WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2008
SIXTIETH DAY
____________
Charleston, W. Va., Saturday, March 8, 2008
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Lee McDermott, First
Presbyterian Church, Logan, West Virginia.
Pending the reading of the Journal of Friday, March 7, 2008,
On motion of Senator Boley, 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.
At the request of Senator Stollings, unanimous consent being
granted, Senator Stollings addressed the Senate regarding Daniel
Hager, a Judith A. Herndon Fellowship Program intern.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Daniel Hager to address the Senate on behalf of
the Judith A. Herndon Fellowship Program, Adam McChesney on behalf
of the Walter Rollins Scholars and Jessica Wintz on behalf of the
Legislative Information Journalism Internship Program.
Upon expiration of the recess, the Senate reconvened.
Thereafter, at the request of Senator Prezioso, and by
unanimous consent, the remarks by Daniel Hager, Adam McChesney and
Jessica Wintz were ordered printed in the Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being
granted, the Senate proceeded to the sixth order of business.
Senators Tomblin (Mr. President), Prezioso, McCabe, Edgell,
Unger, Jenkins and Foster offered the following resolution:
Senate Resolution No. 38--Congratulating Patrick Anthony Reale
on winning the West Virginia Golf Association's 88th State Amateur
Golf Championship.
Whereas, Patrick Anthony Reale, a native of Glenville, West
Virginia, grew up playing golf at the Glenville Golf Club, a
community owned nine-hole public golf course; and
Whereas, Patrick Anthony Reale won his first of two West
Virginia Junior Amateur Golf titles in 1997 at age 12; and
Whereas, Patrick Anthony Reale is the only West Virginia
Junior Grand Slam winner (2003-2004) who won the West Virginia High
School Golf Championship followed by the West Virginia Junior Match
Play Championship and West Virginia Junior Amateur Championship;
and
Whereas, Patrick Anthony Reale plays collegiate golf at East
Carolina University, where he is a second semester senior and has
maintained a perfect 4.0 grade point average; and
Whereas, He and his brother, Philip Reale II, share the East
Carolina school record for lowest single round of play; and
Whereas, Patrick Anthony Reale holds the modern competitive
course record at the refurbished Old White Course at The
Greenbrier, where he shot 66 in the first competitive round played
on the redesigned course in the first round of the 2006 West
Virginia Amateur Golf Championship; and
Whereas, On August 9, 2007, at the end of 72 holes and a
three-hole playoff, Patrick Anthony Reale won the West Virginia
Golf Association's 88th State Amateur Golf Championship at The
Greenbrier Resort in White Sulphur Springs, West Virginia;
therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates Patrick Anthony Reale on
winning the West Virginia Golf Association's 88th State Amateur
Golf Championship; and, be it
Further Resolved, That the Senate hereby extends its
congratulations to Patrick Anthony Reale for all of his
accomplishments on and off the golf course; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Patrick Anthony Reale and his family.
At the request of Senator Chafin, 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 of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Tomblin (Mr. President), McCabe, Foster, Wells,
Sprouse, Unger, Bailey, Barnes, Boley, Bowman, Caruth, Chafin,
Deem, Edgell, Facemyer, Fanning, Green, Guills, Hall, Helmick,
Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sharpe, Stollings, Sypolt, White and Yoder
offered the following resolution:
Senate Resolution No. 39--Memorializing the life of Linda V.
Pennington, devoted employee of the West Virginia Senate and
dedicated West Virginian.
Whereas, Linda V. Pennington was born August 16, 1960, the
daughter of Floyd and Virginia Pennington of Belle, Kanawha County,
West Virginia; and
Whereas, Linda V. Pennington was a graduate of DuPont High
School; and
Whereas, Linda V. Pennington was the loving mother of her
beloved son, Everette Daniel Pennington; and
Whereas, Linda V. Pennington joined the staff of the West
Virginia Senate on June 16, 1990. Her dedication to duty and
responsibility, her qualities and strengths, and especially her
vibrant personality and ringing laughter endeared her to us. We know that her life touched us all and we each have memories of her
that we will treasure; and
Whereas, Sadly, and suddenly, the life Linda V. Pennington
came to an end on December 29, 2007, leaving behind her loving son
Everette, and life partner Joe Green, mother, Virginia Compton and
brother Danny, along with a host of family and friends; therefore,
be it
Resolved by the Senate:
That the Senate hereby memorializes the life of Linda V.
Pennington, devoted employee of the West Virginia Senate and
dedicated West Virginian; and, be it
Further Resolved, That the Senate hereby extends its sincere
sympathy at the passing of Linda V. Pennington; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the family of Linda V. Pennington.
At the request of Senator Chafin, 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 of the recess, the Senate reconvened and, at
the request of Senator Prezioso, and by unanimous consent, returned
to the second order of business and the introduction of guests.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business at
8 p.m. tonight.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68
Authority territory.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section two, line seven, after the word "eight"
by changing the period to a colon and inserting the following:
Provided, That the six members from the three additional counties
may only be added to the authority upon a majority vote of the
current membership of the authority: Provided, however, That this
majority vote may also occur at any time on or after the first day
of July, two thousand eight.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 72--A Bill to amend and reenact sections
1, 2 and 3, chapter 232, Acts of the Legislature, regular session,
1997, all relating to expanding the counties covered by West
Virginia Route 2 and Interstate 68 Authority to include Cabell,
Mason and Jackson counties; increasing the number of members; and
requiring prior authority approval for additional members.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 72) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 150, Budget bill.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the provisions of Engrossed Committee
Substitute for House Bill No. 4014.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B.
No. 150) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Boley, unanimous consent being
granted, the Senate proceeded to the thirteenth order of business.
Senator Boley called attention to today being the birthday of
the senator from Wood and on behalf of the Senate extended
felicitations and good wishes to Senator Deem, with Senator Love
leading the members in singing "Happy Birthday".
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 1:30
p.m. today.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of five from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the
administrative link between Shepherd University and Blue Ridge
Community and Technical College.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates M. Poling, Paxton, Williams, Doyle and Ireland.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4471, Making certain changes to the West
Virginia State Police Retirement System.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Stalnaker, Craig and Evans.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4482, Allowing payments from the Parkways
Authority to the Hatfield-McCoy Regional Recreational Authority to
continue past the nine-year limitation.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Browning, Barker and Walters.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4557, Relating to continuing education for
insurance producers.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Kominar, Perry and Ashley.
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. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Minard, Green and Yoder.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4715--A Bill supplementing, amending and
increasing items of the existing appropriations from the State Road
Fund to the Department of Transportation, Division of Highways,
fund 9017, fiscal year 2008, organization 0803, by supplementing
and amending the appropriations for the fiscal year ending the
thirtieth day of June, two thousand eight.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 680, Relating to corporate
net income tax and business franchise tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page fifteen, after section four, by inserting a new
article, designated article thirteen-y, to read as follows:
ARTICLE 13Y. THE WEST VIRGINIA MANUFACTURING PROPERTY TAX
ADJUSTMENT ACT.
§11-13Y-1. Short title.
This article shall be known and cited as the West Virginia Manufacturing Property Tax Adjustment Act.
§11-13Y-2. Definitions.
(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section
unless a different meaning is clearly required by the context in
which the term is used.
(b) Terms defined. --
(1) "Affiliate" means and includes all persons, as defined in
this section, which are affiliates of each other when either
directly or indirectly:
(A) One person controls or has the power to control the other,
or
(B) A third party or third parties control or have the power
to control two persons, the two thus being affiliates. In
determining whether concerns are independently owned and operated
and whether or not an affiliation exists, consideration shall be
given to all appropriate factors, including common ownership,
common management and contractual relationships.
(2) "Commissioner" or "Tax Commissioner" means the Tax
Commissioner of the State of West Virginia or the Tax
Commissioner's delegate.
(3) "Corporation" means any corporation, joint-stock company
or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of
interest or ownership or similar written instrument.
(4) "Delegate", when used in reference to the Tax
Commissioner, means any officer or employee of the Tax Division of
the Department of Revenue duly authorized by the Tax Commissioner
directly, or indirectly by one or more redelegations of authority,
to perform the functions mentioned or described in this article.
(5) "Eligible taxpayer" means any manufacturing business that
is subject to the tax imposed under article twenty-three or twenty-
four of this chapter, or both: Provided, That taxpayers owning
property assessed by the Board of Public Works are not eligible
taxpayers for purposes of this article. "Eligible taxpayer" also
means and includes those members of an affiliated group of
taxpayers engaged in a unitary business, in which one or more
members of the affiliated group is a person subject to the tax
imposed under article twenty-three or twenty-four of this chapter,
or both. Affiliates not engaged in the unitary business do not
qualify as eligible taxpayers.
(6) "Manufacturing business" means any business primarily
engaged in business activity classified as having a sector
identifier, consisting of the first two digits of the six-digit
North American Industry Classification System code number, of
thirty-one, thirty-two or thirty-three that also paid ad valorem
property tax on manufacturing inventory to one or more West Virginia counties during the taxable year.
(7) "Manufacturing inventory" means and is limited to raw
materials, goods in process and finished goods of a business
primarily engaged in business activity classified as having a
sector identifier, consisting of the first two digits of the six-
digit North American Industry Classification System code number, of
thirty-one, thirty-two or thirty-three.
(8) "Natural person" or "individual" means a human being.
(9) "Partnership" and "partner" means and includes a
syndicate, group, pool, joint venture or other unincorporated
organization through or by means of which any business, financial
operation or venture is carried on and which is not a trust or
estate, a corporation or a sole proprietorship. The term "partner"
includes a member in a syndicate, group, pool, joint venture or
organization.
(10) "Person" means and includes any natural person,
corporation, limited liability company or partnership.
(11) "Related entity", "related person", "entity related to"
or "person related to" means:
(A) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof controlled
by the taxpayer;
(B) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof that is in control of the taxpayer;
(C) An individual, corporation, partnership, affiliate,
association or trust or any combination or group thereof controlled
by an individual, corporation, partnership, affiliate, association
or trust or any combination or group thereof that is in control of
the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this article, "control", with respect to a
corporation, means ownership, directly or indirectly, of stock
possessing fifty percent or more of the total combined voting power
of all classes of the stock of the corporation which entitles its
owner to vote. "Control", with respect to a trust, means
ownership, directly or indirectly, of fifty percent or more of the
beneficial interest in the principal or income of the trust. The
ownership of stock in a corporation, of a capital or profits
interest in a partnership or association or of a beneficial
interest in a trust shall be determined in accordance with the
rules for constructive ownership of stock provided in Section
267(c) of the United States Internal Revenue Code, as amended:
Provided, That paragraph (3), Section 267(c) of the United States
Internal Revenue Code shall not apply.
(12) "Tax year" or "taxable year" means the tax year of the
taxpayer for federal income tax purposes.
(13) "Taxpayer" means any person subject to the tax imposed under article twenty-three or twenty-four of this chapter, or both.
(14) "Unitary business" means a unitary business as defined in
section three-a, article twenty-four of this chapter.
§11-13Y-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit
against the taxes imposed under articles twenty-three and twenty-
four of this chapter, as determined under this article.
§11-13Y-4. Amount of credit allowed.
(a) Credit allowed. -- Eligible taxpayers shall be allowed a
credit against the tax imposed under article twenty-three or
twenty-four of this chapter, the application of which and the
amount of which shall be determined as provided in this article.
(b) Amount of credit. -- The amount of credit allowed to the
eligible taxpayer is the amount of West Virginia ad valorem
property tax paid on the value of manufacturing inventory of the
eligible taxpayer during the corporate net income tax year and
business franchise tax year.
§11-13Y-5. Application of annual credit allowance.
(a) Application of credit against business franchise tax. --
The amount of credit allowed shall first be taken against the tax
liabilities of the eligible taxpayer for the current taxable year
imposed by article twenty-three of this chapter.
(b) Application of credit against corporate net income tax. --
Any credit remaining after application of the credit against the tax liabilities of the eligible taxpayer for the current taxable
year imposed by article twenty-three of this chapter shall next be
taken against the tax liabilities of the eligible taxpayer for the
current taxable year imposed by article twenty-four of this
chapter.
(c) Carryover credit disallowed. -- Any credit remaining after
application of the credit against the tax liabilities specified in
subsections (a) and (b) of this section for the current taxable
year is forfeited and shall not carry back to any prior taxable
year and shall not carry forward to any subsequent taxable year.
The credit allowed under this article shall be applied after
application of all other applicable tax credits allowed for the
taxable year against the taxes imposed by article twenty-three of
this chapter and after application of all other applicable tax
credits allowed for the taxable year against the taxes imposed by
article twenty-four of this chapter.
(d) Annual schedule. -- For purposes of asserting the credit
against tax, the taxpayer shall prepare and file an annual schedule
showing the amount of tax paid for the taxable year and the amount
of credit allowed under this article. The annual schedule shall
set forth the information and be in the form prescribed by the Tax
Commissioner.
§11-13Y-6. Availability of credit to successors.
(a) Transfer or sale of assets. --
(1) Where there has been a transfer or sale of the business
assets of an eligible taxpayer to a successor which subsequent to
the transfer constitutes an eligible taxpayer as defined in this
article, which continues to operate the manufacturing business in
this state, and which remains subject to the taxes prescribed under
article twenty-three or twenty-four of this chapter, or both, the
successor eligible taxpayer is entitled to the credit allowed under
this article: Provided, That the successor taxpayer otherwise
remains in compliance with the requirements of this article for
entitlement to the credit.
(2) For any taxable year during which a transfer, or sale of
the business assets of an eligible taxpayer to a successor eligible
taxpayer under this section occurs, or a merger occurs pursuant to
which credit is allowed under this article, the credit allowed
under this article shall be apportioned between the predecessor
eligible taxpayer and the successor eligible taxpayer based on the
number of days during the taxable year that each taxpayer based and
the number of days during the taxable year that each taxpayer owned
the business assets transferred.
(b) Stock purchases. -- Where a corporation which is an
eligible taxpayer entitled to the credit allowed under this article
is purchased through a stock purchase by a new owner and remains a
legal entity so as to retain its corporate identity, the
entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change: Provided,
That the corporation otherwise remains in compliance with the
requirements of this article for entitlement to the credit.
(c) Mergers. --
(1) Where a corporation or other entity which is an eligible
taxpayer entitled to the credit allowed under this article is
merged with another corporation or entity, the surviving
corporation or entity shall be entitled to the credit to which the
predecessor eligible taxpayer was originally entitled: Provided,
That the surviving corporation or entity otherwise complies with
the provisions of this article.
(2) The amount of credit available in any taxable year during
which a merger occurs shall be apportioned between the predecessor
eligible taxpayer and the successor eligible taxpayer based on the
number of days during the taxable year that each owned the
transferred business assets.
(d) No provision of this section or of this article shall be
construed to allow sales or other transfers of the tax credit
allowed under this article. The credit allowed under this article
can be transferred only in circumstances where there is a valid
successorship as described under this section.
§11-13Y-7. Credit recapture; interest; penalties; additions to
tax; statute of limitations.
(a) If it appears upon audit or otherwise that any person or entity has taken the credit against tax allowed under this article
and was not entitled to take the credit, then the credit improperly
taken under this article shall be recaptured. Amended returns
shall be filed for any tax year for which the credit was improperly
taken. Any additional taxes due under this chapter shall be
remitted with the amended return or returns filed with the Tax
Commissioner, along with interest, as provided in section
seventeen, article ten of this chapter and such other penalties and
additions to tax as may be applicable pursuant to the provisions of
article ten of this chapter.
(b) Notwithstanding the provisions of article ten of this
chapter, penalties and additions to tax imposed under article ten
of this chapter may be waived at the discretion of the Tax
commissioner: Provided, That interest is not subject to waiver.
(c) Notwithstanding the provisions of article ten of this
chapter, the statute of limitations for the issuance of an
assessment of tax by the Tax Commissioner shall be five years from
the date of filing of any tax return on which this credit was taken
or five years from the date of payment of any tax liability
calculated pursuant to the assertion of the credit allowed under
this article, whichever is later.
§11-13Y-8. Report on credit.
(a) The Tax Commissioner shall provide to the Joint Committee
on Government and Finance by the first day of July, two thousand eleven, and on the first day of July of each year thereafter, a
report detailing the amount of credit claimed pursuant to this
article. The report is to include the amount of credit claimed
against the business franchise tax and the amount of credit claimed
against the corporate net income tax.
(b) Taxpayers claiming the credit shall provide the
information as the Tax Commissioner may require to prepare the
report: Provided, That the information is subject to the
confidentiality and disclosure provisions of sections five-d and
five-s, article ten of this chapter.
§11-13Y-9. Effective date.
This article shall be effective for corporate net income tax
years and business franchise tax years beginning on or after the
first day of January, two thousand nine.;
On page twenty-eight, section five-a, after line two hundred
sixty-five, by inserting a new subsection, designated subsection
(g), to read as follows:
(g) Limited tax credit for certain financial organizations for
certain periods. -- A credit shall be allowed against the tax
imposed by this article on a financial organization with its
commercial domicile in this state that acquires a financial
organization that does not have its commercial domicile in this
state: Provided, That the goodwill associated with the acquisition
is first added to the net equity of the financial organization with its commercial domicile in this state on or after the first day of
January two thousand eight: Provided, however, that the prior
recordation of the goodwill associated with the acquisition on the
balance sheet of a financial organization that does not have its
commercial domicile in this state shall not affect, limit or reduce
the availability of the credit authorized by this subsection. The
credit shall equal fifty percent of the goodwill associated with
the acquisition in the amount first recorded on the balance sheet
of the financial organization with its commercial domicile in this
state, multiplied by the tax rate applicable to the financial
organization under this article for the taxable year. For purposes
of this subsection, the term "goodwill" shall have the meaning set
forth in the capital adequacy guidelines for bank holding companies
established by the Federal Reserve Board in 12 C. F. R. 225,
Appendix A, as the same may be revised from time to time.;
And relettering the remaining subsection;
On page twenty-nine, section five-a, line two hundred seventy-
eight, after the word "eight" by changing the period to a colon and
inserting the following proviso: Provided, That the amendments to
subsection (g) of this section, enacted in the year two thousand
eight, shall apply to taxable years beginning after the thirty-
first day of December, two thousand seven.;
On page twenty-nine, after section five-a, by inserting a new
section, designated section six, to read as follows:
§11-23-6. Imposition of tax; change in rate of tax.
