
facility pursuant to the comprehensive agreement.
§17-27-3. Prerequisites for development.
Any private entity seeking authorization under this article to
acquire, construct or improve a transportation facility shall first
submit a conceptual proposal as set forth in section five of this
article: Provided, That notwithstanding any provision of this code
to the contrary, the division has no duty to accept, consider or
review a conceptual proposal that is not solicited by the division.
The private entity may initiate the approval process pursuant to
subsections (a) and (b) of said section or the division may
alternatively request proposals pursuant to subsection (c) of said
section.
§17-27-4. Powers and duties of the division and other agencies
that are part of the department.
In addition to the powers and duties set forth elsewhere in
this code, the division and any other agency that is part of the
department may:
(1) Undertake one level of review for each proposal submitted
by a private entity in accordance with this article. The review
shall consist of the review by the division of the conceptual
proposal: Provided, That expenses of the division incurred for
review of proposal shall be paid by the private entity submitting
the proposal. The division shall take into account at all times
the needs and funding capabilities of the state as a whole in terms
of transportation;
(2) Enter into agreements, contracts or other transactions
with any agency that is part of the department, any federal, state,
county, municipal agency or private entity;
(3) Act on behalf of the state and represent the state in the
planning, financing, development and construction of any
transportation facility for which solicited proposals have been
received in accordance with the provisions of this article, with
the concurrence of the affected public entity. Other public
entities in this state shall cooperate to the fullest extent with
what the division considers appropriate to effectuate the duties of
the division;
(4) Exempt from disclosure any sensitive business, commercial
or financial information that is not customarily provided to
business competitors that is submitted to the division for final
review and approval;
(5) Exempt from disclosure any documents, communications or
information described in this section including, but not limited
to, the project's design, management, financing and other details
in accordance with the provisions of article one, chapter
twenty-nine-b of this code; and
(6) Do any and all things necessary to carry out and
accomplish the purposes of this article.
§17-27-5. Submission and review of conceptual proposals; approval
by the Commissioner of Highways.
(a) A private entity may submit in writing a solicited
conceptual proposal for a transportation facility to the division
for consideration. The conceptual proposal shall include the
following:
(1) A statement of the private entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation
facility; and
(4) A statement setting forth the degree of public support for
the proposed transportation facility, including a statement of the
benefits of the proposed transportation facility to the public and
its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall
submit to the Commissioner of Highways the conceptual proposals and
priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the
following material and information unless waived by the division
with respect to the transportation facility or facilities that the
private entity proposes to develop as a qualifying transportation
facility:
(1) A topographic map (1:2,000 or other appropriate scale)
indicating the location of the transportation facility or
facilities;
(2) A description of the transportation facility or
facilities, including the conceptual design of the facility or
facilities and all proposed interconnections with other
transportation facilities;
(3) The projected total life-cycle cost of the transportation
facility or facilities and the proposed date for acquisition of or
the beginning of construction of, or improvements to, the transportation facility or facilities;
(4) A statement setting forth the method by which the
developer proposes to secure all property interests required for
the transportation facility or facilities: Provided, That with the
approval of the division, the private entity may request that the
comprehensive agreement assign the division with responsibility for
securing all property interests, including public utility
facilities, with all costs, including costs of acquiring the
property, to be reimbursed to the division by the private entity.
The statement shall include the following information regarding the
property interests or rights, including, but not limited to, rights
to extract mineable minerals:
(A) The names and addresses, if known, of the current owners
of the property needed for the transportation facility or
facilities;
(B) The nature of the property interests to be acquired;
(C) Any property that the division may expect to condemn; and
(D) The extent to which the property has been or will be
subjected to the extraction of mineable minerals.
(5) Information relating to the current transportation plans,
if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for
acquisition or construction of or improvements to the
transportation facility or facilities from local, state or federal
agencies and a projected schedule for obtaining the permits and
approvals: Provided, That the acquisition, construction, improvement or operation of a qualifying transportation facility
that includes the extraction of mineable minerals is required to
obtain all necessary permits or approvals from all applicable
authorities in the same manner as if it were not a qualifying
transportation facility under this article;
(7) A list of public utility facilities, if any, that will be
crossed or affected by or as the result of the construction or
improvement of the public port transportation facility or
facilities and a statement of the plans of the developer to
accommodate the crossings or relocations;
(8) A statement setting forth the developer's general plans
for financing and operating the transportation facility or
facilities;
(9) The names and addresses of the persons who may be
contacted for further information concerning the request;
(10) Information about the developer, including, but not
limited to, an organizational chart of the developer,
capitalization of the developer, experience in the operation of
transportation facilities and references and certificates of good
standing from the Tax Commissioner, Insurance Commissioner and the
Division of Unemployment Compensation evidencing that the developer
is in good standing with state tax, workers' compensation and
unemployment compensation laws, respectively; and
(11) Any additional material and information requested by the
Commissioner of Highways.
(d) The division, with approval of the Commissioner of Highways, may solicit proposals from private entities for the
acquisition, construction or improvement of transportation
facilities in a form and with the content determined by the
division.
(e) The division may solicit any proposal for the acquisition,
construction or improvement of the transportation facility or
facilities as a qualifying transportation facility if it is
determined that it serves the public purpose of this article. The
division may determine that the acquisition, construction or
improvement of the transportation facility or facilities as a
qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of
the type the private entity proposes to operate as a qualifying
transportation facility;
(2) The transportation facility and the proposed
interconnections with existing transportation facilities and the
developer's plans for development of the qualifying transportation
facility are reasonable and compatible with the state
transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or
facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction, improvement or the
financing of the transportation facilities does not involve any
moneys from the State Road Fund unless those moneys from the State
Road Fund serve as a required match for federal funds specifically
earmarked in a federal authorization or appropriation bill for a transportation facility to be acquired, constructed or equipped
pursuant to this article: Provided, That the dedication of State
Road Fund moneys in any fiscal year as state required match for the
federal earmark does not exceed four percent of the immediate
preceding three fiscal years average of division's construction
contracts awarded under the competitive bid process.
(5) The use of federal funds in connection with the financing
of a qualifying transportation facility has been determined by the
division to be compatible with the state transportation plan and
with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely
acquisition or construction of or improvements to the
transportation facility for their more efficient operation and that
the private entity's plans will result in a more timely and
economical delivery of the transportation facility than otherwise
available under existing delivery systems.
(f) Notwithstanding any provision of this article to the
contrary, the recommendation of the division to the Commissioner of
Highways is subject to:
(1) The private entity's entering into a comprehensive
agreement with the division; and
(2) With respect to transportation facilities, the requirement
that public information dissemination with regard to any proposal
under consideration comply with the division's policy on the public
involvement process, as revised.
(g) In connection with its approval of the development of the transportation facility as a qualifying transportation facility,
the division shall establish a date for the acquisition of or the
beginning of construction of or improvements to the qualifying
transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division,
the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public
of the final selection for the project.
§17-27-6. Service contracts.
In addition to any authority otherwise conferred by law, any
public entity may contract for services to be provided for a
qualifying transportation facility in exchange for service payments
and other consideration as the division determines appropriate.
§17-27-7. Dedication of public property.
Any public entity may dedicate any property interest that it
has for public use as a qualified transportation facility if it
finds it will serve the public purpose of this article. In
connection with the dedication, a public entity may convey any
property interest that it has to the developer, by contract, for
any consideration determined by the public entity. This
consideration may include, without limitation, the agreement of the
developer to develop the qualifying transportation facility. No
real property may be dedicated by a public entity pursuant to this
article unless all other public notice and comment requirements are
met.
§17-27-8. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a
private entity having the same form of organization as the
developer and may acquire, construct or improve the qualifying
transportation facility and impose user fees in connection with the
use of the facility.
(b) The developer may own, lease or acquire any other right to
facilitate the development of the qualifying transportation
facility.
(c) Any financing of the qualifying transportation facility
may be in the amounts and upon terms and conditions determined by
the developer. The developer may issue debt, equity or other
securities or obligations, enter into sale and leaseback
transactions and secure any financing with a pledge of, security
interest in, or lien on, any or all of its property, including all
of its property interests in the qualifying transportation
facility.
(d) Subject to applicable permit requirements, the developer
may cross any canal or navigable watercourse as long as the
crossing does not unreasonably interfere with then current
navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the
developer may:
(1) Make classifications according to reasonable categories
for assessment of user fees; and
(2) With the consent of the division, make and enforce reasonable rules to the same extent that the division may make and
enforce rules with respect to a similar transportation facility.
The developer may, by agreement with appropriate law-enforcement
agencies, arrange for video enforcement in connection with its toll
collection activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying
transportation facility in a manner that meets the engineering
standards of:
(A) The authority for facilities operated and maintained by
the division, in accordance with the provisions of the
comprehensive agreement; and
(B) The division, in accordance with the provisions of the
comprehensive agreement;
(2) Keep the qualifying transportation facility open for use
by the members of the public at all times after its initial opening
upon payment of the applicable user fees or service payments:
Provided, That the qualifying transportation facility may be
temporarily closed because of emergencies or, with the consent of
the division, to protect the safety of the public or for reasonable
construction or maintenance procedures;
(3) Contract for the performance of all maintenance and
operation of the transportation facility through the division,
using its maintenance and operations practices, until the date of
termination of the developer's duties as defined in the
comprehensive agreement;
(4) Cooperate with the division in establishing any
interconnection with the qualifying transportation facility
requested by the division;
(5) Remain in compliance with state tax, workers' compensation
and unemployment compensation laws; and
(6) Comply with the provisions of the comprehensive agreement
and any service contract.
§17-27-9. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the
qualifying transportation facility, the developer shall enter into
a comprehensive agreement with the division. The comprehensive
agreement shall provide for:
(1) Delivery of performance or payment bonds in connection
with the construction of or improvements to the qualifying
transportation facility, in the forms and amounts satisfactory to
the division;
(2) Review and approval of the final plans and specifications
for the qualifying transportation facility by the division;
(3) Inspection of the construction of or improvements to the
qualifying transportation facility to ensure that they conform to
the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability
insurance or self-insurance, in a form and amount satisfactory to
the division and reasonably sufficient to insure coverage of tort
liability to the public and employees and to enable the continued
operation of the qualifying transportation facility: Provided, That in no event may the insurance impose any pecuniary liability
on the state, its agencies or any political subdivision of the
state. Copies of the policies shall be filed with the division
accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of
the developer by the division and the taking of any actions the
division finds appropriate to ensure that the qualifying
transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division
for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic
basis;
(8) A reasonable maximum rate of return on investment for the
developer;
(9) The date of termination of the developer's duties under
this article and dedication to the division; and
(10) That a transportation facility shall accommodate all
public utilities on a reasonable, nondiscriminatory and completely
neutral basis and in compliance with the provisions of section
seventeen-b, article four, chapter seventeen of this code.
(b) The comprehensive agreement may require user fees
established by agreement of the parties. Any user fees shall be
set at a level that, taking into account any service payments,
allows the developer the rate of return on its investment specified
in the comprehensive agreement: Provided, That the schedule and
amount of the initial user fees to be imposed and any increase of the user fees must be approved by the Commissioner of the Division
of Highways. A copy of any service contract shall be filed with
the division. A schedule of the current user fees shall be made
available by the developer to any member of the public on request.
In negotiating user fees under this section, the parties shall
establish fees that are the same for persons using the facility
under like conditions and that will not unreasonably discourage use
of the qualifying transportation facility. The execution of the
comprehensive agreement or any amendment to the comprehensive
agreement constitutes conclusive evidence that the user fees
provided in the comprehensive agreement comply with this article.
User fees established in the comprehensive agreement as a source of
revenues may be in addition to, or in lieu of, service payments.
(c) In the comprehensive agreement, the division may agree to
accept grants or loans from the developer, from time to time, from
amounts received from the state or federal government or any agency
or instrumentality of the state or federal government.
(d) The comprehensive agreement shall incorporate the duties
of the developer under this article and may contain any other terms
and conditions that the division determines serve the public
purpose of this chapter. Without limitation, the comprehensive
agreement may contain provisions under which the division agrees to
provide notice of default and cure rights for the benefit of the
developer and the persons specified in the comprehensive agreement
as providing financing for the qualifying transportation facility.
The comprehensive agreement may contain any other lawful terms and conditions to which the developer and the division mutually agree,
including, without limitation, provisions regarding unavoidable
delays or provisions providing for a loan of public funds to the
developer to acquire, construct or improve one or more qualifying
transportation facilities.
(e) The comprehensive agreement shall require the deposit of
any earnings in excess of the maximum rate of return as negotiated
in the comprehensive agreement in the Economic Development Project
Bridge Loan Fund established pursuant to section eighteen-a,
article twenty-two, chapter twenty-nine of this code.
(f) Notwithstanding any provision of this article to the
contrary, the division may not enter into any comprehensive
agreements with a developer after the thirtieth day of June, two
thousand thirteen.
(g) The Division shall provide the Joint Committee on
Government and Finance with a copy of any proposal selected from a
solicitation for their possible comment. The Division shall wait
thirty days to allow consideration of any comments provided by the
Joint Committee on Government and Finance.
§17-27-10. Federal, state and local assistance.
The division may take any action to obtain federal, state or
local assistance for a qualifying transportation facility that
serves the public purpose of this article and may enter into any
contracts required to receive federal assistance. The division may
determine that it serves the public purpose of this article for all
or any portion of the costs of a qualifying transportation facility to be paid, directly or indirectly, from the proceeds of a grant or
loan made by the local, state or federal government or any agency
or instrumentality thereof.
§17-27-11. Material default; remedies.
(a) Except upon written agreement of the developer and any
other parties identified in the comprehensive agreement, the
division may exercise, at its discretion, any or all of the
following remedies provided in this section or elsewhere in this
article to remedy any material default that has occurred or may
continue to occur.
(1) To elect to take over the transportation facility or
facilities and in that case it shall succeed to all of the rights,
title and interest in the transportation facility or facilities,
subject to any liens on revenues previously granted by the
developer to any person providing financing for the facility or
facilities and the provisions of subsection (c) of this section;
(2) To exercise the power of condemnation to acquire the
qualifying transportation facility or facilities. Any person who
has provided financing for the qualifying transportation facility
and the developer, to the extent of its capital investment, may
participate in the condemnation proceedings with the standing of a
property owner;
(3) To terminate the comprehensive agreement and exercise any
other rights and remedies that may be available to it at law or in
equity, subject only to the express limitations of the terms of the
comprehensive agreement; and
(4) To make or cause to be made any appropriate claims under
the performance or payment bonds required by this article.
(b) In the event the division elects to take over a qualifying
transportation facility pursuant to subdivision (1), subsection (a)
of this section, the division may acquire, construct or improve the
transportation facility, impose user fees for the use of the
transportation facility and comply with any service contracts as if
it were the developer. Any revenues that are subject to a lien
shall be collected for the benefit of, and paid to, secured
parties, as their interests may appear, to the extent necessary to
satisfy the developer's obligations to secured parties, including
the maintenance of reserves and the liens shall be correspondingly
reduced and, when paid off, released. Remaining revenues, if any,
after all payments to, or for the benefit of, secured parties shall
be paid to the developer, subject to the negotiated maximum rate of
return. The right to receive the payment, if any, shall be
considered just compensation for the transportation facility or
facilities. The full faith and credit of the division may not be
pledged to secure any financing of the developer by the election to
take over the qualifying transportation facility. Assumption of
development of the qualifying transportation facility does not
obligate the division to pay any obligation of the developer from
sources other than revenues.
§17-27-12. Governmental entities prohibited from pledging full
faith and credit.
The full faith and credit of the state, or any county, municipality or political subdivision of the state may not be
pledged to secure any financing of the developer in connection with
the acquisition, construction or equipping of a qualifying
transportation facility.
§17-27-13. Condemnation.
(a) At the request of the developer, the division may exercise
the power of condemnation that it has under law for the purpose of
acquiring any lands or estates or interests in any lands or estates
to the extent that the division finds that the action serves the
public purpose of this article: Provided, That the power of
condemnation may not be exercised if the extraction of mineable
minerals is outside the defined one thousand foot corridor of the
project or work which is the subject of a solicited conceptual
proposal, comprehensive agreement or service contract submitted or
entered into under the provisions of this article. Any amounts to
be paid in any condemnation proceeding shall be paid by the
developer.
(b) Until the division has provided written certification as
to the existence of a material default under subsection (a),
section eleven of this article, the power of condemnation may not
be exercised against a qualifying transportation facility.
§17-27-14. Utility crossings.
The developer and each county, municipality, public service
district, public utility, railroad and cable television provider
whose facilities are to be crossed or affected shall cooperate
fully with the other in planning and arranging the manner of the crossing or relocation of the facilities. Any entity possessing
the power of condemnation is expressly granted the powers in
connection with the moving or relocation of facilities to be
crossed by the qualifying transportation facility or that must be
relocated to the extent that the moving or relocation is made
necessary or desirable by construction of or improvements to the
qualifying transportation facility, which includes construction of
or improvements to temporary facilities for the purpose of
providing service during the period of construction or improvement.
Any amount to be paid for the crossing, construction, moving or
relocating of facilities shall be paid by the developer.
§17-27-15. Dedication of assets.
The division shall terminate the developer's authority and
duties under this article on the date set forth in the
comprehensive agreement. Upon termination, the division and duties
of the developer under this article cease and the qualifying
transportation facility shall be dedicated to the division for
public use.
§17-27-16. Qualifying a transportation facility as a public
improvement.
All qualifying transportation facilities authorized under this
article are public improvements and are subject to article five-a,
chapter twenty-one of this code. Article twenty-two, chapter five
of this code applies to all qualifying transportation facilities
authorized under this article. All construction, reconstruction,
repair or improvement of qualifying transportation facilities authorized under this article shall be awarded by competitive
bidding. Competitive bids shall be solicited by the division for
each construction contract in excess of twenty-five thousand
dollars in total cost. Construction costs should be of sufficient
size that the performance and payment bonds are in the ten million
to thirty million dollar range, where possible. Competitive bids
shall be solicited by the division through publication of a Class
II legal advertisement, in compliance with the provisions of
article three, chapter fifty-nine of this code, and the publication
area is the county or municipality in which the transportation
facility is to be located. The advertisement shall also be
published as a Class II advertisement in a newspaper of general
circulation published in the city of Charleston. The advertisement
shall solicit sealed proposals for the construction of the
transportation facility, stating the time and place for the opening
of bids. All bids shall be publicly opened and read aloud.