(a) General. -- An annual business franchise tax is hereby
imposed on the privilege of doing business in this state and in
respect of the benefits and protection conferred. Such tax shall
be collected from every domestic corporation, every corporation
having its commercial domicile in this state, every foreign or
domestic corporation owning or leasing real or tangible personal
property located in this state or doing business in this state and
from every partnership owning or leasing real or tangible personal
property located in this state or doing business in this state
effective on and after the first day of July, one thousand nine
hundred eighty-seven.
(b) Amount of tax and rate; effective date. --
(1) On and after the first day of July, one thousand nine
hundred eighty-seven, the amount of tax shall be the greater of
fifty dollars or fifty-five one hundredths of one percent of the
value of the tax base, as determined under this article: Provided,
That when the taxpayer's first taxable year under this article is
a short taxable year, the taxpayer's liability shall be prorated
based upon the ratio which the number of months in which such short
taxable year bears to twelve: Provided, however, That this
subdivision shall not apply to taxable years beginning on or after
the first day of January, one thousand nine hundred eighty-nine.
(2) Taxable years after the thirty-first day of December, one thousand nine hundred eighty-eight. -- For taxable years beginning
on or after the first day of January, one thousand nine hundred
eighty-nine, the amount of tax due under this article shall be the
greater of fifty dollars or seventy-five one hundredths of one
percent of the value of the tax base as determined under this
article.
(3) Taxable years after the thirtieth day of June, one
thousand nine hundred ninety-seven. -- For taxable years beginning
on or after the first day of July, one thousand nine hundred
ninety-seven, the amount of tax due under this article shall be the
greater of fifty dollars or seventy hundredths of one percent of
the value of the tax base as determined under this article.
(4) Taxable years after the thirty-first day of December, two
thousand six. -- For taxable years beginning on or after the first
day of January, two thousand seven, the amount of tax due under
this article shall be the greater of fifty dollars or fifty-five
one hundredths of one percent of the value of the tax base as
determined under this article.
(5) Taxable years after the thirty-first day of December, two
thousand eight. -- For taxable years beginning on or after the
first day of January, two thousand nine, the amount of tax due
under this article shall be the greater of fifty dollars or
forty-eight one hundredths of one percent of the value of the tax
base as determined under this article.
(6) Taxable years after the thirty-first day of December, two
thousand nine. -- For taxable years beginning on or after the first
day of January, two thousand ten, the amount of tax due under this
article shall be the greater of fifty dollars or forty-one one
hundredths of one percent of the value of the tax base as
determined under this article.
(7) Taxable years after the thirty-first day of December, two
thousand ten. -- For taxable years beginning on or after the first
day of January, two thousand eleven, the amount of tax due under
this article shall be the greater of fifty dollars or thirty-four
one hundredths of one percent of the value of the tax base as
determined under this article.
(8) Taxable years after the thirty-first day of December, two
thousand eleven. -- For taxable years beginning on or after the
first day of January, two thousand twelve, the amount of tax due
under this article shall be the greater of fifty dollars or
twenty-seven one hundredths of one percent of the value of the tax
base as determined under this article.
(9) Taxable years after the thirty-first day of December, two
thousand twelve. -- For taxable years beginning on or after the
first day of January, two thousand thirteen, the amount of tax due
under this article shall be the greater of fifty dollars or twenty
one hundredths of one percent of the value of the tax base as
determined under this article.
(10) Taxable years after the thirty-first day of December, two
thousand thirteen. -- For taxable years beginning on or after the
first day of January, two thousand fourteen, the amount of tax due
under this article shall be the greater of fifty dollars or ten one
hundredths of one percent of the value of the tax base as
determined under this article.
(11) Taxable years after the thirty-first day of December, two
thousand fourteen. -- For taxable years beginning on or after the
first day of January, two thousand fifteen, there shall be no tax
due under the provisions of this article.
(c) Short taxable years. -- When the taxpayer's taxable year
for federal income tax purposes is a short taxable year, the tax
determined by application of the tax rate to the taxpayer's tax
base shall be prorated based upon the ratio which the number of
months in such short taxable year bears to twelve: Provided, That
when the taxpayer's first taxable year under this article is less
than twelve months, the taxpayer's liability shall be prorated
based upon the ratio which the number of months the taxpayer was
doing business in this state bears to twelve, but in no event shall
the tax due be less than fifty dollars.;
On page forty-eight, section four, after line fifty-one, by
striking out the remainder of the section and inserting in lieu
thereof the following:
(5) In the case of taxable periods beginning on or after the first day of January, two thousand nine, a tax is hereby imposed
for each taxable year on the West Virginia taxable income of every
domestic or foreign corporation engaging in business in this state
or deriving income from property, activity or other sources in this
state, except corporations exempt under section five of this
article, at the rate of eight and one-half percent.
(6) In the case of taxable periods beginning on or after the
first day of January, two thousand twelve, a tax is hereby imposed
for each taxable year on the West Virginia taxable income of every
domestic or foreign corporation engaging in business in this state
or deriving income from property, activity or other sources in this
state, except corporations exempt under section five of this
article, at the rate of seven and three-quarters percent:
Provided, That the reduction in tax authorized by this subsection
shall be suspended if the combined balance of funds as of the
thirtieth day of June two thousand eleven in the Revenue Fund
Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund
- Part B established in section twenty, article two, chapter
eleven-b of this code does not equal or exceed ten percent of the
general revenue fund budgeted for the fiscal year commencing the
first day of July, two thousand eleven: Provided, however, That
the rate reduction schedule will resume in the calendar year
immediately following any subsequent fiscal year when the combined
balance of funds as of the thirtieth day of June of that fiscal year in the Revenue Fund Shortfall Reserve Fund and the Revenue
Fund Shortfall Reserve Fund - Part B next equals or exceeds ten
percent of the general revenue fund budgeted for the immediately
succeeding fiscal year.
(7) In the case of taxable periods beginning on or after the
first day of January, two thousand thirteen, a tax is hereby
imposed for each taxable year on the West Virginia taxable income
of every domestic or foreign corporation engaging in business in
this state or deriving income from property, activity or other
sources in this state, except corporations exempt under section
five of this article, at the rate of seven percent: Provided, That
the reduction in tax authorized by this subsection shall be
suspended for one calendar year subsequent to the occurrence of the
suspension of the reduction in tax authorized by subdivision (6) of
this section: Provided, however, That the reduction in tax on the
first day of any calendar year authorized by this subsection shall
be suspended if the combined balance of funds as of the thirtieth
day of June of the preceding year in the Revenue Fund Shortfall
Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B
established in section twenty, article two, chapter eleven-b of
this code does not equal or exceed ten percent of the general
revenue fund budgeted for the fiscal year commencing the first day
of July of the preceding year.
(8) In the case of taxable periods beginning on or after the first day of January, two thousand fourteen, a tax is hereby
imposed for each taxable year on the West Virginia taxable income
of every domestic or foreign corporation engaging in business in
this state or deriving income from property, activity or other
sources in this state, except corporations exempt under section
five of this article, at the rate of six and one-half percent:
Provided, That the reduction in tax authorized by this subsection
shall be suspended for one calendar year subsequent to the
occurrence of the suspension of the reduction in tax authorized by
subdivision (7) of this section: Provided, however, That the
reduction in tax on the first day of any calendar year authorized
by this subsection shall be suspended if the combined balance of
funds as of the thirtieth day of June of the preceding year in the
Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall
Reserve Fund - Part B established in section twenty, article two,
chapter eleven-b of this code does not equal or exceed ten percent
of the general revenue fund budgeted for the fiscal year commencing
the first day of July of the preceding year.;
On page one hundred, section thirteen-a, line two hundred,
after the word "contrary" by striking out the comma and inserting
the words "except the last sentence of this subsection";
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §11-23-5b of the Code of West Virginia, 1931, as amended, be repealed; that §11-13S-4 of said code be amended and reenacted;
that said code be amended by adding thereto a new article,
designated §11-13Y-1, §11-13Y-2, §11-13Y-3, §11-13Y-4, §11-13Y-5,
§11-13Y-6, §11-13Y-7, §11-13Y-8 and §11-13Y-9; that §11-23-5a and
§11-23-6 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §11-23-17b;
that §11-24-3a, §11-24-4, §11-24-7, §11-24-7b, §11-24-13a, §11-24-
13c, §11-24-13d, §11-24-13f and §11-24-42 of said code be amended
and reenacted; and that said code be amended by adding thereto two
new sections, designated §11-24-3b and 11-24-9b, all to read as
follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 680--A Bill to repeal §11-
23-5b of the Code of West Virginia, 1931, as amended; to amend and
reenact §11-13S-4 of said code; to amend said code by adding
thereto a new article, designated §11-13Y-1, §11-13Y-2, §11-13Y-3,
§11-13Y-4, §11-13Y-5, §11-13Y-6, §11-13Y-7, §11-13Y-8 and §11-13Y-
9; to amend and reenact §11-23-5a and §11-23-6 of said code; to
amend said code by adding thereto a new section, designated §11-23-
17b; to amend and reenact §11-24-3a, §11-24-4, §11-24-7, §11-24-7b,
§11-24-13a, §11-24-13c, §11-24-13d, §11-24-13f and §11-24-42 of
said code; and to amend said code by adding thereto two new sections, designated §11-24-3b and 11-24-9b, all relating to
business taxes generally; specifying percentage of taxes subject to
offset by manufacturing investment tax credit; creating credit for
the value of certain ad valorem taxes paid; requiring report on the
application of the credit; providing definitions relating to
business franchise tax; providing for eligibility of financial
organizations for tax credits; specifying amount of credit allowed;
providing for treatment of goodwill associated with certain
acquisitions; specifying reductions of business franchise tax rate;
defining terms relating to corporate net income tax; specifying
general meaning relating to the term "tax haven"; specifying
imposition of tax and rates; specifying reductions of corporation
net income tax rate and suspension of reductions in certain
circumstances; specifying nullity for designated provisions;
specifying removal of nullity for designated provisions; specifying
apportionment rules for financial organizations; specifying
treatment of insurance companies; specifying method of filing;
specifying application of designated net operating losses;
specifying treatment of designated dividends; mandating reporting
on water's-edge unitary basis; specifying election to report based
on worldwide unitary basis; specifying authority of Tax
Commissioner to prescribe reporting basis; and establishing
effective dates.
Senator Chafin moved that the Senate concur in the House of Delegates amendments to the bill.
Following extended discussion,
The question being on the adoption of Senator Chafin's
aforestated motion, and on this question, Senator Caruth demanded
the yeas and nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin,
Edgell, Facemyer, Fanning, Foster, Green, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall,
Sprouse, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Chafin's motion to
concur in the House of Delegates amendments to the bill had
prevailed.
Thereafter, at the request of Senator Hunter, and by unanimous
consent, the remarks by Senators Yoder, White, Sprouse and McCabe
regarding the adoption of Senator Chafin's aforestated motion were
ordered printed in the Appendix to the Journal.
Engrossed Committee Substitute for Senate Bill No. 680, as
amended by the House of Delegates, was then 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, Stollings,
Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Barnes, Sprouse, Sypolt and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 680) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Love, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4022, Relating to compensation and
expenses of panel attorneys providing public defender services.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates M. Poling, Shook and Ellem.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 201,
Providing terms for certain retirement benefits disqualification.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page twelve, section five, line fifteen, after the word
"article" by changing the period to a colon and inserting the
following proviso: Provided, That this article does not authorize
the termination of benefits received by a beneficiary that are
received as a result of the beneficiary's own membership in a plan
or the beneficiary's status as a beneficiary of a member other than
the participant or former participant.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 201, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 201) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 207, Relating to Deputy
Sheriff Retirement System Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page twenty-five, section thirty, line ten, by striking out
the word "ten" and inserting in lieu thereof the word "ten-d".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 207, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 207) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 208, Clarifying all
Consolidated Public Retirement Board systems are included in
employer pick-up provisions.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 227, Relating to State
Teachers Retirement System.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section three, line twenty-eight, after the
word "an" by inserting the word "inadvertent".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 227, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 227) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 253, Defining "survey foot".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 292, Allowing Commissioner
of Banking issue bond claims to collect certain unpaid penalties
and invoices.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 340, Requiring consumers'
notification of information security breach.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 340--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §46A-2A-101, §46A-2A-102, §46A-2A-103, §46A-2A-104 and §46A-2A-105, all relating to the unauthorized
access or acquisition of certain computerized data which
compromises the security, confidentiality or integrity of personal
information; requiring notification of a breach of the security of
a system compromising personal information; permitting internal
notification procedures; noncompliance; enforcement by the Attorney
General; civil penalties; violations by a licensed financial
institutions; and applicability.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 340, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 340) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 349, Authorizing
Miscellaneous Boards and Agencies promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. Board of Acupuncturists.
(a) The legislative rule filed in the State Register on the
seventeenth day of July, two thousand seven, authorized under the
authority of section seven, article thirty-six, chapter thirty of
this code, modified by the Board of Acupuncture to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixth day of November, two
thousand seven, relating to the Board of Acupuncture (disciplinary and complaint procedures for acupuncturists, 32 CSR 7), is
authorized with the following amendment:
On page one, by striking out subsection 3.7. and renumbering
the remaining subsection;
And,
On page seven, section five, by striking out the section
caption and inserting in lieu thereof a new section caption, to
read as follows:
'32-7-5. Complaint Disposition.'
(b) The legislative rule filed in the State Register on the
seventeenth day of July, two thousand seven, authorized under the
authority of section seven, article thirty-six, chapter thirty of
this code, modified by the Board of Acupuncture to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixth day of November, two
thousand seven, relating to the Board of Acupuncture (continuing
education requirements, 32 CSR 9), is authorized with the following
amendment:
On page two, subsection 5.2., after the word 'shall' by
inserting the word 'assign';
And,
On page three, subsection 7.1., by striking out the word
"fourty-eight" and inserting in lieu thereof the word "forty-
eight".
§64-9-2. Commissioner of Agriculture.
(a) The legislative rule filed in the State Register on the
twenty-fourth day of July, two thousand seven, authorized under the
authority of section four, article sixteen-a, chapter nineteen of
this code, relating to the Commissioner of Agriculture (fee
structure for the Pesticide Control Act of 1990, 61 CSR 12), is
authorized.
(b) The legislative rule filed in the State Register on the
twenty-ninth day of June, two thousand seven, authorized under the
authority of section five, article two-c, chapter nineteen of this
code, modified by the Commissioner of Agriculture to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-eighth day of August,
two thousand seven, relating to the Commissioner of Agriculture
(auctioneers, 61 CSR 11B), is authorized with the following
amendment:
On page one, subsection 3.1., by striking out the word
'applicant's' and inserting in lieu thereof the word 'applicant'.
(c) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section three, article twelve, chapter nineteen of
this code, modified by the Commissioner of Agriculture to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-seventh day of August, two thousand seven, relating to the Commissioner of Agriculture
(West Virginia Plant Pest Act, 61 CSR 14), is authorized.
(d) The legislative rule filed in the State Register on the
twenty-sixth day of June, two thousand seven, authorized under the
authority of section three, article two-b, chapter nineteen of this
code, relating to the Commissioner of Agriculture (inspection of
meat and poultry, 61 CSR 16), is authorized.
(e) The legislative rule filed in the State Register on the
twenty-fourth day of July, two thousand seven, authorized under the
authority of section ten, article eleven-b, chapter nineteen of
this code, relating to the Commissioner of Agriculture (frozen
desserts and imitation frozen desserts, 61 CSR 4B), is authorized.
§64-9-3. State Auditor.
(a) The legislative rule filed in the State Register on the
twenty-fifth day of July, two thousand seven, authorized under the
authority of section ten, article three, chapter twelve of this
code, modified by the State Auditor to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of October, two thousand seven,
relating to the State Auditor (standards for requisitions for
payment issued to state officers on the auditor, 155 CSR 1), is
authorized.
(b) The legislative rule filed in the State Register on the
twenty-fifth day of July, two thousand seven, authorized under the authority of section ten-a, article three, chapter twelve of this
code, modified by the State Auditor to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of October, two thousand seven,
relating to the State Auditor (State Purchasing Card Program, 155
CSR 7), is authorized.
§64-9-4. Board of Dental Examiners.
The legislative rule filed in the State Register on the
nineteenth day of July, two thousand seven, authorized under the
authority of section six, article four, chapter thirty of this
code, modified by the Board of Dental Examiners to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventeenth day of October,
two thousand seven, relating to the Board of Dental Examiners (rule
for the West Virginia Board of Dental Examiners, 5 CSR 1), is
authorized.