Construction contracts shall be awarded to the lowest qualified
responsible bidder, who shall furnish a sufficient performance or
payment bond: Provided, That both the division and the private
entity have the right to reject all bids and solicit new bids for
the construction contract. The provisions of article one-c,
chapter twenty-one of this code apply to the construction of all
qualifying transportation facilities approved under this article.
§17-27-17. Exemptions from taxation.
(a) The exercise of the powers granted in this article will be
in all respects for the benefit of the people of this state, for the improvement of their health, safety, convenience and welfare
and for the enhancement of their residential, agricultural,
recreational, economic, commercial and industrial opportunities and
is a public purpose. As the construction, acquisition,
improvement, operation and maintenance of qualifying transportation
facilities will constitute the performance of essential
governmental functions, a developer is not required to pay any
taxes or assessments upon any qualifying transportation facility or
any property acquired or used by the developer under the provisions
of this article or upon the income therefrom, other than taxes
collected from the consumer pursuant to article fifteen, chapter
eleven of this code.
(b) Nothing in this section shall be construed to exempt a
developer from the imposition of a business and occupation tax or
privilege tax by a municipality in accordance with the provisions
of section five, article thirteen, chapter eight of this code.
(c) Nothing in article fourteen-a, chapter eleven of this
code, which establishes a motor carrier road tax, shall apply to
any motor carrier operated or caused to be operated on any
qualified transportation facility.
§17-27-18. Construction.
The provisions of this article are remedial and shall be
liberally construed and applied so as to promote the purposes set
out in section one of this article.
On motion of Senator Chafin, the following amendment to the
Finance committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4476) was reported by the Clerk:
On page eleven, section five, subsection (e), subdivision (4),
after the word "process" by changing the period to a colon and
inserting the following proviso: Provided, however, That the
moneys from the General Revenue Fund may also be used if so
designated and approved by the Legislature.
Following discussion,
The question being on the adoption of Senator Chafin's
amendment to the Finance committee amendment to the bill, the same
was put and prevailed.
The question now being on the adoption of the Finance
committee amendment to the bill (Eng. Com. Sub. for H. B. No.
4476), as amended.
Following extended discussion and a point of inquiry to the
President, with resultant response thereto,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of the Finance committee amendment to the bill, as
amended, and on this question, Senator Unger demanded the yeas and
nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin,
Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Wells, White and Tomblin
(Mr. President)--25.
The nays were: Barnes, Boley, Caruth, Guills, Hunter, Sypolt,
Unger and Yoder--8.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared the Finance committee amendment
to the bill (Eng. Com. Sub. for H. B. No. 4476), as amended,
adopted.
The bill, as amended, was then ordered to third reading.
At the request of Senator Bowman, and by unanimous consent,
Senator Bowman addressed the Senate regarding the merits of
Engrossed Committee Substitute for House Bill No. 4476.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4484, Relating to the
criminal offense of stalking.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4484) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 4484) was then read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully and repeatedly follows another
knowing or having reason to know that the conduct causes the person
followed to reasonably fear for his or her safety or suffer
significant emotional distress. and harasses a person with whom he
or she has or in the past has had or with whom he or she seeks to
establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney, is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county or
regional jail for not more than six months or fined not more than
one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and makes
a credible threat against a person with whom he or she has or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not the intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney with the intent to place or
placing him or her in reasonable apprehension that he or she or a
member of his or her immediate family will suffer death, sexual
assault, kidnaping, bodily injury or battery is guilty of a
misdemeanor and, upon conviction thereof, shall be incarcerated in
the county or regional jail for not more than six months or fined
not more than one thousand dollars, or both.
(b) (c) Any person who repeatedly harasses or repeatedly makes
credible threats against another a person with whom he or she has,
or in the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not the intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or
regional jail for not more than six months or fined not more than
one thousand dollars, or both.
(c) (d) Notwithstanding any provision of this code to the
contrary, any person who violates the provisions of subsection (a),
or (b) or (c) of this section in violation of an order entered by
a circuit court, magistrate court or family law master, in effect
and entered pursuant to part 48-5-501, et seq., part 48-5-601, et
seq. or 48-27-403 of this code is guilty of a misdemeanor and, upon
conviction thereof, shall be incarcerated in the county jail for
not less than ninety days nor more than one year or fined not less
than two thousand dollars nor more than five thousand dollars, or
both.
(d) (e) A second or subsequent conviction for a violation of
this section occurring within five years of a prior conviction is
a felony punishable by incarceration in a state correctional
facility for not less than one year nor more than five years or
fined not less than three thousand dollars nor more than ten
thousand dollars, or both.
(e) (f) Notwithstanding any provision of this code to the
contrary, any person against whom a protective order is in effect
pursuant to the provisions of §48-27-403 of this code who has been
served with a copy of said order or a final order protection
entered pursuant to the provisions of §48-5-601 48-27-501 of this
code who is convicted of a violation of the provisions of this section shall be guilty of a felony and punishable by incarceration
in a state correctional facility for not less than one year nor
more than five years or fined not less than three thousand dollars
nor more than ten thousand dollars, or both.
(g) For the purposes of this section:
(1) "Harasses" means willful conduct directed at a specific
person or persons which would cause a reasonable person mental
injury or emotional distress; "Bodily injury" means substantial
physical pain, illness or any impairment of physical condition;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the
result that a reasonable person would believe that the threat could
be carried out; and
(3) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and "Harasses" means
willful conduct directed at a specific person or persons which
would cause a reasonable person mental injury or emotional distress
(4) "Immediate family" means a spouse, parent, stepparent,
mother-in-law, father-in-law, child, stepchild, sibling, or any
person who regularly resides in the household or within the prior
six months regularly resided in the household.
(5) "Repeatedly" means on two or more occasions.
(h) Nothing in this section shall be construed to prevent
lawful assembly and petition for the redress of grievances,
including, but not limited to: Any labor dispute or employment
relations issue; demonstration at the seat of federal, state, county or municipal government; activities protected by the West
Virginia constitution or the United States Constitution or any
statute of this state or the United States.
(i) (g) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended is to have
as a condition of probation or suspension of sentence that he or
she participate in counseling or medical treatment as directed by
the court.
(j) (h) Upon conviction, the court may issue an order
restraining the defendant from any contact with the victim for a
period not to exceed ten years. The length of any restraining order
shall be based upon the seriousness of the violation before the
court, the probability of future violations, and the safety of the
victim or his or her immediate family. The duration of the
restraining order may be longer than five years only in cases when
a longer duration is necessary to protect the safety of the victim
or his or her immediate family.
(k) (i) It is a condition of bond for any person accused of
the offense described in this section that the person is to have no
contact, direct or indirect, verbal or physical, with the alleged
victim.
(l) (j) Nothing in this section may be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative sentence.
(k) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor,
licensed domestic violence programs and rape crisis centers which
meet the standards required by the W. Va. Foundation for Rape
Information and Services, shall promulgate rules for state, county,
and municipal law-enforcement officers and agencies with regard to
enforcement of this section.
On motion of Senator Barnes, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4484) was reported by the Clerk and adopted:
On page four, section nine-a, subsection (e), subdivision (5),
after the words "petition for the" by inserting the word "lawful".
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4484) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4484) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4588, Relating to public
school support.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4588) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the
Code of West Virginia, 1931, as amended, be repealed; that §18-1-1
of said code be amended and reenacted; that §18-9A-2, §18-9A-3a,
§18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9,
§18-9A-10 and §18-9A-21 of said code be amended and reenacted; and
that §18-20-5 of said code be amended and reenacted, all to read as
follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS
FOR
EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any
proceedings pursuant thereto have the meanings ascribed to them
unless the context clearly indicates a different meaning:
(a) "School" means the students and teachers assembled in one
or more buildings, organized as a unit;
(b) "District" means county school district;
(c) "State board" means the West Virginia Board of Education;
(d) "County board" or "board" means a county board of
education;
(e) "State superintendent" means the State Superintendent of
Free Schools;
(f) "County superintendent" or "superintendent" means a county
superintendent of schools;
(g) "Teacher" means a teacher, supervisor, principal,
superintendent, or public school librarian registered professional nurse, licensed by the West Virginia Board of Examiners for
Registered Professional Nurses and employed by a county board, who
has a baccalaureate degree; or any other person regularly employed
for instructional purposes in a public school in this state;
(h) "Service person" or "service personnel," whether singular
or plural, means any non-teaching school employee who is not
included in the meaning of "teacher" as defined in this section,
and who serves the school or schools as a whole, in a
nonprofessional capacity, including such areas as secretarial,
custodial, maintenance, transportation, school lunch and aides.
Any reference to "service employee" or "service employees" in this
chapter or chapter eighteen-a of this code means service person or
service personnel as defined in this section;
(i) "Social worker" means a nonteaching school employee who,
at a minimum, possesses an undergraduate degree in social work from
an accredited institution of higher learning and who provides
various professional social work services, activities or methods as
defined by the State Board for the benefit of students;
(j) "Regular full-time employee" means any person employed by
a county board who has a regular position or job throughout his or
her employment term, without regard to hours or method of pay;
(k) "Career clusters" means broad groupings of related
occupations;
(l) "Work-based learning" means a structured activity that
correlates with and is mutually supportive of the school-based
learning of the student and includes specific objectives to be learned by the student as a result of the activity;
(m) "School-age juvenile" means any individual who is entitled
to attend or who, if not placed in a residential facility, would be
entitled to attend public schools in accordance with: (1) Section
five, article two of this chapter; (2) sections fifteen and
eighteen, article five of this chapter; or (3) section one, article
twenty of this chapter;
(n) "Student with a disability" means an exceptional child,
other than gifted, pursuant to section one, article twenty of this
chapter;
(o) "Low-density county" means a county whose ratio of student
population to square miles is less than or equal to the state
average ratio as computed by the State Department of Education;
(p) "High-density county" means a county whose ratio of
student population to square miles is greater than the state
average ratio as computed by the State Department of Education; and
(q) (o) "Casual deficit" means a deficit of not more than
three percent of the approved levy estimate or a deficit that is
nonrecurring from year to year.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2. Definitions.
For the purpose of this article:
(a) "State board" means the West Virginia Board of Education.
(b) "County board" or "board" means a county board of
education.
(c) "Professional salaries" means the state legally mandated salaries of the professional educators as provided in article four,
chapter eighteen-a of this code.
(d) "Professional educator" shall be synonymous with and shall
have the same meaning as "teacher" as defined in section one,
article one of this chapter, and includes technology integration
specialists.
(e) "Professional instructional personnel" means a
professional educator whose regular duty is as that of a classroom
teacher, librarian, counselor, attendance director, or school
psychologist or school nurse with a bachelor's degree and who is
licensed by the West Virginia Board of Examiners for Registered
Professional Nurses. A professional educator having both
instructional and administrative or other duties shall be included
as professional instructional personnel for that ratio of the
school day for which he or she is assigned and serves on a regular
full-time basis in appropriate instruction, library, counseling,
attendance, or psychologist or nursing duties.
(f) "Professional student support personnel" means a
"professional person" as those terms are defined in section one,
article one, chapter eighteen-a of this code who is assigned and
serves on a regular full-time basis as a counselor or as a school
nurse with a bachelor's degree and who is licensed by the West
Virginia Board of Examiners for Registered Professional Nurses.
(f) (g) "Service personnel salaries" means the state legally
mandated salaries for service personnel as provided in section
eight-a, article four, chapter eighteen-a of this code.
(g) (h) "Service personnel" means all personnel as provided in
section eight, article four, chapter eighteen-a of this code. For
the purpose of computations under this article of ratios of service
personnel to adjusted enrollment net enrollment, a service employee
shall be counted as that number found by dividing his or her number
of employment days in a fiscal year by two hundred: Provided, That
the computation for any service person employed for three and
one-half hours or less per day as provided in section eight-a,
article four, chapter eighteen-a of this code shall be calculated
as one-half an employment day.
(h) (i) "Net enrollment" means the number of pupils enrolled
in special education programs, kindergarten programs and grades one
to twelve, inclusive, of the public schools of the county.
Commencing with the school year beginning on the first day of July,
one thousand nine hundred eighty-eight, Net enrollment further
shall include:
(1) Adults enrolled in regular secondary vocational programs
existing as of the effective date of this section, subject to the
following:
(1) (A) Net enrollment includes no more than one thousand of
those adults counted on the basis of full-time equivalency and
apportioned annually to each county in proportion to the adults
participating in regular secondary vocational programs in the prior
year counted on the basis of full-time equivalency; and
(2) (B) Net enrollment does not include any adult charged
tuition or special fees beyond that required of the regular secondary vocational student;
(2) Students enrolled in early childhood education programs as
provided in section forty-four, article five of this chapter,
counted on the basis of full-time equivalency;
(3) No pupil shall be counted more than once by reason of
transfer within the county or from another county within the state,
and no pupil shall be counted who attends school in this state from
another state;
(4) The enrollment shall be modified to the equivalent of the
instructional term and in accordance with the eligibility
requirements and rules established by the state board; and
(5) For any county whose net enrollment as determined under
all other provisions of this definition is less than one thousand
four hundred, the net enrollment of the county shall be increased
by an amount to be determined in accordance with the following:
(A) Divide the state's lowest county student population
density by the county's actual student population density;
(B) Multiply the amount derived from the calculation in
paragraph (A) of this subdivision by three hundred;
(C) If the increase in net enrollment as determined under this
subdivision plus the county's net enrollment as determined under
all other provisions of this subsection is greater than one
thousand four hundred, the increase in net enrollment shall be
reduced so that the total does not exceed one thousand four
hundred; and
(D) During the two thousand eight - two thousand nine interim period and every three interim periods thereafter, the Legislative
Oversight Commission on Education Accountability shall review the
provisions of this subdivision to determine whether or not they
properly address the needs of counties with low enrollment and a
sparse population density.
(i) "Adjusted enrollment" means the net enrollment plus twice
the number of pupils enrolled for special education, including
gifted pupils in grades one through eight and exceptional gifted
pupils in grades nine through twelve, plus the number of pupils in
grades nine through twelve enrolled for honors and advanced
placement programs, subject to the following:
(1) No more than four percent of net enrollment of grades one
through eight may be counted as enrolled in gifted education and no
more than six percent of net enrollment of grades nine through
twelve may be counted as enrolled in gifted education, exceptional
gifted education (subject to the limitation set forth in section
one, article twenty of this chapter) and honors and advanced
placement programs for the purpose of determining adjusted
enrollment within a county;
(2) Nothing herein shall be construed to limit the number of
students who may actually enroll in gifted, exceptional gifted,
honors or advanced placement education programs in any county;
(3) No pupil may be counted more than three times for the
purpose of determining adjusted enrollment;
(4) The enrollment shall be adjusted to the equivalent of the
instructional term and in accordance with the eligibility requirements and rules established by the state board; and
(5) No pupil shall be counted more than once by reason of
transfer within the county or from another county within the state,
and no pupil shall be counted who attends school in this state from
another state.
(j) "Sparse-density county" means a county whose ratio of net
enrollment, excluding any increase in the net enrollment of
counties pursuant to subdivision (5) of the definition of net
enrollment, to the square miles of the county is less than five.
(k) "Low-density county" means a county whose ratio of net
enrollment, excluding any increase in the net enrollment of
counties pursuant to subdivision (5) of the definition of net
enrollment, to the square miles of the county is equal to or
greater than five but less than ten.
(l) "Medium-density county" means a county whose ratio of net
enrollment, excluding any increase in the net enrollment of
counties pursuant to subdivision (5) of the definition of net
enrollment, to the square miles of the county is equal to or
greater than ten but less than twenty.
(m) "High-density county" means a county whose ratio of net
enrollment, excluding any increase in the net enrollment of
counties pursuant to subdivision (5) of the definition of net
enrollment, to the square miles of the county is equal to or
greater than twenty.
(j) (n) "Levies for general current expense purposes" means
ninety-four percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of
section six-f, article eight, chapter eleven of this code:
Provided, That beginning the first day of July, two thousand eight,
"levies for general current expense purposes" means ninety percent
of the levy rate for county boards of education calculated or set
by the Legislature pursuant to the provisions of section six-f,
article eight, chapter eleven of this code: Provided, however,
That effective the first day of July, two thousand ten, the
definitions set forth in this subsection are subject to the
provisions of section two-a of this article.
(o) "Technology integration specialist" means a professional
educator who has expertise in the technology field and is assigned
as a resource teacher to provide information and guidance to
classroom teachers on the integration of technology into the
curriculum.
(p) "State aid eligible personnel" means all professional
educators and service personnel employed by a county board in
positions that are eligible to be funded under this article and
whose salaries are not funded by a specific funding source such as
a federal or state grant, donation, contribution or other specific
funding source not listed.
§18-9A-3a. Total state basic foundation program for fiscal years
2009 through 2013, only.
(a) Notwithstanding any other provisions of this article to
the contrary, the total basic foundation program for the state for
the fiscal year one thousand nine hundred ninety-four--ninety-five years two thousand nine through two thousand thirteen shall be the
sum of the amounts computed for each county in accordance with this
section, less the county's local share:
(1) For the fiscal year two thousand nine, the department of
education shall compute the total basic foundation program for each
county in accordance with the provisions of this article and in
accordance with the provisions of this article in effect for fiscal
year two thousand eight. The total basic foundation program for
each county computed in accordance with this article is limited to
a growth of one fifth above the amount computed for the county in
accordance with the provisions in effect for fiscal year two
thousand eight. The total basic foundation program for the county
is the greater of the two computations.
(2) For the fiscal year two thousand ten, the department of
education shall compute the total basic foundation program for each
county in accordance with the provisions of this article and in
accordance with the provisions of this article in effect for fiscal
year two thousand eight. The total basic foundation program for
each county computed in accordance with this article is limited to
a growth of two fifths above the amount computed for the county in
accordance with the provisions in effect for fiscal year two
thousand eight. The total basic foundation program for the county
is the greater of the two computations.