§64-9-5. State Election Commission.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section eight, article eight, chapter three of
this code, modified by the State Election Commission to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the State Election Commission (corporate political activity, 146 CSR 1), is authorized with the
following amendment:
On page one, subsection 2.2., by striking out the words
"'Contribution or Expenditure'" and inserting in lieu thereof the
words "'Contribution' or 'Expenditure'";
On page one, subdivision 2.2.e., by striking out "WV" and
inserting in lieu thereof "W. Va.";
On page three, subsection 3.1., line two, by striking out the
word "series" and inserting in lieu thereof the word "rule";
On page four, subdivision 3.3.a., by striking out "WV" and
inserting in lieu thereof "W. Va.";
On page four, paragraph 3.3.c.1., by striking out "WV" and
inserting in lieu thereof "W. Va.";
On page four, paragraph 3.3.d.1., by striking out "WV" and
inserting in lieu thereof "W. Va.";
On page five, paragraph 3.3.f.5., lines four and seven, by
striking out the word "Paragraph" and inserting in lieu thereof the
word "paragraph";
On page five, paragraph 3.3.f.5., lines five and seven, by
striking out the word "subsection" and inserting in lieu thereof
the word "subdivision";
On page five, paragraph 3.3.f.6., by striking out the words
"the above regulations" and inserting in lieu thereof the words
"this rule";
On page five, paragraph 3.3.f.7., by changing the colon to a
comma and by striking out the words "Provided, that such" and
inserting in lieu thereof the words "provided that the";
On page six, subsection 4.3., by striking out the words "The
establishment, administration and solicitation of contributions to
a Corporate Political Action Committee, by means and in amounts as
herein specified:
4.3.a.";
On page seven, subdivision 4.4.a., by striking out the word
"Section" and inserting in lieu thereof the word "subsection";
On page seven, subdivision 4.4.b., line five, by striking out
the word "Section" and inserting in lieu thereof the word
"subsection";
On page eight, subsection 5.1., by striking out "WV" and
inserting in lieu thereof "W. Va.";
On page eight, subdivision 5.1.a., by striking out "5.1.a."
and by adding the subsequent sentence to the end of subsection
5.1.;
On page eight, subdivision 5.2.b., by striking out "WV" and
inserting in lieu thereof "W. Va.";
And,
On page nine, section seven, by striking out "7.1.".
(b) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under the authority of section five, article one-a, chapter three of this
code, modified by the State Election Commission to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the State Election Commission
(regulation of campaign finance, 146 CSR 3), is authorized with the
following amendment:
On page thirteen, by striking out section 14 in its entirety.
(c) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section five, article one-a, chapter three of this
code, modified by the State Election Commission to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the State Election Commission (election
expenditures, 146 CSR 4), is authorized with the following
amendment:
On page four, by striking out sections 12 and 13 in their
entirety.
§64-9-7. Board of Funeral Service Examiners.
The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section six, article six, chapter thirty of this
code, modified by the Board of Funeral Service Examiners to meet the objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Board of Funeral Service Examiners
(funeral director, embalmer, apprentice, courtesy card holder and
funeral establishment requirements, 6 CSR 1), is authorized with
the following amendment:
On page two, section two, by striking subdivision 2.8.6 in its
entirety;
On page fifteen, section sixteen, subdivision 16.11.3, by
striking the words and numbers 'two hundred dollars ($200)' and
inserting in lieu thereof the words and numbers 'one hundred sixty
dollars ($160.00)';
And,
On page sixteen, section sixteen, by striking subdivisions
16.11.15 and 16.11.16 in their entirety."
§64-9-8. Board of Hearing Aid Dealers.
The legislative rule filed in the State Register on the
twenty-fifth day of July, two thousand seven, authorized under the
authority of section three, article twenty-six, chapter thirty of
this code, modified by the Board of Hearing Aid Dealers to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the third day of January, two
thousand eight, relating to the Board of Hearing Aid Dealers (rules
governing the West Virginia Board of Hearing Aid Dealers, 8 CSR 1), is authorized with the following amendment:
On page two, subsection 4.1., by striking out 'fifty dollars
($50.00)' and inserting in lieu thereof 'one hundred dollars
($100.00)';
On page two, subsection 4.3., by striking out 'forty dollars
($40.00)' and the remaining sentence and inserting in lieu thereof
'one hundred dollars ($100.00)';
On page two, subsection 4.5., by striking out 'one dollar
($1.00)' and inserting in lieu thereof 'ten dollars ($10.00)';
On page two, subsection 4.6., by striking out 'twenty-five
dollars ($25.00)' and inserting in lieu thereof 'one hundred
dollars ($100.00)';
On page three, subsection 4.7., by striking out 'fifty dollars
($50.00)' and inserting in lieu thereof 'one hundred dollars
($100.00)';
On page four, subsection 7.1., after the words 'the
prospective customer:' by striking out the remainder of the
subsection and inserting in lieu thereof the following: The
purchaser has been advised at the outset of his relationship with
the hearing aid dealer that any examination of representation made
by a licensed hearing aid dealer in connection with the practice of
fitting this hearing aid is not an examination, diagnosis or
prescription by a person licensed to practice medicine in this
state and therefore must not be regarded as medical opinion.;
On page four, subdivision 7.5.d., by striking out the words
'be required to advise in writing' and inserting in lieu thereof
the word 'determine';
On page four, by striking out all of subsection 7.6. and
renumbering the remaining subsections;
On page five, subsection 8.2., by striking out all of
subdivisions (i) and (j) and re-lettering the remaining
subdivision;
On page five, by striking out all of subsection 8.5;
On page six, subsection 9.4., by striking out the words 'terms
'Certified Member' or 'Certified Hearing Aid Audiologist'' and
inserting in lieu thereof the words 'term 'Certified Member';
On page six, after subsection 9.6., by adding thereto a new
subsection, to read as follows:
'9.7. The hearing aid dealer must prominently display the
following advisement: 'Consumers may contact the West Virginia
Board of Hearing Aid Dealers at 167 11th Avenue, South Charleston,
WV 25303, if the consumer believes that the hearing aid dealer has
not satisfied the terms of the contract.';
On page seven, subsection 12.2., after the words 'body of the
purchase agreement:' by striking out the remainder of the
subsection and inserting in lieu thereof the following: 'You have
the right to return the hearing aid to the dealer from whom it was
purchased at anytime within thirty (30) days after receipt of the aid and rescind the purchase agreement except for reasonable
fitting and examination charges ($125.00 maximum fitting charge),
if the aid does not function properly or cannot be adjusted to
correct the deficiency in your hearing or is otherwise
unsatisfactory. The aid so returned must be without damage.';
And,
On page seven, by striking out all of subsection 12.4. and
renumbering the remaining subsections.
§64-9-9. Massage Therapy Licensure Board.
The legislative rule filed in the State Register on the
sixteenth day of July, two thousand seven, authorized under the
authority of section six, article thirty-seven, chapter thirty of
this code, relating to the Massage Therapy Licensure Board (general
provisions, 194 CSR 1), is authorized.
§64-9-10. Medical Imaging and Radiation Therapy Technology Board of
Examiners.
(a) The legislative rule filed in the State Register on the
eighteenth day of July, two thousand seven, authorized under the
authority of section seven, article twenty-three, chapter thirty of
this code, modified by the Medical Imaging and Radiation Therapy
Technology Board of Examiners to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the sixteenth day of October, two thousand seven,
relating to the Medical Imaging and Radiation Therapy Technology Board of Examiners (rule of the Medical Imaging and Radiation
Therapy Technology Board of Examiners, 18 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the
eighteenth day of July, two thousand seven, authorized under the
authority of section seven, article twenty-three, chapter thirty of
this code, modified by the Medical Imaging and Radiation Therapy
Technology Board of Examiners to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the sixteenth day of October, two thousand seven,
relating to the Medical Imaging and Radiation Therapy Technology
Board of Examiners (continuing education, 18 CSR 2), is authorized
with the following amendment:
On page one, subsection 1.2., by striking out '30-7A-5 &64-9-
17(h)' and inserting in lieu thereof '30-23-7';
And,
On page five, subdivision 3.4.1., by striking out the words
'Grand fathered' and inserting in lieu thereof the word
'grandfathered'.
(c) The legislative rule filed in the State Register on the
eighteenth day of July, two thousand seven, authorized under the
authority of section seven, article twenty-three, chapter thirty of
this code, modified by the Medical Imaging and Radiation Therapy
Technology Board of Examiners to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of October, two thousand seven,
relating to the Medical Imaging and Radiation Therapy Technology
Board of Examiners (standard of ethics, 18 CSR 5), is authorized.
§64-9-11. Board of Medicine.
(a) The legislative rule filed in the State Register on the
tenth day of July, two thousand seven, authorized under the
authority of section seven, article three, chapter thirty of this
code, relating to the Board of Medicine (continuing education for
physicians and podiatrists, 11 CSR 6), is authorized with the
following amendment:
On page on, subsection 2.1., by striking out the number '1993'
and inserting in lieu thereof the number '2008';
On page one, subsection 2.1., by striking out the words 'At
least thirty (30) hours of the hours must be related to the
physician's area or areas of specialty.' and inserting in lieu
thereof the following: 'Beginning July 1, 2008, at least thirty
(30) hours of the continuing medical education hours must be
related to the physician's area or areas of specialty.';
And,
On page two, subsection 2.3., by striking out the words 'At
least thirty (30) hours of the hours must be related to the
podiatrist's area or areas of specialty.' and inserting in lieu
thereof the following: 'Beginning July 1, 2008, at least thirty
(30) hours of the continuing podiatric education hours must be related to the podiatrist's area or areas of specialty.'.
(b) The legislative rule filed in the State Register on the
sixteenth day of November, two thousand six, authorized under the
authority of section twenty-eight, article five, chapter thirty of
this code, modified by the Board of Medicine to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the tenth day of October, two thousand seven,
relating to the Board of Medicine (collaborative pharmacy practice,
11 CSR 8), is authorized.
(c) The legislative rule filed in the State Register on the
nineteenth day of July, two thousand seven, authorized under the
authority of section seven-a, article three, chapter thirty of this
code, modified by the Board of Medicine to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the
State Register on the twenty-ninth day of November, two thousand
seven, relating to the Board of Medicine (certification,
disciplinary and complaint procedures, continuing education and
radiologist assistants, 11 CSR 9), is authorized.
§64-9-12. Nursing Home Administrators Licensing Board.
The legislative rule filed in the State Register on the
thirteenth day of June, two thousand seven, authorized under the
authority of section seven, article twenty-five, chapter thirty of
this code, modified by the Nursing Home Administrators Licensing
Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-eighth
day of August, two thousand seven, relating to the Nursing Home
Administrators Licensing Board (nursing home administrators, 21 CSR
1), is authorized with the following amendment:
On page six, subdivision 4.2.1.a., after the words 'Emeritus
State Administrators' by striking out the remainder of the
subdivision and inserting in lieu thereof the words 'shall obtain
annually at least ten (10) clock hours of continuing education
approved as provided in subsection 4.2.1. of this rule.'.
§64-9-13. Pharmaceutical Cost Management Council.
The legislative rule filed in the State Register on the ninth
day of July, two thousand seven, authorized under the authority of
section fifteen, article three-c, chapter five-a of this code,
modified by the Pharmaceutical Cost Management Council to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the fourteenth day of January, two
thousand eight, relating to the Pharmaceutical Cost Management
Council(prescription drug advertising expense reporting, 206 CSR
1), is authorized.
§64-9-14. Board of Professional Surveyors.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section six, article thirteen-a, chapter thirty of
this code, modified by the Board of Professional Surveyors to meet the objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the nineteenth day of December,
two thousand seven, relating to the Board of Professional Surveyors
(examination and licensing of professional surveyors in West
Virginia, 23 CSR 1), is authorized with the following amendment:
On page one, subsection 1.2., by striking out '30-13A-5(13)'
and inserting in lieu thereof '30-13A-6';
On page two, subsection 2.10., after the word 'Board', by
inserting a period and striking out the remainder of that
subsection.
On page four, subdivision 3.1.d., after the word 'data' by
striking out the words 'education and employment history';
On page five, subdivision 3.4.a.3., after the words 'of the
examination', by striking out the word 'for' and inserting in lieu
thereof the word 'after';
On page eight, subdivision 5.2.c. after the word 'certificate'
by striking out the word 'shall' and inserting in lieu thereof the
word 'may';
On page nine, subdivision 5.2.f.3. after the word
'examination' by striking the word 'for' and inserting in lieu
thereof the word 'after';
On page nine, subdivision 5.3.c. after the underlined word
'shall' by adding the word 'conspicuously';
On page ten, after subdivision 5.3.e. by adding a new subdivision, designated 5.3.f., to read as follows: 'A wallet card
shall be issued simultaneously to be kept on the licensee's
person.';
And,
On page ten, subdivision 5.5.c, in the second sentence, after
the word 'months' by striking the word 'shall' and inserting in
lieu thereof the word 'may'.
(b) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section five, article thirteen-a, chapter thirty
of this code and section six of said article, modified by the Board
of Professional Surveyors to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on
the nineteenth day of December, two thousand seven, relating to the
Board of Professional Surveyors (fees for surveyors and surveying
firms, 23 CSR 4), is authorized with the following amendment:
On page one, subsection 1.2., after "30-13A-5(13)" by
inserting "and §30-13A-6;";
On page three, section 4, after the words "PS License (Active
or Inactive)", by striking out "$150.00" and inserting in lieu
thereof "$100.00";
On page three, section 4, by striking out the colon and the
following:
"Less than ten (10) employees$150.00"
"Ten (10) employees to less than fifty (50)$250.00"
"Fifty (50) employees or more$500.00"
and inserting in lieu thereof "$100.00";
And,
On page four, subdivision 4.5.i. after the words 'Returned
Check Fee' by striking the figure '$40.00' and inserting in lieu
thereof the following 'Maximum allowable by WV Code'.
(c) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section six, article thirteen-a, chapter thirty of
this code, modified by the Board of Professional Surveyors to meet
the objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the nineteenth day of December,
two thousand seven, relating to the Board of Professional Surveyors
(standards for practice of surveying in West Virginia, 23 CSR 5),
is authorized with the following amendment:
On page one, subsection 1.2., by striking out '5' and
inserting in lieu thereof '6'.
§64-9-15. Public Service Commission.
The legislative rule filed in the State Register on the
twenty-sixth day of September, two thousand six, authorized under
the authority of section six-b, article six, chapter twenty-four of
this code, relating to the Public Service Commission (emergency
telephone service, 150 CSR 25), is authorized with the following amendment:
On page one, subsection 2.1., line one, by striking out 'these
rules' and inserting in lieu thereof 'this rule';
On page one, subsection 2.1., line six, by striking out 'these
rules' and inserting in lieu thereof 'this rule';
On page four, subsection 2.27., following the words 'the
Speaker of the House of Delegates or that person's designee' by
adding a comma and the words 'as a non-voting member';
On page four, subsection 2.27., following the words 'the
Senate President or that person's designee' by adding a comma and
the words 'as a non-voting member';
On page eight, subsection 5.1., by striking out '5.1.a.' and
inserting in lieu thereof '5.2.' and by renumbering the remaining
subsections accordingly;
On page ten, section seven, by striking out '7.1.';
On page twelve, section twelve, by striking out '12.1.';
On page sixteen, subdivision 13.5.d, at the end of the second
line, following the word 'least', by striking the word 'five' and
inserting in lieu thereof the words 'four voting';
And,
On page sixteen, by striking subsection 13.6. in its entirety.
§64-9-16. Secretary of State.
The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under the authority of section three, article three, chapter thirty-nine-
a of this code, modified by the Secretary of State to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the ninth day of October, two
thousand seven, relating to the Secretary of State (use of digital
signatures, state certificate authority and state repository, 153
CSR 30), is authorized with the following amendment:
On page two, subsection 3.3., by striking out the words 'and
approved by';
On page two, subsection 3.3., after the word 'Technology', by
changing the comma to a period, striking out the words 'through its
chief technology officer or his or her designee,' and inserting in
lieu thereof the words 'The specifications must be approved by the
Office of Technology';
On page four, subsection 6.2., after the word 'Technology', by
striking out the comma and the words 'through its chief technology
officer or his or her designee';
On page four, subdivision 7.1.h., after the word 'The' by
inserting the words 'Secretary of State may ask or enter into an
agreement with the';
On page four, subdivision 7.1.h., after the word 'Technology',
by striking out the comma and the words 'through its chief
technology officer or his or her designee, shall' and inserting in
lieu thereof the word 'to';
On page four, subdivision 7.1.h., after the word 'and' by
inserting the word 'to';
On page five, subsection 7.3., by striking out the words
'Office of Technology, through its chief technology officer or his
or her designee,' and by inserting the words 'Secretary of State';
On page five subsection 7.3., by striking out the words 'for
a term no less that one year';
On page five subsection 7.3., after the period, by inserting
the words 'The Secretary of State may defer to the Office of
Technology his or her authority to initiate the procurement
process.';
On page five, subsection 7.4., after the word 'The', by
inserting the words 'Secretary of State may ask or enter into an
agreement with the';
On page five, subsection 7.4., by striking out the word
'shall' and inserting in lieu thereof the word 'to';
On page five, subsection 7.4., by striking out the words
'Secretary of State' and inserting in lieu thereof the words 'him
or her';
And,
On page five, subdivision 7.5.a., by striking out the words
'The Office of Technology, through its chief technology officer or
his or her designee, shall inform the Secretary of State' and
insert in lieu thereof the words 'The Secretary of State may ask or enter into an agreement with the Office of Technology to inform him
or her'.
§64-9-17. Board of Examiners for Speech-Language Pathology and
Audiology.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of June, two thousand seven, authorized under
the authority of section ten, article thirty-two, chapter thirty of
this code, modified by the Board of Examiners for Speech-Language
Pathology and Audiology to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on
the fifth day of December, two thousand seven, relating to the
Board of Examiners for Speech-Language Pathology and Audiology
(licensure of speech-pathology and audiology, 29 CSR 1), is
authorized with the following amendment:
On page two, section 6.1.b., by striking the word 'five' and
reinserting in lieu thereof the word, 'ten';
And,
On page twenty, section 13.11., after the word 'licensure' and
the period, by striking out the remainder of the rule.
(b) The legislative rule relating to the Board of Examiners
for Speech-Language Pathology and Audiology (Code of Ethics, 29 CSR
5), is authorized as follows:
'29 CSR 5
West Virginia Board of Examiners for Speech-Language Pathology and Audiology Code of Ethics
§29-5-1. General.