(3) For the fiscal year two thousand eleven, the department of
education shall compute the total basic foundation program for each
county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal
year two thousand eight. The total basic foundation program for
each county computed in accordance with this article is limited to
a growth of three fifths above the amount computed for the county
in accordance with the provisions in effect for fiscal year two
thousand eight. The total basic foundation program for the county
is the greater of the two computations.
(4) For the fiscal year two thousand twelve, the department of
education shall compute the total basic foundation program for each
county in accordance with the provisions of this article and in
accordance with the provisions of this article in effect for fiscal
year two thousand eight. The total basic foundation program for
each county computed in accordance with this article is limited to
a growth of four fifths above the amount computed for the county in
accordance with the provisions in effect for fiscal year two
thousand eight. The total basic foundation program for the county
is the greater of the two computations.
(5) For the fiscal year two thousand thirteen and each year
thereafter, the department of education shall compute the total
basic foundation program for each county in accordance with the
provisions of this article and in accordance with the provisions of
this article in effect for fiscal year two thousand eight. For the
fiscal year two thousand thirteen only, the total basic foundation
program for the county is the greater of the two computations.
Allowance for professional educators as determined in
accordance with sections four and five-a of this article;
(2) Allowance for service personnel as determined in
accordance with sections five and five-a of this article;
(3) Allowance for fixed charges as determined in accordance
with the provisions of sections six and six-a of this article;
(4) Allowance for transportation cost in an amount at least
equal to the appropriation for such allowance in the fiscal year
one thousand nine hundred ninety-three--ninety-four;
(5) Allowance for administrative cost in accordance with the
provisions of sections eight and eight-a of this article;
(6) Allowance for other current expense and substitute
employees in an amount at least equal to the appropriation for such
allowance in the fiscal year one thousand nine hundred ninety-
three--ninety-four: Provided, That the allocation of such funds
for expenditure by faculty senates shall be in accordance with the
provisions of section nine of this article;
(7) Allowance to improve instructional programs in an amount
at least equal to the appropriation for such allowance in the
fiscal year one thousand nine hundred ninety-three--ninety-four.
§18-9A-4. Foundation allowance for professional educators.
(a) The basic foundation allowance to the county for
professional educators shall be the amount of money required to pay
the state minimum salaries, in accordance with provisions of
article four, chapter eighteen-a of this code, to the personnel
employed, subject to the following: Provided, That in making this
computation no county shall receive an allowance for the personnel
which number is in excess of educators fifty-three and one-half professional educators to each one thousand students in adjusted
enrollment;
(1) Subject to subdivision (2) of this subsection, in making
this computation no county shall receive an allowance for the
personnel which number is in excess of professional educators to
each one thousand students in net enrollment as follows:
(A) For each high-density county, the number of personnel for
which a county shall receive the allowance shall not exceed
seventy-two and one tenth professional educators per each one
thousand students in net enrollment;
(B) For each medium-density county, the number of personnel
for which a county shall receive the allowance shall not exceed
seventy-two and twenty-five one hundredths professional educators
per each one thousand students in net enrollment;
(C) For each low-density county, the number of personnel for
which a county shall receive the allowance shall not exceed
seventy-two and four tenths professional educators per each one
thousand students in net enrollment; and
(D) For each sparse-density county, the number of personnel
for which a county shall receive the allowance shall not exceed
seventy-two and fifty-five one hundredths professional educators
per each one thousand students in net enrollment;
Provided, however, That any county not qualifying under the
provisions of section fourteen of this article is eligible for a
growth rate in professional personnel in any one year not to exceed
twenty percent of its total potential increase under this provision, except that in no case shall the limit be fewer than
five professionals; Provided further, That
(2) For the ratios applicable to each of the four density
categories set forth in subdivision (1) of this subsection, the
number of professional educators per each one thousand students in
net enrollment increases by five one hundredths per year for each
of fiscal years two thousand ten, two thousand eleven, two thousand
twelve and two thousand thirteen. For each fiscal year thereafter,
the ratios remain at the two thousand thirteen level.
(3) The number of and the allowance for personnel paid in part
by state and county funds shall be prorated; and And provided
further, That
(4) Where two or more counties join together in support of a
vocational or comprehensive high school or any other program or
service, the professional educators for the school or program may
be prorated among the participating counties on the basis of each
one's enrollment therein and that the personnel shall be considered
within the above-stated limit. And provided further, That in the
school year beginning the first day of July, one thousand nine
hundred eighty-eight, and in each school year thereafter,
(b) Subject to subsection (c) of this section, each county
board shall establish and maintain a minimum ratio of fifty
professional instructional personnel per one thousand students in
adjusted net enrollment as follows:
(1) For each high-density county, the minimum number of
professional instructional personnel per one thousand students in net enrollment is sixty-five and eight tenths;
(2) For each medium-density county, the minimum number of
professional instructional personnel per one thousand students in
net enrollment is sixty-five and nine tenths;
(3) For each low-density county, the minimum number of
professional instructional personnel per one thousand students in
net enrollment is sixty-six;
(4) For each sparse-density county, the minimum number of
professional instructional personnel per one thousand students in
net enrollment is sixty-six and five one hundredths. And provided
further, That no permanent substitute shall be included in the
minimum ratio for professional instructional personnel. Permanent
substitutes may be included in the computation for professional
educators. For the purposes of this section, permanent substitute
means a full-time employee who performs the duties of a day-to-day
substitute. And provided further, That no county shall have less
than a total of five principals and central office administrators.
(c) For the ratios applicable to each of the four density
categories set forth in subsection (b) of this subsection, the
number of professional instructional personnel per each one
thousand students in net enrollment increases by five one
hundredths per year for each of fiscal years two thousand ten, two
thousand eleven, two thousand twelve and two thousand thirteen.
For each fiscal year thereafter, the ratios remain at the two
thousand thirteen level.
(d) Any county board which does not establish and maintain this the applicable minimum ratio required in subsection (b) of
this section shall suffer a pro rata reduction in the allowance for
professional educators under this section: And provided further,
Provided, That no county shall be penalized if it has increases in
enrollment during that school year: Provided, however, That for the
school year two thousand eight - two thousand nine, only, no county
shall be penalized for not meeting the applicable minimum ratio
required in subsection (b) of this section. And provided further,
That Any county board which does not establish and maintain this
minimum ratio shall utilize any and all allocations to it by
provision of section fourteen of this article solely to employ
professional instructional personnel until the minimum ratio is
attained. Every county shall utilize methods other than reductions
in force, such as attrition and early retirement, before
implementing their reductions in force policy to comply with the
limitations of this section. It is the intent of the Legislature
that in planning reductions in force to comply with reduced ratios
of professional educators to students in adjusted enrollment,
county boards shall consider positions for elimination in the
following order: (1) Central office administrators, (2) assistant
principals, and (3) principals.
(e) No county shall increase the number of administrative
personnel employed as either professional educators or pay grade
"H" service personnel above the number which were employed, or for
which positions were posted, on the thirtieth day of June, one
thousand nine hundred ninety, and, therefore, county boards shall whenever possible utilize classroom teachers for curriculum
administrative positions through the use of modified or extended
contracts. Provided, That the governor shall submit a
recommendation to the Legislature at the beginning of the regular
session thereof in the year one thousand nine hundred ninety-one,
which proposes a method for establishing a responsible level of
administrative support for each county school system and a pay
scale differentiation on a daily rate between classroom positions
and administrative positions when all other factors are equal.
(f) As the number of professional educators per each one
thousand students in net enrollment increases during fiscal years
two thousand nine through two thousand thirteen, any additional
positions that are created as a result of that increase shall be
positions that will enhance student achievement and are consistent
with the needs as identified in each county board's electronic
county strategic improvement plan. County boards are encouraged to
fill at least some of the additional positions with technology
integration specialists.
(g) During the two thousand eight - two thousand nine interim
period, and every three interim periods thereafter, the Legislative
Oversight Commission on Education Accountability shall review the
four density categories created in section two of this article, the
ratios for professional educators established in this section and
the ratios for service personnel established in section five of
this article.
§18-9A-5. Foundation allowance for service personnel.
(a) The basic foundation allowance to the county for service
personnel shall be the amount of money required to pay the annual
state minimum salaries in accordance with the provisions of article
four, chapter eighteen-a of this code, to such service personnel
employed, subject to the following: Provided, That no county shall
receive an allowance for an amount in excess of thirty-four service
personnel per one thousand students in adjusted enrollment:
Provided, however, That the state superintendent of schools is
authorized in accordance with rules and regulations established by
the state board and upon request of a county superintendent to
waive the maximum ratio of thirty-four service personnel per one
thousand students in adjusted enrollment and the twenty percent per
year growth cap provided in this section, to the extent
appropriations are provided, in those cases where the state
superintendent determines that student population density and miles
of bus route driven or the transportation of students to a county
or a multi-county vocational-technical center justify the waiver,
except that no waiver shall be granted to any county whose
financial statement shows a net balance in general current expense
funds greater than three percent at the end of the previous fiscal
year: Provided further, That on or before the first day of each
regular session of the Legislature, the state board, through the
state superintendent, shall make to the Legislature a full report
concerning the number of waivers granted and the fiscal impact
related thereto. Every county shall utilize methods other than
reduction in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the
limitations of this section.
For any county which has in excess of thirty-four service
personnel per one thousand students in adjusted enrollment, the
allowance shall be computed based upon the average state minimum
pay scale salary of all service personnel in the county: Provided,
That for any county having fewer than thirty-four service personnel
per one thousand students in adjusted enrollment, in any one year,
the number of service personnel used in making this computation may
be increased the succeeding years by no more than twenty percent
per year of its total potential increase under this provision,
except that in no case shall the limit be fewer than two service
personnel until the county attains the maximum ratio set forth:
Provided, however, That
(1) For the school year beginning on the first day of July,
two thousand eight, and thereafter, no county shall receive an
allowance for an amount in excess of service personnel per one
thousand students in net enrollment, as follows:
(A) For each high-density county, the number of personnel for
which a county shall receive the allowance shall not exceed forty-
three and ninety-seven one hundredths service personnel per one
thousand students in net enrollment;
(B) For each medium-density county, the number of personnel
for which a county shall receive the allowance shall not exceed
forty-four and fifty-three one hundredths service personnel per one
thousand students in net enrollment;
(C) For each low-density county, the number of personnel for
which a county shall receive the allowance shall not exceed forty-
five and one tenth service personnel per one thousand students in
net enrollment; and
(D) For each sparse-density county, the number of personnel
for which a county shall receive the allowance shall not exceed
forty-five and sixty-eight one hundredths service personnel per one
thousand students in net enrollment: and
(2) Where two or more counties join together in support of a
vocational or comprehensive high school or any other program or
service, the service personnel for the school or program may be
prorated among the participating counties on the basis of each
one's enrollment therein and that the personnel shall be considered
within the above-stated limit.
§18-9A-6. Foundation allowance for fixed charges.
The total allowance for fixed charges shall be the sum of the
following:
(1) The sum of the foundation allowance for professional
educators and the foundation allowance for other personnel, as
determined in sections four and five above four, five and eight of
this article, multiplied by the current social security rate of
contribution; plus
(2) The sum of the foundation allowance for professional
educators and the foundation allowance for other personnel, as
determined in sections four and five above four, five and eight of
this article, multiplied by four hundredths of one percent as an allowance for unemployment compensation contribution; plus
(3) The sum of the foundation allowance for professional
educators and the foundation allowance for other personnel, as
determined in sections four and five above four, five and eight of
this article, multiplied by the rate which is derived by dividing
the total estimated contributions for workers' compensation for all
county boards by the sum of the foundation allowance for
professional educators and other personnel, as determined in
sections four and five above four, five and eight of this article.
The total estimated contribution for workers compensation is
determined by multiplying each county board's allowance for
professional educators and other personnel, as determined by
sections four and five above four, five and eight of this article,
by the county's actual contribution rate by using data of the most
recent year for which it is available; plus
(4) The teachers retirement fund allowance as determined in
section six-a of this article.
18-9A-7. Foundation allowance for transportation cost.
(a) The allowance in the foundation school program for each
county for transportation shall be the sum of the following
computations:
(1) Eighty-five percent of the transportation cost within each
high-density county and ninety percent of the transportation cost
within each low-density county for maintenance, operation and
related costs, exclusive of all salaries: Provided, That
(1) A percentage of the transportation costs incurred by the county for maintenance, operation and related costs exclusive of
all salaries, including the costs incurred for contracted
transportation services and public utility transportation, as
follows:
(A) For each high-density county, eighty-seven and one half
percent;
(B) For each medium-density county, ninety percent;
(C) For each low-density county, ninety-two and one half
percent;
(D) For each sparse-density county, ninety-five percent;
(E) For any county for the transportation cost for
maintenance, operation and related costs, exclusive of all
salaries, for transporting students to and from classes at a multi-
county vocational center, the percentage provided in paragraphs (A)
through (D) of this subdivision as applicable for the county plus
an additional ten percent; and
(F) For any county for that portion of its school bus system
that uses an alternative fuel such as compressed natural gas or
other acceptable alternative fuel, the percentage provided in
paragraphs (A) through (D) of this subdivision as applicable for
the county plus an additional ten percent: for the operation of
all or any portion of its school bus system, the allowance in the
foundation school program for the county for that portion of its
school bus system shall be ninety-five percent of the
transportation cost for maintenance, operation and related costs,
exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an
alternative fuel and qualifying for the additional allowance under
this subdivision shall submit a plan regarding the intended future
use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums
on buses, buildings and equipment used in transportation; Provided,
That the premiums were procured through competitive bidding;
(3) An amount equal to eight and one-third percent of the
current replacement value of the bus fleet within each county as
determined by the state board. The amount shall only be used for
the replacement of buses. Buses purchased after the first day of
July, one thousand nine hundred ninety-nine, that are driven one
hundred eighty thousand miles, regardless of year model, will be
subject to the replacement value of eight and one-third percent as
determined by the state board. Provided, That for the school year
beginning on the first day of July, two thousand four, only, the
allowance in the foundation school program for each county for
transportation shall not include an amount for the replacement of
buses. In addition, in any school year in which its net enrollment
increases when compared to the net enrollment the year immediately
preceding, a school district may apply to the state superintendent
for funding for an additional bus or buses. The state
superintendent shall make a decision regarding each application
based upon an analysis of the individual school district's net
enrollment history and transportation needs: Provided, however,
That the superintendent shall not consider any application which fails to document that the county has applied for federal funding
for additional buses. If the state superintendent finds that a
need exists, a request for funding shall be included in the budget
request submitted by the state board for the upcoming fiscal year;
and
(4) Eighty-five percent of the cost of contracted
transportation services and public utility transportation within
each high-density county and ninety percent of the cost of
contracted transportation services and public utility
transportation within each low-density county;
(5) (4) Aid in lieu of transportation equal to the state
average amount per pupil for each pupil receiving the aid within
each county. and
(6) Ninety-five percent of the transportation cost for
maintenance, operation and related costs, exclusive of all
salaries, for transporting students to and from classes at a
multicounty vocational center.
(b) The total state share for this purpose shall be the sum of
the county shares: Provided, That no county shall receive an
allowance which is greater than one-third above the computed state
average allowance per transportation mile multiplied by the total
transportation mileage in the county exclusive of the allowance for
the purchase additional buses. Provided, however, That
(c) One half of one percent of the transportation allowance
distributed to each county shall be for the purpose of trips
related to academic classroom curriculum and not related to any extracurricular activity. Provided further, That for the school
year beginning on the first day of July, two thousand four, only
the transportation allowance of each county shall include an
allocation for the purpose of trips related to academic classroom
curriculum and not related to any extracurricular activity. The
allocation shall equal the amount distributed to the county for
this purpose in the school year beginning on the first day of July,
two thousand three: And Provided further, That Any remaining funds
credited to a county for the purpose of trips related to academic
classroom curriculum during the fiscal year shall be carried over
for use in the same manner the next fiscal year and shall be
separate and apart from, and in addition to, the appropriation for
the next fiscal year. And Provided further, That The state board
may request a county to document the use of funds for trips related
to academic classroom curriculum if the board determines that it is
necessary.
(d) The amendments made to this section during the two
thousand eight regular session of the Legislature are intended to
be temporary while the transportation issue is further studied
during the two thousand eight-two thousand nine interim period.
§18-9A-8. Foundation allowance for professional student support
services.
(a) The basic foundation allowance to the county for
professional student support personnel shall be the amount of money
determined in accordance with the following:
(1) The sum of the state minimum salaries, as determined in accordance with the provisions of article four, chapter eighteen of
this code, for all state aid eligible school nurse and counselor
positions in the county during the two thousand eight fiscal year
which number shall be reduced in the same proportion as the number
of professional educators allowed to be funded under section four
of this article to the total number of professional educators
employed that are state aid eligible. In performing this
calculation, the numerator shall be the number of professional
educators actually funded under section four of this article and
the denominator shall be the total number of professional educators
employed that are eligible to be funded under section four of this
article;
(2) The amount derived from the calculation in subdivision (1)
of this subsection is increased by one half percent;
(3) The amount derived from the calculation in subdivision (2)
of this subsection is the basic foundation allowance to the county
for professional student support personnel for the two thousand
nine fiscal year;
(4) For fiscal years two thousand ten, two thousand eleven,
two thousand twelve and two thousand thirteen, the basic foundation
allowance to the county for professional student support personnel
increases by one-half percent per year over the allowance for the
previous year; and
(5) For all fiscal years thereafter, the basic foundation
allowance to the county for professional student support personnel
remains the same amount as in the two thousand thirteen fiscal year.
(b) The additional positions for counselors that may be
created as a result of the one percent increase provided pursuant
to this section shall be assigned to schools where the counselor
can:
(1) Enhance student achievement;
(2) Provide early intervention for students in grades pre-
kindergarten through five; and
(3) Enhance student development and career readiness.
§18-9A-9. Foundation allowance for other current expense and
substitute employees.