1.1. Scope. - This legislative rule establishes standards of
conduct speech-language pathologist or audiologist in the State of
West Virginia.
1.2. Authority. -- W.Va. Code §30-32-10
1.3. Filing Date. --
1.4. Effective Date. --
1.5. Preamble: The preservation of the highest standards of
integrity and ethical principles is vital to the responsible
discharge of obligations in the professions of Speech-Language
Pathology and Audiology. This code of Ethics sets forth the
fundamental principles and rules considered essential to this
purpose. Every individual who is licensed by this Board as a
Professional, Provisional or a Speech or Audiology Assistant.
§29.5.2. Licensed by this Board as a Professional, Provisional or
a Speech or Audiology Assistant.
2.1. Any action that violates the spirit and purpose of this
Code shall be considered unethical. Failure to specify any
particular responsibility or practice in this Code of Ethics shall
not be construed as denial of the existence of such
responsibilities or practices.
2.2. The fundamentals of ethical conduct are described by
Principles of Ethics and Rules of Ethics as they relate to responsibility to persons served, to the public, and to the
professions of speech-language pathology and audiology.
2.3. Principles of Ethics, aspirational and inspirational in
nature, form the underlying moral basis for the Code of Ethics.
Licensees shall observe these principles as affirmative obligations
under all conditions of professional activity. Rules of Ethics are
specific statements of minimally acceptable professional conduct or
of prohibitions and are applicable to all licensees.
2.4. Principle of Ethics I
2.4.a. Licensees shall honor their responsibility to hold
paramount the welfare of persons they serve professionally.
2.4.b. Rules of Ethics
2.4.b.1. Licensees shall provide all services competently.
2.4.b.2. Licensees shall use every resource, including
referral when appropriate, to ensure that high-quality service is
provided.
2.4.b.3. Licensees shall not discriminate in the delivery of
professional services on the basis of race ethnicity, gender, age,
religion, national origin, sexual orientation, or disability.
2.4.b.4. Licensees shall fully inform the persons they serve
of the nature and possible effects of services rendered and
products dispensed.
2.4.b.5. Licensees shall evaluate the effectiveness of
services rendered and of products dispensed and shall provide services or dispense products only when benefit can be reasonably
expected.
2.4.b.6. Licensees shall not guarantee the results of any
treatment or procedure, directly or by implication; however, they
may make a reasonable statement of prognosis.
2.4.b.7. Licensees shall not evaluate or treat speech,
language, or hearing disorders solely by correspondence.
2.4.b.8. Licensees shall maintain adequate records of
professional services rendered and products dispensed and shall
allow access to these records when appropriately authorized.
2.4.b.9. Licensees shall not reveal, without authorization,
any professional or personal information about the person served
professionally, unless required by law to do so, or unless doing so
is necessary to protect the welfare of the person or of the
community.
2.4.b.10. Licensees shall not charge for services not
rendered, nor shall they misrepresent, in any fashion, services
rendered or products dispensed.
2.4.b.11. Licensees shall use persons in research or as
subjects of teaching demonstrations only with their informed
consent.
2.4.b.12. Licensees whose professional services are adversely
affected by substance abuse or other health-related conditions
shall seek professional assistance and, where appropriate, withdraw from the affected areas of practice.
2.5. Principles of Ethics II
2.5.a. Licensees shall honor their responsibility to achieve
and maintain the highest level of professional competence.
2.5.b. Rules of Ethics
2.5.b.1. Licensees shall engage in the provision of clinical
services only when they hold the appropriate license or when they
are in the licensure process and are supervised by an individual
who holds the appropriate license.
2.5.b.2. Licensees shall engage in only those aspects of the
professions that are within the scope of their competence,
considering their level of education, training, and experience.
2.5.b.3. Licensees shall continue their professional
development throughout their careers.
2.5.b.4. Licensees shall delegate the provision of clinical
services only to persons who are licensed or to persons in the
education or licensure process who are appropriately supervised.
The provision of support services may be delegated to persons who
are neither licensed nor in the licensure process only when a
license holder provides appropriate supervision.
2.5.b.5. Licensees shall prohibit any of their professional
staff from providing services that exceed the staff member's
competence, considering the staff member's level of education,
training, and experience.
2.5.b.6. Licensees shall ensure that all equipment used in
the provision of services is in proper working order and is
properly calibrated.
2.6. Principle of Ethics III
2.6.a. Licensees shall honor their responsibility to the
public by promoting public understanding of the professions, by
supporting the development of services designed to fulfill the
unmet needs of the public, and by providing accurate information in
all communications involving any aspect of the professions.
2.6.b. Rules of Ethics
2.6.b.1. Licensees shall not misrepresent their credentials,
competence, education, training, or experience.
2.6.b.2. Licensees shall not participate in professional
activities that constitute a conflict of interest.
2.6.b.3. Licensees shall not misrepresent diagnostic
information, services rendered, or products dispensed or engage in
any scheme or artifice to defraud in connection with obtaining
payment or reimbursement for such services or products.
2.6.b.4. Licensees' statements to the public shall provide
accurate information about the nature and management of
communication disorders, about the professions, and about
professional services.
2.6.b.5. Licensees' statements to the public -- advertising,
announcing, and marketing their professional services, reporting research results, and promoting products -- shall adhere to
prevailing professional standards and shall not contain
misrepresentations.
2.7. Principle of Ethics IV
2.7.a. Licensees shall honor their responsibilities to the
professions and their relationships with colleagues, students, and
members of allied professions. Licensees shall uphold the dignity
and autonomy of the professions, maintain harmonious
interprofessional and intraprofessional relationships, and accept
the professions' self-imposed standards.
2.7.b. Rules of Ethics
2.7.b.1. Licensees shall prohibit anyone under their
supervision from engaging in any practice that violates the Code of
Ethics.
2.7.b.2. Licensees shall not engage in dishonesty, fraud,
deceit, misrepresentation, or any form of conduct that adversely
reflects on the professions or on the licensee's fitness to serve
persons professionally.
2.7.b.3. Licensees shall assign credit to only those
licensees who have contributed to a publication, presentation, or
product. Credit shall be assigned in proportion to the
contribution and only with the contributor's consent.
2.7.6.4. Licensee's statements to colleagues about
professional services, research results, and products shall adhere to prevailing professional standards and shall contain no
misrepresentations.
2.7.b.5. Licensees shall not provide professional services
without exercising independent professional judgment, regardless of
referral source or prescription.
2.7.b.6. Licensees shall not discriminate in their
relationships with colleagues, students, and members of allied
professions on the basis of race or ethnicity, gender, age,
religion, national origin, sexual orientation, or disability.
2.7.b.7. Licensees who have reason to believe that the Code
of Ethics has been violated shall inform the West Virginia Board of
Examiners.
2.7.b.8. Licensees shall cooperate fully with the West
Virginia Board of Examiners in its investigation and adjudication
of matters related to this Code of Ethics.'.
§64-9-18. Board of Veterinary Medicine.
The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section four, article ten, chapter thirty of this
code, modified by the Board of Veterinary Medicine to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the fourth day of January, two
thousand eight, relating to the Board of Veterinary Medicine (the
registration of veterinary technicians, 26 CSR 3), is authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 349, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 349) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 349) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 466, Authorizing Water Development
Authority to administer Dam Safety Rehabilitation Revolving Fund
Loan Program.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 476, Creating State
Employee Sick Leave Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5-5-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that the said code be amended by adding
thereto a new section, designated §5-5-6, all to read as follows:
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
For the purposes of this article:
(a) "Eligible employee" means:
(1) Any regular full-time employee of the state or any
spending unit of the state who is eligible for membership in any
state retirement system of the State of West Virginia or other
retirement plan authorized by the state: Provided, That the
mandatory salary increase required by this article does not apply
to any employee of the state whose compensation is fixed by statute
or by statutory schedule other than employees described in this
section. Clerks, deputy clerks and magistrate assistants of
magistrate courts are eligible for the incremental salary increases
provided in this article with the increases to be allowable in
addition to the maximum salaries and compensation for the employee
offices under the magistrate court system statutes of article one,
chapter fifty of this code. Members of the Board of Parole are
eligible for the incremental salary increases provided in this
article with the increases to be allowable in addition to the
salaries and compensation provided in section two-a, article seven,
chapter six of this code. This article may not be construed to
mandate an increase in the salary of any elected or appointed officer of the state;
(2) Any classified employee as defined in section two, article
nine, chapter eighteen-b of this code who is an employee of a state
institution of higher education, the Higher Education Policy
Commission or the Council for Community and Technical College
Education; or
(3) Any full-time faculty member as defined in section one,
article eight, chapter eighteen-b of this code who is an employee
of a state institution of higher education, the Higher Education
Policy Commission or the West Virginia Council for Community and
Technical College Education.
(b) "Years of service" means full years of totaled service as
an employee of the State of West Virginia. For full-time faculty
as defined in this section, each nine or more months of contracted
employment during a fiscal year equals one full year of service;
and
(c) "Spending unit" means any state office, department,
agency, board, commission, institution, bureau or other designated
body authorized to hire employees.
§5-5-6. Payment for unused sick leave.
(a) Every eligible employee, as defined in section one of this
article, who was hired prior to the first day of July, two thousand
one, and who has accumulated at least sixty-five days of unused
sick leave may be paid, at his or her option, for unused sick leave in an amount of days as designated by the employee not to exceed
the number of sick leave days that would reduce an employee's sick
leave balance to less than fifty days. The employee shall be paid
at a rate equal to one quarter of their usual rate of daily pay
during that calendar year. The "daily rate of pay" of an employee
paid a monthly salary is calculated by multiplying the monthly
salary by twelve and dividing that number into the number of
workdays for that calendar year. As used in this section,
"workday" does not include weekends. Any payment for unused sick
leave may not be a part of final average salary computation.
(b) Payment for unused sick leave may be made only once per
fiscal year on either the pay day immediately following the first
full pay period in July or the first full pay period in December.
Payments shall be made out of the fund established in subsection
(d) of this section.
(c) Any eligible employee opting to receive payment in
exchange for unused sick leave must contract, in a form to be
prescribed by the Department of Administration, agreeing to
reimburse the fund for the amount exchanged plus twelve percent
annum if the employee elects to separate from employment within
sixty months of the date of the exchange pursuant to subsection (a)
of this section. The Department of Administration shall pursue
collection of the obligation, either by itself, or by contracting
with a collection agency. For purposes of this section, "separation" does not include separation from employment by death
or retirement, but does refer to any other manner in which
employment may be terminated.
(d) Payments shall be made in the order that eligible
employees apply for the payments so long as funds are available.
In the event the fund is insufficient to pay all employees who have
applied for payment in a fiscal year, employees who do not receive
payment are eligible for payment in the next fiscal year, are not
required to reapply and shall receive payment in the order in which
they first applied, unless the employee chooses to withdraw the
application prior to the next fiscal year.
(e) Effective the first day of July, two thousand nine, there
is created a special revenue account within the State Treasury to
be known as the State Employee Sick Leave Fund which shall consist
of moneys appropriated by the Legislature and shall be
administrated by the Secretary of the Department of Administration.
(f) The secretary shall adopt procedural rules pursuant to
article three, chapter twenty-nine-a of this code to implement the
provisions of this section. The rules shall include, but not be
limited to, provisions for the application and the application
process.
(g) Each spending unit, as defined in section one of this
article, shall verify to the secretary an employee is eligible for
payment under this section and shall verify the number of unused sick leave days for all employees at least once per year. The
secretary shall maintain sick leave records for all spending units.
All sick leave days that an employee is paid for as provided in
this section shall be deducted from the employee's sick leave
balance by the secretary, and the secretary shall verify to each
spending unit the amount of days that have been deducted from an
employee's sick leave balance. An employee shall not be permitted
to reacquire any sick leave days that he or she received payment
for under the provisions of this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 476--A Bill to amend and
reenact §5-5-1 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated §5-
5-6, all relating to public employee benefits generally; providing
that members of the parole board are eligible for incremental
salary increases; state eligible employees hired prior to the first
day of July, two thousand one, to be paid for unused sick leave
days in excess of fifty days once per year; creating the State
Employee Sick Leave Fund; naming the Secretary of the Department of
Administration as administrator of the fund; and authorizing
rulemaking to implement the provisions of this section.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 476, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 476) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 476) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 492,
Eliminating part-time prosecutors.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-4a. Authorizing the option of full-time status for part-time
prosecuting attorneys.
(a) Notwithstanding the provisions of section four of this
article to the contrary, on or before the first day of January, two
thousand nine, a county may not have a part-time prosecutor. The county commissions of counties in Class VI through X shall then
compensate all prosecuting attorneys that have changed to full-time
by virtue of this section at the same rate of compensation
established for a prosecuting attorney in a Class V county:
Provided, That, upon mutual agreement of the prosecuting attorney
and the county commission, the prosecuting attorney may choose to
remain a part-time prosecuting attorney.
(b) If, after the first day of January, two thousand nine,
during the course of a term of office, pursuant to subsection (a)
of this section, any prosecutor who becomes full-time or chooses to
remain part-time who believes that the responsibilities of his or
her office either no longer requires a full-time position or
believes that the duties of the part-time position have become
full-time, may, by mutual agreement with the county commission,
either return to part-time status or change to full-time status:
Provided, That, if the decision to change to full-time or part-time
status is made during an election year, the decision must be by
mutual agreement between the county commission and the prosecutor-
elect: Provided, however, That any prosecutor who returns to part-
time status shall, thereafter, be compensated at the rate of
compensation set forth in section four of this article for a
prosecuting attorney of his or her class county and any prosecutor
that changes to full-time status shall, thereafter, be compensated
at the same rate of compensation established for a prosecuting attorney in a Class V county.
(c) If, after the first day of January, two thousand nine, any
prosecutor or prosecutor elect desires to change to full-time
status and the county commission objects to such change due to an
alleged financial condition of the county, then either party may
request the state auditor's office to examine the county's
financial condition and certify whether or not there are sufficient
funds to support a full-time position. The state auditor shall
then, within ninety days of such request, certify whether or not
there are sufficient funds available to support a full-time
prosecutor in the county. If the state auditor certifies that
there are sufficient funds available, then the prosecutor or
prosecutor elect must be changed to full-time status and be
compensated at the same rate of pay as a prosecutor in a Class V
county.
(d) Nothing in this section may be construed to prohibit a
part-time prosecuting attorney from remaining part-time with the
mutual agreement of the county commission.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 492--A Bill
to amend and reenact §7-7-4a of the Code of West Virginia, 1931, as
amended, relating to prosecuting attorneys; eliminating part-time prosecutors; allowing prosecutors to remain as part-time
prosecutors, upon mutual agreement of county commissions and
prosecutors; authorizing an increase in salary for a part-time
prosecutor who becomes a full-time prosecutor; allowing prosecutors
and counties to mutually agree to a change in part-time or full-
time status; providing for a readjustment in salary if full-time
prosecutor returns to part-time status; providing a mechanism for
review of county finances by the state auditor to confirm the
availability of county funds to support a full-time prosecutor;
exceptions; and effective dates.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 492, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Sypolt--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 492) passed with its House of
Delegates amended 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, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Sypolt--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 492) takes effect July 1,
2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 553, Creating Permitting
and Licensing Information Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5A-6A-1, §5A-6A-2,
§5A-6A-3, §5A-6A-4, §5A-6A-5, §5A-6A-6, §5A-6A-7, §5A-6A-8 and §5A-
6A-9, all to read as follows:
ARTICLE 6A. PERMITTING AND LICENSING INFORMATION ACT.
§5A-6A-1. Short title.
Short title. -- This article may be known and cited as the
Permitting and Licensing Information Act.
§5A-6A-2. Legislative findings.
(a) The Legislature finds that:
(1) Persons conducting business activities in this state are
required to obtain permits and licenses from various agencies that
regulate those activities;
(2) The efficiency of the permitting and licensing process is
an integral component of effective government, business development
and public participation; and
(3) It is in the public interest that the permitting and
licensing process for business activities should be efficient and streamlined.
(b) Therefore, the Legislature declares that the permitting
and licensing process for business activities be facilitated and
coordinated by the Governor's Office of Technology.
§5A-6A-3. Definitions.
For the purposes of this article, the following words have the
meaning assigned unless the context indicates otherwise:
(1) "Agency" means any board, department, division, authority,
commission or other public entity that requires a permit or license
to be obtained from the entity to conduct a business activity in
this state.
(2) "Office" means the Governor's Office of Technology.
(3) "Permit" means any permit, license, authorization,
certification, registration or other approval required to perform
a business activity.
§5A-6A-4. Permit and license information authority.
(a) The Legislature hereby authorizes the Governor's Office of
Technology to facilitate and coordinate the permitting and
licensing process for business activities in this state.
(b) The office has the following authority to:
(1) Establish a central permit and license information
repository;
(2) Determine the type of information that each agency must
submit in order to provide adequate information to the public regarding the permits and licenses needed for a particular business
activity;
(3) Require state agencies and local agencies to provide their
permit and license information, including the type and purpose of
all permits and licenses the agency issues;
(4) Create an online permitting and licensing program
monitored through the state web page; and
(5) Make recommendations to the Governor and the Legislature
concerning the functionality of the central permit and license
information repository to ensure its accessibility and reliability
for use by agencies and the public.
§5A-6A-5. Duty of agencies to provide permitting and licensing
information; development of permitting and licensing
information repository.
(a) On or before the first day of October, two thousand eight,
the office shall provide notice to all agencies that beginning on
the first day of February, two thousand nine, that the agency shall
submit licensing and permitting information to the office.
(b) On or before the first day of December, two thousand
eight, the office shall establish, and provide to agencies that
issue permits and licenses, the procedures and methods for
submission of required permitting and licensing information for the
permitting and licensing information repository.