The total allowance for other current expense and substitute
employees shall be the sum of the following: Provided, That each
of the three amounts set forth in subdivisions (1), (2) and (3) of
this section shall not exceed the preceding year's allowance by
more than four percent:
(1) For current expense, for the year one thousand nine
hundred ninety--ninety-one and thereafter, ten percent of the sum
of the computed state allocation for professional educators and
service personnel as determined in sections four and five of this
article. Distribution to the counties shall be made proportional
to the average of each county's average daily attendance for the
preceding year and the county's second month net enrollment; plus
(2) For professional educator substitutes or current expense,
two and five-tenths percent of the computed state allocation for
professional educators as determined in section four and other professional personnel as determined in sections four and eight of
this article. Distribution to the counties shall be made
proportional to the number of professional educators and other
professional personnel authorized for the county in compliance with
sections four and five-a eight of this article; plus
(3) For service personnel substitutes or current expense, two
and five-tenths percent of the computed state allocation for
service personnel as determined in section five of this article.
Distribution to the counties shall be made proportional to the
number of service personnel authorized for the county in compliance
with sections section five and five-a of this article; plus
(4) For academic materials, supplies and equipment for use in
instructional programs, two hundred dollars multiplied by the
number of professional instructional personnel employed in the
schools of the county. Distribution shall be made to each county
for allocation to the faculty senate of each school in the county
on the basis of two hundred dollars per professional instructional
personnel employed at the school. Faculty senate means a faculty
senate created pursuant to section five, article five-a of this
chapter. Decisions for the expenditure of such funds shall be made
at the school level by the faculty senate in accordance with the
provisions of said section five, article five-a and shall not be
used to supplant the current expense expenditures of the county.
Beginning on the first day of September, one thousand nine hundred
ninety-four, and every September thereafter, county boards shall
forward to each school for the use by faculty senates the appropriation specified in this section. Each school shall be
responsible for keeping accurate records of expenditures.
§18-9A-10. Foundation allowance to improve instructional programs.
(a) The total allowance to improve instructional programs
shall be the sum of the following:
(1) For instructional improvement in accordance with county
and school electronic strategic improvement plans required by
section five, article two-e of this chapter, an amount equal to
fifteen percent of the increase in the local share amount for the
next school year above any required allocation pursuant to section
six-b of this article shall be added to the amount of the
appropriation for this purpose for the immediately preceding school
year. The sum of these amounts shall be distributed to the
counties as follows:
(A) One hundred fifty thousand dollars shall be allocated to
each county;
(B) Distribution to the counties of the remainder of these
funds shall be made proportional to the average of each county's
average daily attendance for the preceding year and the county's
second month net enrollment. Moneys allocated by provision of this
section shall be used to improve instructional programs according
to the county and school electronic strategic improvement plans
required by section five, article two-e of this chapter and
approved by the state board: Provided, That notwithstanding any
other provision of this code to the contrary, moneys allocated by
provision of this section may also be used in the implementation and maintenance of the uniform integrated regional computer
information system.
Up to twenty-five percent of this allocation may be used to
employ professional educators and service personnel in counties
after all applicable provisions of sections four and five of this
article have been fully utilized.
Prior to the use of any funds from this section for personnel
costs, the county board must receive authorization from the state
superintendent of schools. The state superintendent shall require
the county board to demonstrate: (1) The need for the allocation;
(2) efficiency and fiscal responsibility in staffing; (3) sharing
of services with adjoining counties and the regional educational
service agency for that county in the use of the total local
district board budget; and (4) employment of technology integration
specialists to meet the needs for implementation of the West
Virginia 21st Century Strategic Technology Learning Plan. County
boards shall make application for available funds for the next
fiscal year by the first day of May of each year. On or before the
first day of June, the state superintendent shall review all
applications and notify applying county boards of the distribution
of the allocation. The funds shall be distributed during the
fiscal year appropriate. The state superintendent shall require
the county board to demonstrate the need for an allocation for
personnel based upon the county's inability to meet the
requirements of state law or state board policy: Provided, That
the funds available for personnel under this section may not be used to increase the total number of professional non-instructional
personnel in the central office beyond four. The plan shall be
made available for distribution to the public at the office of each
affected county board; plus
(2) For the purposes of the West Virginia 21st Century
Strategic Technology Learning Plan provided for in section seven,
article two-e of this chapter, an amount equal to fifteen percent
of the increase in the local share amount for the next school year
above any required allocation pursuant to section six-b of this
article shall be added to the amount of the appropriation for this
purpose for the immediately preceding school year. The sum of
these amounts shall be allocated to the counties as provided in
section seven, article two-e of this chapter to meet the objectives
of the West Virginia 21st Century Strategic Technology Learning
Plan; plus
(3) One percent of the state average per pupil state aid
multiplied by the number of students enrolled in dual credit,
advanced placement and international baccalaureate courses, as
defined by the state board, distributed to the counties
proportionate to enrollment in these courses in each county; plus
(3) (4) An amount not less than the amount required to meet
debt service requirements on any revenue bonds issued prior to the
first day of January, one thousand nine hundred ninety-four, and
the debt service requirements on any revenue bonds issued for the
purpose of refunding revenue bonds issued prior to the first day of
January, one thousand nine hundred ninety-four, shall be paid into the School Building Capital Improvements Fund created by section
six, article nine-d of this chapter and shall be used solely for
the purposes of that article. The School Building Capital
Improvements Fund shall not be utilized to meet the debt services
requirement on any revenue bonds or revenue refunding bonds for
which moneys contained within the School Building Debt Service Fund
have been pledged for repayment pursuant to that section.
(b) When the school improvement bonds secured by funds from
the School Building Capital Improvements Fund mature, the State
Board of Education shall annually deposit an amount equal to
twenty-four million dollars from the funds allocated in this
section into the School Construction Fund created pursuant to the
provisions of section six, article nine-d of this chapter to
continue funding school facility construction and improvements.
(c) Any project funded by the School Building Authority shall
be in accordance with a comprehensive educational facility plan
which must be approved by the state board and the School Building
Authority.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be
distributed to county boards for the operation of alternative
education and prevention programs established in accordance with
policies and procedures adopted by the state board under section
six, article two of this chapter. The appropriation shall be an
amount equal to twelve dollars per student in net enrollment,
subject to appropriation by the Legislature. The state board shall distribute ninety-seven percent of the total appropriation to the
county boards proportionate to each county's net enrollment. The
remaining three percent of the appropriation shall be retained by
the state department to support the provision of services to the
county boards in administering programs established in accordance
with policies and procedures adopted by the state board under
section six, article two of this chapter: Provided, That nothing
in this section shall be construed to require any specific level of
funding by the Legislature. Provided, however, That ninety percent
of any appropriation which may be made for the purposes set forth
in this section shall be distributed to county boards on the basis
of net enrollment and ten percent of this appropriation shall be
distributed on a competitive basis to county boards for the
operation of pilot or innovative alternative education programs:
Provided further, That for the fiscal year beginning the first day
of July, two thousand, the total appropriation which may be made
for the purposes set forth in this section shall be distributed to
the county boards on the basis of net enrollment.
(b) Each county board shall apply to the state superintendent
for receipt of its share of the distribution in the manner set
forth by the state superintendent which is consistent with the
policies and procedures adopted by the state board for the
establishment and maintenance of alternative education programs.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-5. Powers and duties of state superintendent.
(a) The state superintendent of schools shall organize, promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in
establishing, organizing and maintaining special schools, classes,
regular class programs, home-teaching and visiting-teacher
services.
(2) Cooperating with all other public and private agencies
engaged in relieving, caring for, curing, educating and
rehabilitating exceptional children, and in helping coordinate the
services of such agencies.
(3)(A) Preparing the necessary rules, policies, formula for
distribution of available appropriated funds, reporting forms and
procedures necessary to define minimum standards in providing
suitable facilities for education of exceptional children and
ensuring the employment, certification and approval of qualified
teachers and therapists subject to approval by the state board of
education: Provided, That no state rule, policy or standard under
this article or any county board rule, policy or standard governing
special education may exceed the requirements of federal law or
regulation.
(B) The state superintendent shall conduct a comprehensive
review and comparison of annually review the rules, policies and
standards of the state with and federal law and report the findings
for serving the needs of exceptional children enrolled in the
public schools and shall report to the legislative oversight
commission on education accountability at its February by the first
day of December or as soon thereafter as requested by the commission, two thousand five eight, and in each year thereafter,
interim meeting or as soon thereafter as requested by the
commission the findings of the review along with an accounting of
the services provided and the costs thereof for exceptional
children enrolled in the public schools of this state during the
latest available school year. An appropriation shall be made to
the department of education to be distributed to county boards to
support children with high acuity needs that exceed the capacity of
county to provide with funds available. Each county board shall
apply to the state superintendent for receipt of this funding in a
manner set forth by the state superintendent that assesses and
takes into account varying acuity levels of the exceptional
students. Any remaining funds at the end of a fiscal year from the
appropriation shall be carried over to the next fiscal year. When
possible, federal funds shall be distributed to county boards for
this purpose before any of the state appropriation is distributed.
The state board shall promulgate a rule in accordance with the
provisions of article three-b, chapter twenty-nine-a of this code
that implements the provisions of this subdivision relating to
distributing the funds to the county boards. The rule at least
shall include a definition for "children with high acuity needs".