(c) On or before the first day of February, two thousand nine, an agency that issues permits and licenses shall submit the
required permitting and licensing information to the office in
accordance with the procedures and methods established in this
article.
(d) On or before the first day of July, two thousand nine, the
office will create an internet-based, publicly accessible
permitting and licensing information repository, in coordination
with the state's e-government initiatives, that contains the
following:
(1) A comprehensive detailed listing of the types of permits
and licenses required for specific business activities;
(2) The purposes of the permits and licenses; and
(3) The agencies responsible for issuance of the permits and
licenses, including the agency contact information.
(e) The permitting and licensing information repository shall
allow individuals to obtain a listing of the types of permits and
licenses required for specific business activities.
§5A-6A-6. Requirements for adopted, revised or terminated
permitting or licensing information.
No later than thirty days prior to the effective date of the
implementation, revision or termination of any permitting or
licensing requirement, an agency, subject to the provisions of this
article, is required to provide to the office the current
information relating to a permit or license.
§5A-6A-7. Reporting requirements.
Annually, by the thirtieth day of December, the office shall
report to the Joint Committee on Government and Finance and the
Governor the status of the permitting and licensing information
repository and identify any agency that has failed to comply with
the requirements of this article.
§5A-6A-8. Rule-making authority.
The office may propose rules for legislative approval pursuant
to the provisions of article three, chapter twenty-nine-a of this
code to effectuate the purpose and provisions of this article.
§5A-6A-9. Limitation.
Although this article creates a central permitting and
licensing information repository, each agency shall continue to
administer its own permitting and licensing procedures and charge
and collect the appropriate fees.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 553--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §5A-6A-1, §5A-6A-2, §5A-6A-3, §5A-6A-4, §5A-6A-
5, §5A-6A-6, §5A-6A-7, §5A-6A-8 and §5A-6A-9, all relating to
establishing the Permitting and Licensing Information Act;
authorizing the Governor's Office of Technology to establish a permitting and licensing information system; providing legislative
findings; definitions; establishing authority and duties of the
office; creating duty for agencies to provide permitting and
licensing information; reporting requirements; granting rule-making
authority; and providing for limitations of the article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 553, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 553) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 593,
Clarifying library funding obligation from local share.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-9A-11 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-11. Computation of local share; appraisal and assessment of
property; public library support.
(a) On the basis of each county's certificates of valuation as
to all classes of property as determined and published by the
assessors pursuant to section six, article three, chapter eleven of
this code for the next ensuing fiscal year in reliance upon the
assessed values annually developed by each county assessor pursuant
to the provisions of articles one-c and three of said chapter, the
state board shall for each county compute by application of the
levies for general current expense purposes, as defined in section two of this article, the amount of revenue which the levies would
produce if levied upon one hundred percent of the assessed value of
each of the several classes of property contained in the report or
revised report of the value, made to it by the Tax Commissioner as
follows:
(1) The state board shall first take ninety-five percent of
the amount ascertained by applying these rates to the total
assessed public utility valuation in each classification of
property in the county; and
(2) The state board shall then apply these rates to the
assessed taxable value of other property in each classification in
the county as determined by the Tax Commissioner and shall deduct
therefrom five percent as an allowance for the usual losses in
collections due to discounts, exonerations, delinquencies and the
like. All of the amount so determined shall be added to the
ninety-five percent of public utility taxes computed as provided in
subdivision (1) of this subsection and this total shall be further
reduced by the amount due each county assessor's office pursuant to
the provisions of section eight, article one-c, chapter eleven of
this code and this amount shall be the local share of the
particular county.
As to any estimations or preliminary computations of local
share required prior to the report to the Legislature by the Tax
Commissioner, the state shall use the most recent projections or estimations that may be available from the tax department for that
purpose.
(b) Commencing with the two thousand thirteen fiscal year and
each fiscal year thereafter Effective the first day of July, two
thousand thirteen, subsection (a) of this section is void and local
share shall be calculated in accordance with the following:
(1) The state board shall for each county compute by
application of the levies for general current expense purposes, as
defined in sections two and two-a of this article, the amount of
revenue which the levies would produce if levied upon one hundred
percent of the assessed value calculated pursuant to section
five-b, article one-c, chapter eleven of this code;
(2) Five percent shall be deducted from the revenue calculated
pursuant to subdivision (1) of this subsection as an allowance for
the usual losses in collections due to discounts, exonerations,
delinquencies and the like; and
(3) The amount calculated in subdivision (2) of this
subsection shall further be reduced by the sum of money due each
assessor's office pursuant to the provisions of section eight,
article one-c, chapter eleven of this code and this reduced amount
shall be the local share of the particular county.
(c) Whenever in any year a county assessor or a county
commission shall fail or refuse fails or refuses to comply with the
provisions of this section in setting the valuations of property for assessment purposes in any class or classes of property in the
county, the State Tax Commissioner shall review the valuations for
assessment purposes made by the county assessor and the county
commission and shall direct the county assessor and the county
commission to make corrections in the valuations as necessary so
that they shall comply with the requirements of chapter eleven of
this code and this section and the Tax Commissioner shall enter the
county and fix the assessments at the required ratios. Refusal of
the assessor or the county commission to make the corrections
constitutes grounds for removal from office.
(d) For the purposes of any computation made in accordance
with the provisions of this section, in any taxing unit in which
tax increment financing is in effect pursuant to the provisions of
article eleven-b, chapter seven of this code, the assessed value of
a related private project shall be the base-assessed value as
defined in section two of said article.
(e) For purposes of any computation made in accordance with
the provisions of this section, in any county where the county
board of education has adopted a resolution choosing to use the
provisions of the Growth County School Facilities Act set forth in
section six-f, article eight, chapter eleven of this code,
estimated school board revenues generated from application of the
regular school board levy rate to new property values, as that term
is designated in said section, may not be considered local share funds and shall be subtracted before the computations in
subdivisions (1) and (2), subsection (a) of this section or in
subdivisions (2) and (3), subsection (b) of this section, as
applicable, are made.
(f) The Legislature finds that public school systems
throughout the state provide support in varying degrees to public
libraries through a variety of means including budgeted
allocations, excess levy funds and portions of their regular school
board levies as may be provided by special act. A number of public
libraries are situated on the campuses of public schools and
several are within public school buildings serving both the
students and public patrons. To the extent that public schools
recognize and choose to avail the resources of public libraries
toward developing within their students such legally recognized
elements of a thorough and efficient education as literacy,
interests in literature, knowledge of government and the world
around them and preparation for advanced academic training, work
and citizenship, public libraries serve a legitimate school purpose
and may do so economically. For the purposes of any computation
made in accordance with the provisions of this section, the library
funding obligation on the regular school board levies which is
created by a special act and is due and payable from the levy
revenues to a library shall be paid from that portion of the county
school board's discretionary retainage, which is hereby defined as the amount by which the regular school board levies which exceeds
the proportion determined to be local share as determined
hereunder. If the library funding obligation which is created by
a special act and is due and payable to a library is greater than
the amount available in excess of the county's local share county
school board's discretionary retainage, the library funding
obligation created by the special act is amended and is reduced to
the amount which is available, of the discretionary retainage,
notwithstanding any provisions of the special act to the contrary.
Any excess of the discretionary retainage over the library funding
obligation shall be available for expenditure by the county board
in its discretion for its properly budgeted purposes.
(g) It is the intent of the Legislature that whenever a
provision of subsection (f) of this section is contrary to any
special act of the Legislature which has been or may in the future
be enacted by the Legislature that creates a library funding
obligation on the regular school board levy of a county, subsection
(f) of this section controls over the special act. Specifically,
the special acts which are subject to said subsection upon the
enactment of this section during the two thousand seven regular
session of the Legislature include:
(1) Enrolled Senate Bill No. 11, passed on the twelfth day of
February, one thousand nine hundred seventy, applicable to the
Berkeley County Board of Education;
(2) Enrolled House Bill No. 1352, passed on the seventh day of
April, one thousand nine hundred eighty-one, applicable to the
Hardy County Board of Education;
(3) Enrolled Committee Substitute for House Bill No. 2833,
passed on the fourteenth day of March, one thousand nine hundred
eighty-seven, applicable to the Harrison County Board of Education;
(4) Enrolled House Bill No. 161, passed on the sixth day of
March, one thousand nine hundred fifty-seven, applicable to the
Kanawha County Board of Education;
(5) Enrolled Senate Bill No. 313, passed on the twelfth day of
March, one thousand nine hundred thirty-seven, as amended by
Enrolled House Bill No. 1074, passed on the eighth day of March,
one thousand nine hundred sixty-seven, and as amended by Enrolled
House Bill No. 1195, passed on the eighteenth day of January, one
thousand nine hundred eighty-two, applicable to the Ohio County
Board of Education;
(6) Enrolled House Bill No. 938, passed on the twenty-eighth
day of February, one thousand nine hundred sixty-nine, applicable
to the Raleigh County Board of Education;
(7) Enrolled House Bill No. 398, passed on the first day of
March, one thousand nine hundred thirty-five, applicable to the
Tyler County Board of Education;
(8) Enrolled Committee Substitute for Senate Bill No. 450,
passed on the eleventh day of March, one thousand nine hundred ninety-four, applicable to the Upshur County Board of Education;
and
(9) Enrolled House Bill No. 2994, passed on the thirteenth day
of March, one thousand nine hundred eighty-seven, applicable to the
Wood County Board of Education.
(h) Notwithstanding any provision of any special act set forth
in subsection (g) of this section to the contrary, the county board
of any county with a special act creating a library obligation out
of the county's regular school levy revenues may transfer that
library obligation so that it becomes an a continuing obligation of
its excess levy revenues instead of an obligation of its regular
school levy revenues, subject to the following:
(1) If a county board chooses to transfer the library
obligation pursuant to this subsection, the library funding
obligation shall remain an obligation of the regular school levy
revenues until after the fiscal year in which a vote on an the
excess levy occurs is effective or would have been effective if it
had been passed by the voters;
(2) If a county board chooses to transfer the library
obligation pursuant to this subsection, the county board shall
include the funding of the public library obligation in the same
amount as its library funding obligation which exists or had
existed on its regular levy revenues as the purpose or one of the
purposes for the excess levy to be voted on as a specifically described line item of the excess levy: Provided, That if the
county board has transferred the library obligation to the excess
levy and the excess levy fails to be passed by the voters or the
excess levy passes and thereafter expires upon the time limit for
continuation as set forth in section sixteen, article eight,
chapter eleven of this code, then in any subsequent excess levy
which the county board thereafter submits to the voters the library
funding obligation again shall be included as one of the purposes
of the subsequent excess levy as a specifically described line item
of the excess levy;
(3) If a county board chooses to transfer the library
obligation pursuant to this subsection, regardless of whether or
not the excess levy passes, effective the fiscal year after the
fiscal year in which a vote on the excess levy occurs, is effective
or would have been effective if it had been passed by the voters,
a county's library obligation on its regular levy revenues is void
notwithstanding any provision of the special acts set forth in
subsection (g) of this section to the contrary; and
(4) Nothing in subdivision (3) of this subsection prohibits a
county board from funding its public library obligation
voluntarily.;
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 593, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 593) 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 Com. Sub. for S. B. No. 593) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 595, Establishing education goals and
objectives for 2020.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18B-1-1, §18B-1-1b and §18B-1-1c of the Code of West
Virginia, 1931, as amended, be repealed; that §18B-1A-1 and
§18B-1A-2 of said code be repealed; that §18B-1B-8 and §18B-1B-9 of
said code be repealed; that §18B-3B-1 and §18B-3B-2 of said code be
repealed; that §18B-11-5 of said code be repealed; that §18-1-4 of
said code be amended and reenacted; that §18-2E-5c of said code be
amended and reenacted; that §18B-1-1a of said code be amended and reenacted; that said code be amended by adding thereto a new
article, designated §18B-1D-1, §18B-1D-2, §18B-1D-3, §18B-1D-4,
§18B-1D-5, §18B-1D-6, §18B-1D-7 and §18B-1D-8; and that said code
be amended by adding thereto a new section, designated §18B-14-9,
all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR
EDUCATION.
§18-1-4. Vision 2020: An Education Blueprint for Two Thousand
Twenty.
(a) The Governor, the Legislature, the state board and the
people of West Virginia agree that the education of their children
is of utmost importance to the future well-being of the state and
that the purpose of enacting education laws and providing funding
to support a system of free schools is to assure that all of our
children have every opportunity to secure an education which is
thorough and is provided in an efficient manner. The Governor, the
Legislature, the state board and the people of West Virginia
further agree that improvements are needed in the education system
of West Virginia if these objectives are to be met.
(b) Therefore, the Governor, the Legislature, the state board
and the people of West Virginia have established goals for
themselves which are measurable and achievable through the combined
efforts of the government, the school system and the people through an increased focus on the needs of children. These goals are:
(a) This section, together with section one-a, article one,
chapter eighteen-b of this code and article one-d of said chapter,
shall be known as and may be cited as Vision 2020: An Education
Blueprint for Two Thousand Twenty.
(b) For the purposes of this section:
(1) "Goals" means those long-term public purposes which are
the desired end result and only may include those items listed in
subsection (e) of this section;
(2) "Objectives" means the ends to be accomplished or attained
within a specified period of time for the purpose of meeting the
established goals; and
(3) "Strategies" means specific activities carried out by the
public education system which are directed toward accomplishing
specific objectives.
(c) The Legislature finds that:
(1) The measure of a thorough and efficient system of
education is whether students graduate prepared to meet the
challenges of the future as contributing members of society and
that these challenges change, becoming ever more complex and
involving a global context more than at any other time in the
history of our nation;
(2) The state recently has embraced and is implementing the
Partnership for 21st Century Skills model for teaching and learning including six key elements (core subjects, 21st Century content,
learning and thinking skills, information and communications
technology literacy, life skills and 21st Century assessments) to
help better prepare students for the challenges of the 21st
Century;
(3) Published national studies by several organizations
routinely examine various elements of state education systems and
selected underlying socioeconomic variables and rate and rank West
Virginia and the other states, the District of Columbia and the
territories based on the measurement systems and priorities
established by the organizations, and these measurement systems and
priorities change;
(4) While the state should take pride in studies that show
West Virginia is among the leaders in several of its efforts and is
making progress, its students often outperforming expectations
based on typical indicators of the likelihood for student success,
such as the income and education levels of their parents, it should
also recognize that the state must do even more to ensure that high
school graduates are fully prepared for post-secondary education or
gainful employment;
(5) Therefore, the purpose of this section is to provide for
the establishment of a clear plan that includes goals, objectives,
strategies, indicators and benchmarks to help guide the state's
policymakers on the continuous development of the state's education system for the 21st Century.
(d) As part of Vision 2020: An Education Blueprint for Two
Thousand Twenty, the state board shall establish a plan in
accordance with the provisions of this section for submission to
and consideration by the Process for Improving Education Council
pursuant to section five-c, article two-e of this chapter. The
plan shall include only the goals, objectives, strategies,
indicators and benchmarks for public education set forth in this
section and that meet the requirements of this section. To add
clarity and avoid confusion, the goals for public education set
forth in the plan pursuant to this section are the exclusive goals
for public education. The plan shall include:
(1) The goals set forth in this section and no other goals;
(2) At least the objectives set forth in this section and
specified periods of time for achieving those objectives and any
other objectives that may be included in the plan;
(3) Strategies for achieving the specific objectives;
(4) Indicators for measuring progress toward the goals and
objectives established in this section; and
(5) Benchmarks for determining when the goals and objectives
have been achieved.
(e) The plan shall include the following list of exclusive
goals for the public education system in West Virginia:
(1) Academic achievement according to national and international measures will exceed national and international
averages. These national and international measures should include
scores on assessments such as the National Assessment of
Educational Progress (NAEP), the ACT, the SAT and the Programme for
International Assessment (PISA);
(2) The public education system will prepare fully all
students for post-secondary education or gainful employment;
(3) All working-age adults will be functionally literate;
(4) The public education system will maintain and promote the
health and safety of all students and will develop and promote
responsibility, citizenship and strong character in all students;
and
(5) The public education system will provide equitable
education opportunity to all students.
(f) The plan also shall include at least the following policy-
oriented objectives:
(1) Rigorous 21st Century curriculum and engaging instruction
for all students. -- All students in West Virginia public schools
should have access to and benefit from a rigorous 21st Century
curriculum that develops proficiency in core subjects, 21st Century
content, learning skills and technology tools. These students also
should have that curriculum delivered through engaging,
research-based instructional strategies that develop deep
understanding and the ability to apply content to real-world situations;
(2) A 21st Century accountability and accreditation system. --
The prekindergarten through twelve education system should have a
public accrediting system that: (i) Holds local school districts
accountable for the student outcomes the state values; and (ii)
provides the public with understandable accountability data for
judging the quality of local schools. The outcomes on which the
system is based should be rigorous and should align with national
and international standards such as the National Assessment of
Educational Progress (NAEP), the ACT, the SAT and the Programme for
International Assessment (PISA). The broad standards established
for these outcomes should include a focus on: (A) Mastery of basic
skills by all students; (B) closing the achievement gap among
student subgroups; and (C) high levels of proficiency in a wide
range of desired 21st Century measures and processes. The system
for determining school and district accreditation should include
school and district self-analysis and generate appropriate
research-based strategies for improvement. It also should allow
opportunities to create innovative approaches to instructional
delivery and design. Thus, the system will incorporate processes
for encouraging innovation, including streamlined applications for
waivers to state board policy, financial support for successful
initiatives and recognition of those practices that can be brought
to a district or statewide scale. The primary goal of the accreditation system is to drive school improvement. This 21st
Century accountability and accreditation system also should include
the methods of addressing capacity set forth in section five,
article two-e of this chapter;
(3) A statewide balanced assessment process. -- State,
district, school and classroom decisionmaking should be grounded in
21st Century balanced assessment processes that reflect national
and international rigorous performance standards and examine
student proficiency in 21st Century content, skills and technology
tools. A balanced assessment system includes statewide summative
assessments, local benchmark assessments and classroom assessments
for learning;
(4) A personnel allocation, licensure and funding process that
aligns with the needs of 21st Century school systems and is
supported by a quality coordinated professional development
delivery system. -- Increased accountability demands, as well as
the focus on 21st Century learning, require a reexamination of
traditional approaches to personnel allocation, licensure and
funding. Creating schools of the 21st Century requires new
staffing roles and staffing patterns. It also requires ongoing
professional development activities focused on enhancing student
achievement and achieving specific goals of the school and district
strategic plans. Thus, schools should have the ability to access,
organize and deliver high quality embedded professional development that provides staff with in-depth sustained and supported learning.