(4) Receiving from county boards of education their
applications, annual reports and claims for reimbursement from such
moneys as are appropriated by the Legislature, auditing such claims
and preparing vouchers to reimburse said counties the amounts
reimbursable to them.
(5) Assuring that all exceptional children in the state,
including children in mental health facilities, residential
institutions, private schools and correctional facilities as
provided in section thirteen-f, article two of this chapter receive
an education in accordance with state and federal laws: Provided,
That the state superintendent shall also assure that adults in
correctional facilities and regional jails receive an education to
the extent funds are provided therefor.
(6) Performing other duties and assuming other
responsibilities in connection with this program as needed.
(7) Receive the county plan for integrated classroom submitted
by the county boards of education and submit a state plan, approved
by the state board of education, to the legislative oversight
commission on education accountability no later than the first day
of December, one thousand nine hundred ninety-five.
(b) Nothing contained in this section shall be construed to
prevent any county board of education from establishing and
maintaining special schools, classes, regular class programs,
home-teaching or visiting-teacher services out of funds available
from local revenue.
The bill (Eng. Com. Sub for H. B. No. 4588), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4588) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4588) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4588--A Bill
to repeal
§18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the Code of West
Virginia, 1931, as amended; to amend and reenact §18-1-1 of said
code; to amend and reenact §18-9A-2, §18-9A-3a, §18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9, §18-9A-10 and §18-9A-21 of
said code; and to amend and reenact §18-20-5 of said code all
relating to public school support; defining terms; eliminating
adjusted enrollment and certain waiver provisions; eliminating
obsolete provisions; providing alternate computation of county and
total basic foundation program funding for certain years; limiting
basis of foundation allowances for personnel to ceratin ratios of
net student enrollment instead of adjusted enrollment; establishing
different net enrollment limits on the basis of differences in
students per square mile and expiring existing ratios and funding
provisions; providing for certain adjustments to net enrollment for
allowances in low enrollment counties; requiring review of certain
issues; establishing minimum ratios of professional instructional
personnel per students in net enrollment; providing criteria for
certain new positions; establishing student density categories for
determining allowance for transportation; modifying incentive for
alternative fuel use and allowance for transporting students to
certain multi-county centers; removing obsolete provisions for
certain competitive bidding; deleting allowance for administrative
costs; providing foundation allowance for professional student
support personnel, including fixed charges; including professional
student support personnel costs in determining professional
substitute allowance; placing funding supplement for advanced
placement and dual credit enrollment in allowance to improve
instructional programs; repealing provisions for certain additional
nursing positions; providing enrollment basis for alternative program funding and adding prevention programs; expiring certain
provisions for funding for economies of scale in certain counties;
requiring annual review and report by state superintendent on
exceptional student services and accounting of services and costs;
requiring appropriation for distribution upon application to
support children with high acuity needs that exceed county capacity
from funds available; and requiring rule to implement distribution.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4588) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:59 p.m. today:
Eng. House Bill No. 4557, Relating to continuing education for insurance producers.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum
amount of a medical student loan that may be cancelled.
On second reading, having been reported from the Committee on
Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4433) was taken up
for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.
§18C-3-1. Health Education Loan Program; establishment;
administration; eligibility and loan cancellation;
required report.
(a) For the purposes of this section, "Vice Chancellor of for
Administration" means the person employed pursuant to section two,
article four, chapter eighteen-b of this code.
(b) There is continued a special revolving fund account under
administered by the Commission in the state treasury to be known as
the Health Education Student Loan Fund which shall be used to carry
out the purposes of this section. The fund consists of the
following:
(1) All funds on deposit in the medical student loan fund in
the state treasury or which are due or become due for deposit in
the fund as obligations made under the previous enactment of this
section;
(2) Those funds provided for medical education pursuant to the
provisions of section four, article ten, chapter eighteen-b of this
code;
(3) Appropriations provided by the Legislature;
(4) Repayment of any loans made under this section;
(5) Amounts provided by medical associations, hospitals or
other medical provider organizations in this state, or by political
subdivisions of the state, under an agreement which requires the
recipient to practice his or her health profession in this state or
in the political subdivision providing the funds for a
predetermined period of time and in such capacity as set forth in
the agreement; and
(6) Other amounts which may be available from external
sources.
(c) Balances remaining in the fund at the end of the fiscal
year do not expire or revert. All costs associated with
administering this section shall be paid from the Health Education
Student Loan Fund.
(c) (d) The Vice Chancellor for Administration may utilize any
funds in the Health Education Student Loan Fund for the purposes of
the Medical Student Loan Program. The Commission shall give
priority for the loans to residents of this state, as defined by the Commission. An individual is eligible for loan consideration
if the individual meets the following conditions:
(1) Demonstrates financial need;
(2) Meets established academic standards;
(3) Is enrolled or accepted for enrollment at one of the
aforementioned schools of medicine the West Virginia University
School of Medicine, the Marshall University School of Medicine, or
the West Virginia School of Osteopathic Medicine in a program
leading to the degree of medical doctor (M.D.) or doctor of
osteopathy (D.O.);
(4) The individual Has not yet received one of the degrees
provided in subdivision (3) of this subsection; and
(5) Is not in default of any previous student loan.
(d) (e) At the end of each fiscal year, any individual who has
received a medical student loan and who has rendered services as a
medical doctor or a doctor of osteopathy in this state in a
medically underserved area or in a medical specialty in which there
is a shortage of physicians, as determined by the Division of
Health at the time the loan was granted, may submit to the
Commission a notarized, sworn statement of service on a form
provided for that purpose. Upon receipt of the statement the
Commission shall cancel five ten thousand dollars of the
outstanding loan or loans for every full twelve consecutive
calendar months of such service.
(e) (f) No later than thirty days following the end of each
fiscal year, the Vice Chancellor for Administration shall prepare and submit a report to the Commission for inclusion in the
statewide report card required under section eight, article one-b
one-d, chapter eighteen-b of this code to be submitted to the
Legislative Oversight Commission on Education Accountability
established under section eleven, article three-a, chapter
twenty-nine-a of this code. At a minimum, the report shall include
the following information:
(1) The number of loans awarded;
(2) The total amount of the loans awarded;
(3) The amount of any unexpended moneys in the fund; and
(4) The rate of default during the previous fiscal year on the
repayment of previously awarded loans.
The bill (Eng. Com. Sub. for H. B. No. 4433), as amended, was
then ordered to third reading.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher
education energy and water savings revolving loan fund.
On second reading, having been reported from the Committee on
Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4434) was taken up
for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-11. Energy and Water Savings Revolving Loan Program Fund.
(a) There is created in the state treasury a special revolving
loan fund known as the "Energy and Water Savings Revolving Loan
Fund". The fund is administered by the Commission and used to
effectuate the purposes of this section. The fund consists of
moneys received from the following sources:
(1) All appropriations provided by the Legislature for energy
and water savings revolving loans;
(2) Repayment of loans made to state institutions of higher
education pursuant to this section;
(3) Any moneys available from external sources; and
(4) All interest and other income earned from investment of
moneys in the fund.
(b) The Commission shall utilize moneys in the fund to provide
loans to state institutions of higher education under the
jurisdiction of the Commission or the Council to finance projects
that will achieve significant reductions in campus energy and water
consumption and costs.
(c) The Commission shall propose a rule for legislative
approval in accordance with section six, article one of this
chapter and article three-a, chapter twenty-nine-a of this code to
implement the provisions of this section. The rule shall provide
at least the following:
(1) Project information required in a loan application;
(2) Criteria for evaluating loan applications;
(3) A method for calculating the terms of loan repayment; and
(4) Other provisions the Commission considers necessary to
administer the program in accordance with this section.
(d) Projects shall be considered on a competitive basis.
Highest priority is given to projects guaranteeing the greatest
reductions in energy and water consumption and costs and the
earliest loan repayments.
(e) Any balance, including accrued interest and any other
returns, in the Energy and Water Savings Revolving Loan Fund at the
end of each fiscal year shall not expire to the General Revenue
Fund, but shall remain in the loan fund and be expended for the
purposes provided by this section. The Commission may use up to
four percent of the total loan amount in a fiscal year for
administrative expenses incurred in that fiscal year.
(f) Fund balances may be invested with the state's
consolidated investment fund. Any earnings on the investments
shall be used solely for the purpose defined in subsection (b) of
this section.
(g) The Legislature finds that an emergency exists and,
therefore, the Commission shall propose an emergency rule to
implement the provisions of this section in accordance with section
six, article one of this chapter and article three-a, chapter
twenty-nine-a of this code by the first day of October, two
thousand eight. The emergency rule may not be implemented without
prior approval of the Legislative Oversight Commission on Education Accountability.
The bill (Eng. Com. Sub. for H. B. No. 4434), as amended, was
then ordered to third reading.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the consideration of
Eng. House Bill No. 4449, Allowing the Higher Education Policy
Commission and WV Council for Community and Technical College
Education to enter into lease-purchase agreements.
On second reading, having been reported from the Committee on
Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4449) was taken up for immediate
consideration, read a second time and ordered to third reading.
On motion of Senator Chafin, a leave of absence for the day
was granted Senator Sharpe.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, March 8, 2008, at 11 a.m.
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