Effective school improvement should allow opportunity for staff to
collectively learn, plan and implement curricular and instructional
improvements on behalf of the students they serve;
(5) School environments that promote safe, healthy and
responsible behavior and provide an integrated system of student
support services. -- Each school should create an environment
focused on student learning and one where students know they are
valued, respected and safe. Furthermore, the school should
incorporate programs and processes that instill healthy, safe and
responsible behaviors and prepare students for interactions with
individuals of diverse racial, ethnic and social backgrounds.
School and district processes should include a focus on developing
ethical and responsible character, personal dispositions that
promote personal wellness through planned daily physical activity
and healthy eating habits consistent with high nutritional
guidelines and multicultural experiences that develop an
appreciation of and respect for diversity;
(6) A leadership recruitment, development and support
continuum. -- Quality schools and school systems of the 21st
Century cannot be created without high quality leaders. Thus, West
Virginia should have an aligned leadership professional development
continuum that attracts, develops and supports educational
leadership at the classroom, school and district level. This leadership development continuum should focus on creating: (i)
Learning-centered schools and school systems; (ii) collaborative
processes for staff learning and continuous improvement; and (iii)
accountability measures for student achievement;
(7) Equitable access to 21st Century technology and education
resources and school facilities conducive to 21st Century teaching
and learning. -- A quality educational system of the 21st Century
should have access to technology tools and processes that enhance
effective and efficient operation. Administrators should have the
digital resources to monitor student performance, manage a variety
of data and communicate effectively. In the classroom, every
teacher in every school should be provided with the instructional
resources and educational technology necessary to deliver the West
Virginia content standards and objectives. Schools of the 21st
Century require facilities that accommodate changing technologies,
21st Century instructional processes and 21st Century staffing
needs and patterns. These school facilities should mirror the best
in green construction and be environmentally and educationally
responsive to the communities in which they are located;
(8) Aligned public school with post-secondary and workplace
readiness programs and standards. -- An educational system in the
21st Century should be seen as a continuum from the public school
(prekindergarten through twelve) program through post-secondary
education. In order to be successful in a global competitive marketplace, learning should be an ongoing, life-long experience.
Thus, the public schools and the institutions of post-secondary
education in West Virginia should create a system of common
standards, expectations and accountability. Creating such an
aligned system will enhance opportunities for success and assure a
seamless educational process for West Virginia students; and
(9) A universal prekindergarten system. - A high quality,
universal prekindergarten system should be readily available to
every eligible student. The system should promote oral language
and preliteracy skills and reduce the deficit of these foundational
skills through proactive, early intervention. Research indicates
that universal prekindergarten systems improve graduation rates,
reduce grade level retentions and reduce the number of special
education placements. Therefore, local school systems should
create the supports and provide the resources to assure a quality
prekindergarten foundation is available to all eligible students.
(g) In addition to the policy-oriented objectives set forth in
subsection (f) of this section, the plan established pursuant to
this section also shall include at least the following performance-
oriented objectives:
(1) All children entering the first grade will be ready for
the first grade;
(2) All students will have equal education opportunity;
(3) Student performance on national measures of student performance will equal or exceed national averages and
(2) The performance of students falling in the lowest quartile
on national and international measures of student performance will
improve by fifty percent;
(4) (3) Ninety percent of ninth graders will graduate from
high school;
(5) High school graduates will be fully prepared for college,
other post-secondary education or gainful employment. The number
of high school graduates entering post-secondary education will
increase by fifty percent. and
(6) All working age adults will be functionally literate.
The intent of the Governor, the Legislature and the state
board is to pursue the accomplishment of these goals through
strategies which focus on: (i) Early childhood development; (ii)
improving the quality of teaching; (iii) technology and learning;
(iv) helping at-risk students; (v) work force preparation; and (vi)
restructuring and accountability in the education system.
(c) The state board shall report progress toward meeting and
achieving the goals, as set forth in subsection (b) of this
section, to the Governor and the Legislature at the beginning of
the legislative session in each of the next four years, beginning
in the year one thousand nine hundred ninety-seven, and shall
include in such report how the legislative priorities of the board
address attainment of the goals.
(4) By two thousand twelve, the gap between the county with
the lowest college-going rate and the state average as of the
effective date of this act will decrease by fifty percent and the
college-going rate of the state will equal the college-going rate
of the member states of the Southern Regional Education Board; and
(5) By two thousand twenty, the gap between the county with
the lowest college-going rate and the state average for school year
two thousand twelve will decrease by fifty percent and the college-
going rate of the state will exceed the college-going rate of the
member states of the Southern Regional Education Board by five
percentage points.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-5c. Process for Improving Education Council established;
membership; expenses; meetings; powers.
(a) Process for Improving Education Council. -- There is
hereby established the Process for Improving Education Council for
the purpose of providing opportunities for consultation among state
policy leaders on the process for improving education, including,
but not limited to, determination of the things that students
should know and be able to do as the result of a thorough and
efficient education, the performance and progress of students
toward meeting the high quality standards established by the state
board, adopting goals, objectives, strategies, indicators and
benchmarks for public education and any further improvements necessary to increase the capacity of schools and school systems to
deliver a thorough and efficient education.
(b) Council membership. -- The Legislative Oversight
Commission on Education Accountability, together with the Governor,
ex officio, or the Governor's designee, and the Chancellor of the
Higher Education Policy Commission, ex officio, or the chancellor's
designee, the Chancellor for Community and Technical College
Education, ex officio, or the chancellor's designee and the state
superintendent comprise the Process for Improving Education
Council. Ex officio members are entitled to vote. The Governor or
the Governor's designee shall convene the council, as appropriate,
and shall serve as chair. The council may meet at any time at the
call of the Governor or the Governor's designee.
(c) Compensation. -- Members of the council shall serve
without compensation, but shall be reimbursed as provided by law by
their respective agencies for all reasonable and necessary expenses
actually incurred in the performance of their official duties under
this section upon presentation of an itemized sworn statement of
their expenses.
(d) Powers of the council. --
The council has the following powers:
(1) To meet and consult with the state board, or its
designees, and make recommendations on issues related to student,
school and school system performance. The following steps are part of the consultation process:
(A) The state board shall notify each member of the council
whenever the state board proposes to amend its rules on any of the
following issues:
(i) High quality education standards and efficiency standards
established pursuant to section five of this article;
(ii) Indicators of efficiency established pursuant to section
five of this article; and
(iii) Assessment and accountability of school and school
system performance and processes established pursuant to section
five of this article.
(B) The notice to be given pursuant to paragraph (A) of this
subdivision shall contain a summary and explanation of the proposed
changes, including a draft of the proposal when available, and
shall be sent at least fifteen days prior to filing the proposal
with the Secretary of State for public comment.
(C) If the Governor, or the Governor's designee, believes it
is necessary for the council to meet and consult with the state
board, or its designees, on changes proposed to any of the issues
outlined in subdivision (1) of this subsection, he or she may
convene a meeting of the council.
(D) If both the President of the Senate and the Speaker of the
House of Delegates believe it is necessary for the council to meet
and consult with the state board, or its designees, they shall notify the Governor who shall convene a meeting of the council.
(E) If the chancellor, or the chancellor's designee believes
that it is necessary for the council to meet and consult with the
state board, or its designees, he or she may request the Governor
to convene a meeting of the council.
(2) To require the state board, or its designees, to meet with
the council to consult on issues that lie within the scope of the
council's jurisdiction;
(3) To participate as observers in any on-site review of a
school or school system conducted by the Office of Education
Performance Audits; and
(4) To authorize any employee of the agencies represented by
council members to participate as observers in any on-site review
of a school or school system conducted by the Office of Education
Performance Audits.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-1a. Legislative intent; findings; establishment of state
goals for higher education and education; creation of
partnership to achieve state goals and objectives.
(a) It is the intent of the Legislature in enacting this
section to establish state goals for public higher education which
benefit the citizens of the State of West Virginia.
(b) It is further the intent of the Legislature that this section be read and implemented in conjunction with the
accountability system established in article one-d of this chapter
and that any reference to this section in this code includes the
provisions of that article.
(c) Findings. -- The Legislature finds that post-secondary
education is vital to the future of West Virginia. For the state
to realize its considerable potential in the 21st Century, it must
have a system for the delivery of post-secondary education which is
competitive in the changing national and global environment, is
affordable for the state and its citizenry and has the capacity to
deliver the programs and services necessary to meet regional and
statewide needs.
The Legislature further finds that it is vitally important for
young people entering the workforce to have the education and
skills to succeed in today's high-technology, knowledge-based
economy. It is equally important for working-age adults who are
the majority of the current and potential workforce also to possess
the requisite education and skills to compete successfully in the
workplace and to have the opportunity to continue learning
throughout their lives. The future of the state rests not only on
how well its youth are educated, but also on how well it educates
its entire population of any age.
The Legislature further finds that providing access to a
high-quality and affordable post-secondary education is a state responsibility and, while states spent more than seventy billion
dollars on public higher education in two thousand six, they are
not maximizing that investment. The Legislature recognizes the
efforts of the National Conference of State Legislatures' Blue
Ribbon Commission on Higher Education in producing a report to
assist the states in higher education policymaking. According to
the commission report, "Transforming Higher Education: National
Imperative -- State Responsibility", the United States is losing
its competitive advantage in a new, high-tech, highly mobile global
economy. This lack of competitiveness is a matter of the highest
urgency for federal and state policymakers and higher education is
at the center of this discussion. The report further states that
"higher education is both the problem and the solution" because the
nation has failed to focus on how higher education energizes
American competitiveness and revitalizes the states. Pursuant to
these findings, the commission made some specific recommendations
addressed to the states which include the following:
(1) Define clear state goals;
(2) Identify your state's strengths and weaknesses;
(3) Know your state demographic trends for the next ten to
thirty years;
(4) Identify a place or structure to sustain the public policy
agenda;
(5) Hold institutions accountable for their performance;
(6) Rethink funding formulas and student aid;
(7) Make a commitment to access, success and innovation;
(8) Encourage partnerships;
(9) Give special attention to adult learners; and
(10) Focus on productivity.
All of these recommendations are useful in providing policy
guidance and have been given careful consideration in the
development of this section and article one-d of this chapter.
(d) Establishment of state goals. -- In recognition of its
importance to the citizens of West Virginia, the Legislature hereby
establishes the following goals for public higher education in the
state:
(1) The ultimate goal of public education is to enhance the
quality of life for citizens of the State of West Virginia.
(2) The overall focus of public education is on developing and
maintaining a process of lifelong learning which is as seamless as
possible at all levels, encourages citizens of all ages to increase
their knowledge and skills and provides ample opportunities for
them to participate in public higher education.
(3) Higher education collaborates with public education and
other providers to offer education opportunities:
(A) To individuals of all ages and socioeconomic backgrounds
in all areas of the state; and
(B) To overcome financial barriers to participation for both traditional and nontraditional students.
(4) Higher education seeks to enhance state efforts to
diversify and expand the economy by focusing available resources on
programs and courses which best serve students, provide the
greatest opportunity for job creation and retention and are most
supportive of emerging high-technology and knowledge-based
businesses and industries.
(5) Higher education creates a learning environment that is
student-friendly and that encourages and assists students in the
completion of degree requirements, certifications or skill sets
within a reasonable period of time.
(6) The learning environment expands participation for the
increasingly diverse student population and responds to the needs
of the current workforce and other nontraditional students.
(7) Through the establishment of innovative curricula and
assessment efforts, state institutions of higher education ensure
that students graduate from nationally recognized and accredited
programs and meet or exceed national and international standards
for performance in their chosen fields as evidenced through
placement and professional licensure examinations.
(8) Higher education promotes academic research and innovation
to achieve measurable growth in West Virginia's knowledge-based
economic sector.
(9) State institutions of higher education emphasize productivity and strive to exceed the performance and productivity
levels of peer institutions. In return, and within the constraints
of fiscal responsibility, the state seeks to invest in institutions
so that they may adequately compensate faculty, classified
employees and other employees at a competitive level to attract and
retain high quality personnel.
(10) State institutions of higher education are committed to
a shared responsibility with faculty, staff, students and their
communities to provide access to the knowledge and to promote
acquisition of the skills and abilities necessary to establish and
maintain physical fitness and wellness.
(A) Programs that encourage healthy lifestyles are essential
for the vibrancy of the institutions of higher education, for the
well-being of the communities they serve and for the state as a
whole.
(B) Increasing the fitness levels of adults on college and
university campuses is critically important for the people of West
Virginia, not only for disease prevention, but also, and perhaps
most importantly, to enhance the overall quality of life.
(C) While individuals must bear the primary responsibility for
their own health, it is imperative that the institutions provide
appropriate education and support focused on enriching and
expanding the short- and long-term views and attitudes towards
physical activity, understanding the principles of wellness and their application to a healthy lifestyle, understanding what
components are a necessary part of an all-around healthy lifestyle
and learning how to set and achieve realistic goals aimed at
establishing healthy habits for the benefit of long-term health and
well-being.
(e) Education partnership to achieve state goals and
objectives. -- If public institutions of higher education are to
provide services that meet the needs of state citizens as outlined
in this section and article one-d of this chapter, then West
Virginia must create and participate in a partnership across
various education organizations that recognizes the valuable
contributions each member of the group can make. In addition to
public education as outlined in section four, article one, chapter
eighteen of this code and in addition to the State of West
Virginia, key members of this partnership include the state
institutions of higher education, the Council for Community and
Technical College Education and the Higher Education Policy
Commission.
(1) State institutions of higher education. -- The
institutions are the cornerstone of efforts to provide higher
education services that meet the needs of state citizens. To
varying degrees, and depending upon their missions, these
institutions serve the state in three major ways:
(A) Instruction. -- By providing direct instruction to students along with the student services necessary to support the
instructional mission. These services have two primary goals:
(i) To produce college graduates who have the knowledge,
skills and desire to make valuable contributions to society; and
(ii) To provide opportunities for citizens to engage in life-
long learning to enhance their employability and their overall
quality of life.
(B) Public service. -- By providing an occupational home for
experts in a variety of fields and by serving as the educational
home for students. In these capacities, institutions create a
large and varied pool of high quality human resources capable of
making valuable contributions to business and industry, local and
state governments and communities. The following are examples of
the types of public service that higher education institutions have
to offer:
(i) Workforce development, primarily through community and
technical colleges, to meet the immediate and long-term needs of
employers and employees;
(ii) Technical assistance to state and local policymakers as
they work to address challenges as diverse as ensuring that West
Virginia's citizens receive quality health care, assisting in the
development of a solid transportation infrastructure and ensuring
that public school teachers have enriching professional development
opportunities; and
(iii) Opportunities to learn and serve in local communities,
to teach civic responsibility and to encourage civic engagement.
(C) Research. -- By conducting research at state institutions
of higher education, particularly Marshall University and West
Virginia University, to enhance the quality of life in West
Virginia in the following ways:
(i) Targeting cutting-edge research toward solving pressing
societal problems;
(ii) Promoting economic development by raising the level of
education and specialization among the population; and
(iii) Creating jobs through development of new products and
services.
(2) The Council for Community and Technical College Education
and the Higher Education Policy Commission. -- In their role as
state-level coordinating boards, the council and commission
function as important partners with state policy leaders in
providing higher education that meets state needs. The council and
commission provide service to the state in the following ways:
(A) By developing a public policy agenda for various aspects
of higher education that is aligned with state goals and objectives
and the role and responsibilities of each coordinating board;
(B) By ensuring that institutional missions and goals are
aligned with relevant parts of the public policy agenda and that
institutions maximize the resources available to them to fulfill their missions and make reasonable progress toward meeting
established state goals;
(C) By evaluating and reporting on progress in implementing
the public policy agenda;
(D) By promoting system efficiencies through collaboration and
cooperation across institutions and through focusing institutional
missions as appropriate; and
(E) By conducting research, collecting data and providing
objective recommendations to aid elected state officials in making
policy decisions.
(3) State of West Virginia. -- Elected state officials
represent the citizens of West Virginia and are critical partners
in providing quality higher education. In this context, these
state-level policymakers serve the state in the following ways:
(A) By establishing goals, objectives and priorities for
higher education based on a thoughtful, systematic determination of
state needs;
(B) By providing resources necessary to address state goals,
objectives and priorities for higher education; and
(C) By providing incentives for and removing barriers to the
achievement of state goals, objectives and priorities.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-1. Legislative intent and purpose; short title; rules
required.
(a) The intent of the Legislature in the enactment of this
article is to outline and organize the elements of accountability
for public higher education into an effective, coherent system to
provide guidance to the state institutions of higher education, the
commission and the council and to clarify the roles, relationships
and responsibilities between and among these entities, the citizens
of West Virginia and elected state officials. The main purposes of
the accountability system are as follows:
(1) To develop agreement on higher education goals, objectives
and priorities through negotiation and consensus-building between
elected officials acting on behalf of the citizens of the state and
the commission and the council and institutions which receive
public funds and provide education services;
(2) To create a seamless education system and hold boards and
institutions accountable for meeting state goals and objectives.
(3) To provide a data-driven, step-by-step process to
determine the progress of public higher education in addressing
established goals, objectives and priorities;
(4) To promote cooperation and collaboration among all
entities which are involved in the delivery of public education in
West Virginia; and
(5) To provide for generation, collection and dissemination of
data on which sound state-level policy decisions can be based.
Possible uses of this data include the following:
(A) Identifying institutions and systems that increase quality
and productivity; and
(B) Creating a mechanism to target a portion of state
appropriations to institutions and systems based on performance in
meeting established state goals and objectives.
(b) This article, together with section one-a, article one of
this chapter and section four, article one, chapter eighteen of
this code, shall be known as and may be cited as Vision 2020: An
Education Blueprint for Two Thousand Twenty.
(c) By the first day of October, two thousand eight, the
commission and the council shall propose rules for legislative
approval in accordance with the provisions of section six, article
one of this chapter and article three-a, chapter twenty-nine-a of
this code concerning the accountability system for higher education
outlined in this article.
(1) The commission and the council may propose rules jointly
or separately and may choose to address all of the accountability
system in a single rule or may propose additional rules to cover
specific elements.
(2) At a minimum, the rules shall address the respective
responsibilities of the various parties, the development of
statewide master plans, the process of entering into institutional
and state compacts, performance indicators and institution and
state-level reporting to ensure that higher education is accountable to the citizens of West Virginia.
§18B-1D-2. Definitions.
(a) General. -- For the purposes of this article and section
one-a, article one of this chapter, terms have the meaning ascribed
to them in section two, article one of this chapter, unless the
context in which the term is used clearly requires a different
meaning or a specific definition is provided in this section.
(b) Definitions. --
(1) "Accountability system for public higher education" or
"accountability system" means all research, reports, documents,
data and any other materials, the collection, analysis and
dissemination of which are necessary or expedient to accomplish the
purposes of this article or section one-a, article one of this
chapter. The system includes legislative goals, objectives and
priorities; public policy agendas; statewide master plans; state
and institutional compacts; implementation plans; institutional
mission statements and master plans; and the statewide report card.
(2) "Education partnership to achieve state goals and
objectives" or "education partnership" means the formal and
informal working relationships established between and among the
State of West Virginia, the commission, the council, the State
Board of Education and State Department of Education and the state
institutions of higher education for the purpose of achieving state
goals and objectives.
(3) "Functional literacy rate" means the percentage of adults
over the age of seventeen who are able to read beyond a fourth
grade level and interpret basic information from sources such as
road signs, job applications, newspaper articles and food and
medicine labels.
(4) "Goals" means those long-term public purposes which are
the desired and expected end result for which public higher
education is established.
(5) "Implementation plan" means a document developed within
the higher education community that identifies a series of
objectives, sets forth performance indicators that can be used to
determine if objectives are being achieved, outlines strategies for
accomplishing the objectives and identifies benchmarks for
evaluating progress in accomplishing the objectives over the life
cycle of the plan.
(6) "Institutional compact" means a formal, written contract
between either the commission or council and a state institution of
higher education under its jurisdiction expressing intent to
accomplish state and system goals and objectives.
(7) "Institutions under the jurisdiction of the commission"
relative to the accountability system established by this article
and section one-a, article one of this chapter means Bluefield
State College, Concord University, Fairmont State University,
Glenville State College, Marshall University, Shepherd University, West Liberty State College, the West Virginia School of Osteopathic
Medicine, West Virginia State University and West Virginia
University, including Potomac State College of West Virginia
University and the West Virginia University Institute of
Technology.
(8) "Institutions under the jurisdiction of the council"
relative to the accountability system established by this article
and section one-a, article one of this chapter means Blue Ridge
Community and Technical College, the Community and Technical
College at West Virginia University Institute of Technology,
Eastern West Virginia Community and Technical College, Marshall
Community and Technical College, New River Community and Technical
College, Pierpont Community and Technical College, Southern West
Virginia Community and Technical College, West Virginia Northern
Community and Technical College, West Virginia State Community and
Technical College and West Virginia University at Parkersburg.
(9) "Net college costs" means the total cost of tuition, room
and board minus the amount of financial aid a student receives.
(10) "Objectives" means the ends to be accomplished or
attained within a specified period of time for the purpose of
meeting the established goals.
(11) "Priority" or "priorities" means the order in which
objectives are to be addressed for the purpose of achieving state
goals.
(12) "Strategy" or "strategies" means specific activities
carried out by public higher education which are directed toward
accomplishing specific objectives.
(13) "Statewide master plan" or "system master plan" means a
document developed by the council or commission that sets forth
system goals, objectives and strategies and is aligned with, but
not limited to, meeting state goals, objectives and priorities.
(14) "STEM courses and programs" means curricula leading to a
degree or other recognized credential in the science, technology,
engineering and mathematics fields of study or specialization.
(15) "State compact" means a formal, written agreement between
the council and/or the commission and at least one other member of
the education partnership to achieve state goals and objectives
where significant collaboration and commitment of resources between
the parties to the agreement is required in order to achieve the
desired results.
§18B-1D-3. State vision for public higher education; findings;
establishment of objectives.
(a) The Legislature finds that availability of high-quality
post-secondary education is so important to the well-being of the
citizens of West Virginia that it is in the best interests of the
state to focus attention on areas of particular concern and within
those areas to specify objectives and priorities that must be
addressed by two thousand twenty. The purpose of these objectives and priorities is to achieve the broad-based goals for public
higher education established in section one-a, article one of this
chapter. Areas of special concern to the Legislature include
economic and workforce development; education access and
affordability; innovation; student preparation; degree and/or
program completion; intra- and inter-system cooperation and
collaboration; research; and teaching and learning.
(1) Economic and workforce development. --
(A) Diversifying and strengthening the economy of the state;
(B) Providing incentives to systems and institutions to focus
attention on those courses and programs which create and retain
jobs in the state, especially among the emerging high-technology,
knowledge-based businesses and industries.
(2) Access and affordability. --
(A) Maintaining geographic access while eliminating
unnecessary duplication;
(B) Enhancing education opportunities for the widest range of
state citizens:
(i) By establishing tuition and fee levels for in-state
students that do not inhibit access to public education nor cause
students to incur excessive debt. This is particularly important
in West Virginia where about two-thirds of all students attending
college are enrolled in public higher education institutions and
where families devote a very large share of their incomes to pay the cost of education. The share of costs paid by families remains
very high even after adjusting for the impact of financial aid; and
(ii) By establishing tuition and fee rates for out-of-state
students at levels which, at a minimum, cover the full cost of
instruction unless doing so is inconsistent with a clearly
delineated public policy goal established by the Legislature, the
commission or the council.
(iii) Innovation. -- Devise innovative programs, delivery
modes, partnerships, research initiatives, curricula and pedagogy
to achieve the needs of the state and its citizens and carry out
the mission and objectives of the state institutions of higher
education. Methods include aligning entrepreneurial efforts,
research and partnerships with established state goals.
(iv) Student preparation. -- Ensure that potential students
are academically prepared for college and that graduates are
adequately prepared for careers or further education.
(V) Degree and/or program completion. -- Despite significant
improvement over the past decade, fewer than twenty percent of
state residents hold a bachelor's degree. This shortage of highly
educated, highly qualified workers substantially limits the state's
ability to compete in the knowledge-based economy.
(vi) Collaboration and cooperation. -- Deliver education
services to the extent possible through collaboration, coordination
and brokering, with particular emphasis on the need for a seamless relationship between public and post-secondary education.
(vii) Research. -- Develop a greater research capacity within
public higher education to enhance West Virginia in the eyes of the
larger economic and education community, develop greater
specialized expertise in high technology and policy fields, create
more employment opportunities within the state and provide a basis
for improved capacity to compete in the new economy through
research focused on meeting state needs.
(viii) Teaching and learning. -- Develop admission and exit
standards for students and emphasize professional staff
development, program assessment and evaluation and other incentives
to improve teaching and learning. Ensure access to stable and
continuing graduate-level programs in every region of the state,
particularly in STEM subject areas and teacher education related to
teaching within a subject area to improve teacher quality.
(b) Vision 2020: Objectives for public higher education. -- In
view of the findings outlined in subsection (a) of this section,
the Legislature hereby establishes the following objectives to be
addressed as highest priorities beginning on the effective date of
this article through development of compacts and/or implementation
plans between and among members of the education partnership as
provided in subsection (e), section one-a, article one of this
chapter. The following is the legislative vision for the years two
thousand eight through two thousand twenty:
(1) Objective. -- Develop a state-level facilities plan and
funding mechanism to reduce the obligation of students and parents
to bear the cost of higher education capital projects and
facilities maintenance.
(A) Problem statement. --
(i) West Virginia is one of the very few states in the nation
which does not address higher education capital project and
facilities maintenance needs through a statewide plan.
(ii) The burden of paying for capital projects and deferred
maintenance is placed on students and their families through
collection of capital fees at the institution level and contributes
significantly to the poor grade West Virginia receives each year in
the category of "Affordability" on "Measuring Up: The National
Report Card on Higher Education".
(iii) Net college costs for low- and lower middle-income
students to attend state community and technical colleges and
four-year colleges and universities average approximately
forty-five percent of their annual family income.
(iv) The high cost of capital fees contributes directly to the
amount of debt incurred by students during their college years and
the necessity to repay student loans severely limits career choices
and areas of residence after graduation.
(B) Expected outcomes. -- Success in meeting this goal can be
measured in part by benchmarks which include the following:
(i) Development by the council and commission of a compact
with elected state officials to fund a significant portion of
higher education capital project needs from dedicated state
revenues;
(ii) Development by the council and commission of a system to
establish priorities for institution capital projects in a manner
that is consistent with state public policy goals for higher
education;
(iii) Implementation of facilities maintenance plans by
institutions to ensure that maintenance needs are not deferred
inappropriately;
(iv) Efficient use of existing classroom and other space by
institutions:
(I) New capital funding is applied effectively to projects at
institutions that have a demonstrated need for new facilities and
major renovations; and
(II) The cost of operating and maintaining the facilities and
physical plants of institutions are appropriate for the size and
mission of the institution; and
(v) Capital and facilities maintenance planning that gives
careful consideration to the recommendations arising from the study
mandated by section nine, article fourteen of this chapter.
(2) Objective. -- Increase academic rigor and improve learning
at higher education institutions.
(A) Problem statement. -- West Virginia has made significant
progress on certain indicators within the category of student
learning, but lags far behind national and regional averages on
others.
(i) The state compares very well in workforce preparation as
reflected in professional licensure examinations, ranking among the
top five states in the country. More West Virginia graduates take
these examinations than is typical nationally and the passage rate
is at the national average.
(ii) The state also ranks well above the national average
passage rate on the state teacher's examination when compared to
other states; however, there is serious cause for concern when the
state is compared to the national benchmark in preparing students
for graduate study.
(I) West Virginia ranks more than fifty percentage points
below the national average in preparing students to take and pass
graduate admissions examinations.
(II) Fewer West Virginia graduates take these examinations
than is typical nationally and the proportion earning competitive
scores is only about seventy-five percent of the national average.
(B) Expected outcomes. -- Success in meeting this goal can be
measured in part by benchmarks which include the following:
(i) State institutions of higher education develop or use
existing nationally normed assessments of student learning outcomes. Data generated through these assessments are analyzed
and the results applied by the institutions to improve the quality
of undergraduate general education programs; and
(ii) Implementation plans at the system and institution levels
are developed to improve student preparation for graduate study and
to expand graduate and professional education, where appropriate.
(3) Objective. -- Increase the percentage of entering students
who persist to receive a degree, a certificate or an
industry-recognized credential.
(A) Problem statement. --
(i) This goal is particularly important to West Virginia where
only about one person in five holds an associate degree or higher.
(ii) The lack of a well-trained workforce is reflected in the
most recent score of forty-one received by the state on the
nationally recognized New Economy Index which measures the extent
to which a state is prepared to participate in knowledge-based
industries. This low score places the state well below the
national benchmark of sixty on the index.
(iii) State institutions of higher education have placed a
greater emphasis on student recruitment than on student retention
and completion. This strategy alone cannot be successful in
meeting state needs for the following reasons:
(I) The number of state high school graduates is expected to
decline over the next several years; therefore, institutions must improve their performance in retaining the students who enroll.
(II) West Virginia is among the leading states in the
percentage of first-year students at community colleges who return
for their second year and large percentages of freshmen at
four-year colleges and universities return for their sophomore
year; however, when compared with other states, only a small
percentage of these students actually persist to earn a bachelor's
degree or associate degree within six years.
(III) The state performs poorly on international comparisons
of enrolled students who complete certificates or degrees, trailing
behind other industrialized and even some third world nations.
(IV) While the state college-going rate has improved, most
state institutions have made only marginal progress over the past
decade in increasing the percentage of students who persist to
obtain a degree or certificate.
(B) Expected outcomes. --
(i) Enhanced quality of life for West Virginians, including
increased level of per capita income; and
(ii) Increased economic development opportunities by expanding
existing high-technology and knowledge-based businesses and
industries and attracting new ones which demand highly qualified
professionals.
(4) Objective. -- State institutions of higher education,
particularly community and technical colleges, make maximum effort to recruit and retain adults twenty-five years old or over.
(A) Problem statement. --
(i) The percentage of West Virginia's working-age adults
enrolled part-time in college-level education or training is very
low and the state has experienced one of the largest declines in
the nation on this measure over the past twelve years.
(ii) A large part of preparing workers for the 21st Century
and for a high-quality style of life hinges upon providing
opportunity for adults to acquire a series of skill sets in
addition to obtaining a degree or other credential.
(iii) A major focus for community and technical colleges is
upon providing programs to upgrade employee skills through
obtaining industry credentials. Currently, however, only
certificate program degrees (one-year) and associate degrees
(two-year) are counted for funding purposes even though other types
of credentials often are as important in meeting workforce
development goals as providing degree programs.
(B) Expected outcomes. --
(i) Provide programs of interest to nontraditional students,
including those that afford them the opportunity to obtain
certificates and credentials, enhance career development and
acquire new skill sets;
(ii) Develop a high-visibility marketing program which makes
adults aware of the opportunities available to them and assists them in entering or reentering the learning environment;
(iii) Provide for lower cost tuition and fee rates,
particularly at the community and technical colleges, and/or
greater access to financial aid for adult full- and part-time
students.
(iv) Develop open admissions policies which provide
opportunities for adults to participate in public post-secondary
education beginning at any level of preparedness. Most working-age
adults cannot or will not "go back to high school" in order to
prepare themselves to participate in higher education.
(v) Tailor institutional policies to meet the needs of adults,
recognizing that these individuals have responsibilities that are
different from those of traditional-aged college students. High on
this list of needs are flexible class schedules to accommodate work
obligations and waiving dorm residency requirements.
(5) Objective. -- Provide incentives to state institutions of
higher education to encourage emphasis on STEM courses and programs
leading to degrees in the high-demand fields of science,
technology, engineering and mathematics and to encourage
collaboration with public education to stimulate interest and
prepare students to succeed in these fields.
(A) Problem statement. --
(i) STEM courses often are more expensive to deliver than
traditional programs; therefore, institutions may be reluctant to start or expand programs in these areas because of anticipated
cost;
(ii) Institutions have difficulty recruiting and retaining
faculty members in STEM areas because of competition from
surrounding states and other market forces;
(iii) There is insufficient communication between STEM
teachers in public education, STEM faculty in higher education and
professionals employed in STEM-related careers such as engineering;
(iv) Many students have not taken sufficiently rigorous high
school courses to allow them to succeed in post-secondary STEM
courses and programs. A large percentage of students enrolled in
higher education STEM programs either withdraw from the institution
or change majors within the first year; and
(v) The transition from high school to college is difficult
for many high school students who lack a family role model to
provide guidance relevant to the higher education experience.
(B) Expected outcomes. --
(i) Increased capacity for high quality instruction across
public higher education;
(ii) Increased student access to high quality undergraduate
and graduate research opportunities in science, technology,
engineering and mathematics;
(iii) Enhanced economic development opportunities through
increased numbers of highly-qualified professionals available to business and industry;
(iv) Development of a consistent and effective forum for
communication among STEM faculty in public and higher education and
relevant professional communities to address the continuing needs
of students, educators and industry;
(v) Increased percentage of high school students who have
access to and take advantage of rigorous STEM courses;
(vi) Alignment of STEM curricula between public and higher
education;
(vii) Development of a finance formula that gives greater
weight to courses taken in high-cost disciplines and/or those that
are critical to the state economy; and
(viii) Creation of a STEM coordinator position within the
faculty of each state institution of higher education to provide
outreach to secondary schools, to mentor freshman students and to
collaborate with coordinators at other institutions. Because of
the size of the student body, the two research universities may
need to create coordinator positions specific to certain
high-demand STEM disciplines such as engineering and computer
science.
(6) Objective. -- Develop a stable funding stream for state
institutions of higher education to pay for essential programs
which are expensive to deliver, are in high demand and/or are
critical to the state's capacity to replace an aging workforce as employees retire. This objective has a particular impact on
community and technical colleges which deliver high-cost technical
programs.
(A) Problem statement. --
(i) An educated and technically skilled workforce is vital to
the state's ability to be competitive in the global marketplace.
Currently, West Virginia's employers must struggle to find a
sufficient number of highly qualified workers to fill the jobs they
have available; and
(ii) The majority of technical occupations require the
delivery of equipment-intensive, high-cost programs that state
institutions of higher education, especially community and
technical colleges, lack the capacity to provide.
(B) Expected outcomes. --
(i) State institutions delivering community and technical
college education focus on expanding and/or implementing technical
programs to meet the needs of high-demand, high-wage occupations;
(ii) Funding priorities for community and technical colleges
focus on developing and maintaining high-cost technical programs;
(iii) Creation of a strategy to fund the replacement,
upgrading and purchase of equipment to implement and/or maintain
technical education programs; and
(iv) Support critical, noncredit programming by incorporating
the number of contact hours delivered into a formula to distribute funding to community and technical colleges.
(7) Objective. -- Develop a mechanism to assure uniform
delivery of community and technical college education for all
regions of the state.
(A) Problem statement. -- The average education attainment
rate in West Virginia lags eleven percent behind the national
average in part because delivering education programs to the
state's adult, place-bound and rural populations presents
significant challenges.
(B) Expected outcomes. --
(i) All state citizens have access to a minimum of two years
of college education regardless of their place of residence within
the state.
(ii) The state institutions increase the innovative use of
technology and distance education to provide general and technical
education access in sparsely populated rural areas.
(iii) Creation of a seamless education system and uniform
transfer of credits with special attention to transfers between
community and technical colleges and four-year institutions;
(iv) Appropriate use of adjunct faculty; and
(v) Where feasible, use of facilities in public schools,
technical centers and other public facilities as classroom space.
(8) Objective. -- Develop greater research capacity throughout
public higher education, with a special focus on the state's two doctoral degree-granting universities.
(A) Problem statement. --
(i) West Virginia ranks near the bottom among all states in
the amount of federal and privately funded sponsored research it
receives. Historically, only the National Science Foundation's
Experimental Program to Stimulate Competitive Research (EPSCoR) has
focused on building research capacity in the state, but if West
Virginia is to benefit from the increased economic opportunity,
better jobs and higher standard of living associated with more STEM
professionals in the population, the state must invest more to
build its research capacity; and
(ii) Low research capacity results in low levels of
intellectual property creation, patenting and licensing of
commercial property.
(B) Expected outcomes. --
(i) Partnering between and among higher education institutions
in West Virginia and between state institutions and larger,
resource-rich higher education institutions outside the state;
(ii) Developing an institutional and/or statewide research
niche and focusing resources on research that contributes most to
meeting state needs;
(iii) Leveraging scarce resources to make steady, targeted
investments in research in niche areas where the state can be a
real player at a competitive level;
(iv) Developing specific research expertise within the two
state doctoral degree-granting universities to generate and analyze
data to provide policy recommendations. The areas of focus include
funding strategies for higher education, demographic trends and
methods to determine and meet workforce development needs by
anticipating job creation and credential requirements;
(v) Improving communication among the research branches of
higher education institutions, including identification of mutually
complementary areas of interest to increase funding opportunities
and collaboration on intellectual property issues; and
(vi) Focusing on economic development through commercial
applications of research and recruitment of new research faculty
members for this purpose.
(9) Objective. -- Increase the percentage of functionally
literate adults in each region of the state.
(A) Problem statement. --
(i) The literacy attainment of a population is defined at its
most basic level as the percentage of those individuals over the
age of fifteen who can read and write, but such a definition does
not address the realities of the 21st Century. The National
Literacy Act of 1991 and the National Workforce Investment Act of
1998 both define literacy more broadly as "an individual's ability
to read, write, speak in English, compute and solve problems at
levels of proficiency necessary to function on the job, in the family of the individual and in society".
Approximately twenty percent of the adult population in West
Virginia cannot meet this definition of functional literacy. One
adult out of every five in the state lacks the basic literacy
skills needed to succeed at work, to enter the learning environment
of post-secondary education, to acquire advanced occupational
training or to participate in preparing his or her own children to
learn.
(ii) The high rate of illiteracy in West Virginia not only
handicaps adults in seeking employment and achieving their goals
for their own quality of life, but also has serious implications
for the future of their children and for the state.
There is a direct, positive correlation between the reading
scores of children and the education level of their parents. The
National Assessment of Education Progress (NAEP) has concluded that
youngsters whose parents are functionally illiterate are twice as
likely to become functionally illiterate adults.
(iii) When the level of functional illiteracy in West Virginia
is compared to the requirements for high-demand occupations, the
negative consequences for the economy of the state become obvious.
The International Adult Literacy Survey (IALS) established a scale
of five levels which is used extensively to measure the literacy
attainment of adults. When this scale was used to compare the
literacy requirements of projected high-growth occupations with those in declining occupations such as certain types of
manufacturing, researchers found that level three literacy is
required for the new jobs, while level two is sufficient for the
jobs in the declining occupations. Therefore, workers displaced
from jobs in declining occupations as well as those seeking to
enter or reenter the work place must possess literacy skills a full
level higher than those required for workers only a few years ago.
Documents such as manuals outlining standard operating procedures,
health and safety manuals, leave forms and retirement options that
they encounter daily require a level of literacy well above level
two.
(iv) A highly skilled and literate work force is essential to
the success of state businesses and industry. A ten percent
increase in the average education of all workers, equivalent to
approximately one additional year of schooling, is associated with
an increase of about nine percent in the productivity of that labor
force. Additionally, workers who lack literacy skills cannot
provide the data and feedback that companies need to make informed
business decisions. A company whose employees cannot record
reliable production data cannot assess its performance from year to
year or determine how well it is meeting its long range goals and
objectives.
(v) The rate of functional illiteracy in West Virginia also
has a direct impact on the health of state citizens. Residents with low literacy skills have difficulty in many health areas
including the following:
(I) Understanding the correct way to take medication,
interpret test results or perform simple self-testing such as
taking temperatures or checking blood glucose levels;
(II) Understanding and following directions given by
physicians or the written instructions provided with prescription
or over-the-counter medication for themselves or for their
children;
(III) Reading and understanding information on food labels and
other nutrition information to make sound decisions necessary to
establish and maintain healthy lifestyles; and
(IV) Furnishing correct information in emergencies to medical
providers about illnesses, surgeries and medications or
understanding how to fill out insurance forms and other
health-related documents.
(B) Expected outcomes. --
(i) Develop greater access and capacity to deliver literacy
and remedial education, workforce development training and other
higher education services to place-bound adults primarily through
the community and technical colleges;
(ii) Increase the percentage of the working age population who
participate in higher education, either full or part time;
(iii) Establish a statewide mechanism to collect data to provide a baseline for measuring progress toward meeting the goal
of functional literacy for all working-age adults and to serve as
a framework for setting priorities, identifying gaps in service and
targeting services to key populations, industries, economic sectors
and geographic areas;
(iv) Develop programs that include, at a minimum, the
following:
(I) Learning opportunities within a real-life context, such as
workplace and family literacy programs;
(II) Recognition of the diversity of individual abilities,
skill levels, circumstances and life goals; and
(III) Strategies to access, promote and accommodate a variety
of instructional methods and learning styles.
(v) Develop a culture committed to life-long learning by
creating literacy-rich environments wherever people live and work
that are capable of influencing changes in individual behavior; and
(vi) Create partnerships among schools, employers, workers,
governments and communities to achieve these objectives and
mechanisms to collect, interpret and disseminate data to assist
policymakers in determining the appropriate level of resources
essential to support lifelong learning systems.
§18B-1D-4. Responsibilities of Higher Education Policy Commission
and Council for Community and Technical College
Education; development of public policy agendas; reports; institutional responsibilities.
(a) It is the responsibility of the commission, in cooperation
with the council, to develop, oversee and advance the public policy
agenda mandated by section four, article one-b of this chapter to
address the goals and objectives established pursuant to this
article and section one-a, article one of this chapter, including,
but not limited to, aligning state and institutional compacts,
master plans, implementation plans and institutional missions with
state goals and objectives to accomplish the purposes of this
article.
(b) It is the responsibility of the council, in cooperation
with the commission when applicable, to develop, oversee and
advance the public policy agenda mandated by section six, article
two-b of this chapter to address the goals and objectives
established pursuant to this article and section one-a, article one
of this chapter, including, but not limited to, aligning state and
institutional compacts, master plans, implementation plans and
institutional missions with state goals and objectives to
accomplish the purposes of this article.
(c) It is further the responsibility of the commission and
council to collect the data, assemble it in the appropriate format
and transmit all reports and any other essential documents as
needed to fulfill the purposes of this article. Each report shall
contain a brief, concise executive summary and shall include trends and recommendations in text format. Recommendations shall be
ranked by order of importance and shall be supported by objective
data available elsewhere in the report. In addition to those
specifically mandated by this chapter or chapter eighteen-c of this
code, reporting responsibilities include, but are not limited to,
the following:
(1) Ensuring that data systems collect the essential
information state-level policymakers need to answer key policy
questions to fulfill the purposes of the accountability system
established pursuant to this article and section one-a, article one
of this chapter;
(2) Collaborating with public education to establish policies
to link existing pre-K, K-12, higher education and teacher data
systems to enable tracking of student progress and teacher
performance over time; and
(3) Ensuring that reports provide data analyses to determine
if students entering the public higher education systems are
prepared for post-secondary education and if students obtaining
degrees, certificates or other credentials are prepared to pursue
careers or to continue their education.
(d) It is the responsibility of public institutions of higher
education to report to the commission or the council, as
appropriate, on plans, accomplishments and recommendations to
implement the goals and objectives contained in the institutional and state compacts.
§18B-1D-5. Master plans; reports; approval process.
(a) The commission and the council each shall develop a master
plan for public higher education that is closely aligned with the
goals and objectives of this article and section one-a, article one
of this chapter as they relate to the missions of institutions
under their respective jurisdictions.
(b) The authority of the commission and the council,
respectively, related to developing and implementing statewide
master plans is subject to the following conditions:
(1) The master plans shall be established for periods of not
more than five years.
(2) The master plans in place on the effective date of this
article continue in effect until the end of the five-year planning
cycle unless amended or rescinded by the commission or council,
respectively, pursuant to this article.
(3) Any new master plan proposed by the commission or council
shall be communicated to the Legislative Oversight Commission on
Education Accountability and may not be adopted or implemented
without the approval of that body;
(4) The commission and council each shall perform a
comprehensive review of its master plan at least annually and shall
revise it periodically as appropriate to meet state goals and
objectives.
(5) The commission and the council each shall review the
progress of its higher education system in meeting the goals and
objectives of the master plan and report to the Legislative
Oversight Commission on Education Accountability, with detailed
recommendations for amending the plan, by the first day of January,
two thousand nine, and annually thereafter.
(6) At the end of each five-year planning cycle and as an
integral part of the preparation of a new master plan, the
commission and the council, respectively, shall prepare and submit
to the Legislative Oversight Commission on Education Accountability
a comprehensive report containing at least the following:
(A) A detailed, data-based analysis of the progress of the
system and the institutions within the system toward meeting each
goal and objective included in the current plan; and
(B) A strategy for using this data as a basis for developing
the master plan for the next planning cycle.
(c) The master plan shall include a detailed set of system
objectives designed to meet the state goals and objectives outlined
in this article and section one-a, article one of this chapter,
including, but not limited to, the following:
(A) A well-developed analysis of missions, degree offerings,
resource requirements, physical plant needs, personnel needs,
enrollment levels and other planning determinants and projections
for public higher education and other matters necessary in such a plan to assure that the needs of the state for a quality system of
higher education are addressed; and
(B) A strategy for cooperation and collaboration with the
State Board of Education and State Department of Education, state
institutions of higher education, the counterpart state
coordinating board and other relevant education providers to assure
that a comprehensive and seamless system of education is developed
and implemented for West Virginia.
§18B-1D-6. State compacts; legislative intent; rule required;
implementation plans authorized.
(a) It is the intent of the Legislature that members of the
education partnership to achieve state goals and objectives engage
in developing state compacts between and among themselves for the
purpose of enhancing the well-being of the citizens of West
Virginia. Such a compact constitutes a formal contract and focuses
on the goals and objectives established pursuant to this article
and section one-a, article one of this chapter. A compact is
called for when achievement of specific goals or objectives
requires significant collaboration and commitment of resources by
more than one member of the partnership.
(b) The rules to be proposed relating to state compacts
pursuant to subsection (c), section one of this article shall
include, but are not limited to, the following components:
(1) A procedure to determine when a state compact is necessary or desirable;
(2) A procedure for determining the identity of parties to the
compact and for establishing compact terms:
(A) Parties to the compact may be any two or more members of
the education partnership to achieve state goals and objectives who
are positioned to make significant contributions to meeting compact
objectives; and
(B) The terms of the compact shall focus on achievement of
objectives. The expected outcomes shall be stated in concrete
terms that are measurable.
(3) A mechanism for negotiating agreement on compact
objectives. The mechanism shall provide for negotiation and
development of consensus among the parties and must be reasonable
in its operation and outcomes expectations;
(4) A procedure for creating and consolidating commitment
between and among parties to the compact. Most state compacts will
extend over multiple years and will require that negotiation
between education partners and elected state officials take into
account the constraints of the political process and the limits on
available resources; and
(5) A process for periodic review, assessment and reporting of
progress toward meeting the compact objectives. The rule shall
provide for objective analysis and reporting to the compact
partners and to the elected officials of the state.
(c) In addition to authorizing the commission and the council
to enter into state compacts pursuant to subsections (a) and (b) of
this section, it is the intent of the Legislature to encourage them
strongly to develop implementation plans together with other
members of the public higher education community to achieve system
and institutional goals and objectives which are consistent with
and supportive of the goals and objectives established in this
article and section one-a, article one of this chapter.
(1) At a minimum, each implementation plan shall contain the
following elements:
(A) Identification of the goal and the objectives to be
achieved;
(B) Identification of the parties to the implementation plan
and a process for developing consensus among the parties;
(C) A needs assessment or other mechanism to determine current
status of the proposed objectives, including a survey of available
resources and other data relevant to achieving the objectives;
(D) Identification of challenges or barriers to meeting
objectives;
(E) Delineation of tasks to be performed;
(F) A specific time line for meeting objectives;
(G) An evaluation process administered periodically to
determine progress in meeting the objectives during the life span
of the plan; and
(H) A method for determining success in achieving the
objectives following the closing date established by the time line.
(2) Implementation plans are internal documents developed
among members of the public higher education community and are not
subject to an external approval process.
§18B-1D-7. Findings; establishment of institutional compacts;
compact elements; submission date; review and
approval process; rule required.
(a) The Legislature finds that West Virginia long has
recognized the value of education and, on a per capita income
basis, ranks very high among the states in its investment to
support public education. The Legislature further finds that a
combination of state and national demographic and economic factors
as well as significant changes in methods of course and program
delivery compel both the state and public higher education to
create a process that will strengthen institutional capacity to
provide the services so valued by the citizens of the state and so
essential to promoting economic vitality.
(b) Therefore, each state college and university shall prepare
an institutional compact for submission to the commission and each
community and technical college shall prepare an institutional
compact for submission to the council. When the process herein
provided is completed, the resulting institutional compact
constitutes a negotiated contract between the state institution of higher education and the commission or council, respectively,
containing at a minimum the following basic components:
(1) Institutional strategies for focusing resources on meeting
the goals and objectives set forth in this article and section
one-a, article one of this chapter; and
(2) Commission or council strategies for promoting and
supporting the institution in fulfilling its mission and
objectives, to make it more competitive with its peers and to
ensure the continuity of academic programs and services to its
students.
(c) In addition to the basic contract components described in
subsection (b) of this section, each compact shall contain at least
the following elements:
(1) A determination of the mission of the institution which
specifically addresses changes necessary or expedient to accomplish
the goals and objectives articulated by the state and the
appropriate statewide master plan;
(2) A detailed statement of how the compact is aligned with
and will be implemented in conjunction with the master plan of the
institution;
(3) A comprehensive assessment of education needs within the
institution's geographic area of responsibility;
(4) A strategy to ensure access to comprehensive community and
technical college and workforce development services within each respective region of the state consistent with the mission of the
institution;
(5) Provision for collaboration and brokering of education
services as necessary or expedient to carry out the institutional
mission and meet its objectives;
(6) Provision of student services at the optimum level to
support the institutional mission and to achieve state goals and
objectives;
(7) Strategies for using existing infrastructure and resources
within each region, where feasible, to increase student access
while controlling costs and maintaining academic quality; and
(8) Other public policy objectives or initiatives adopted by
the commission or council pursuant to the intent and purposes of
this article and section one-a, article one of this chapter.
(d) Each institutional compact shall be updated annually and
shall follow the same general guidelines contained in this section.
(e) Development and updating of the institutional compacts is
subject to the following conditions:
(1) The ultimate responsibility for developing and updating
the compacts at the institutional level resides with the board of
advisors or the board of governors, as appropriate. It is the
responsibility of the commission or council to provide technical
assistance as requested and to negotiate with the institution
development of the strategies to promote and support the institution pursuant to subsection (b) of this section;
(2) The commission and the council each shall establish a date
by which institutions under their respective jurisdictions shall
submit their compacts to the commission or council pursuant to the
provisions of this article. The date established by each
state-level coordinating board shall apply uniformly to all
institutions under the jurisdiction of that coordinating board and
shall meet the following additional conditions:
(A) Allow sufficient time for careful analysis of the compacts
by the central office staff and for review by members of the
commission or the council, as appropriate; and
(B) Allow sufficient time for the institutions to make
necessary revisions to the compacts as provided in this section.
(3) The commission and council shall review each compact from
the institutions under their respective jurisdictions and either
adopt the compact or return it with specific comments for change or
improvement. The commission and council, respectively, shall
continue this process as long as each considers advisable;
(4) By the first day of May annually, if the institutional
compact of any institution as presented by that institution is not
adopted by the respective commission or council, then the
commission or council is empowered and directed to develop and
adopt the institutional compact for the institution and the
institution is bound by the compact so adopted; and
(5) As far as practicable, the commission and council each
shall establish uniform processes and forms for the development and
submission of the institutional compacts by the institutions under
their respective jurisdictions, taking into consideration the
differences in institutional missions and objectives. As a part of
this function, the commission and council each shall organize the
statements of legislative goals and objectives contained in this
article and section one-a, article one of this chapter in a manner
that facilitates the purposes therein.
(f) Assignment of geographic areas of responsibility. --
(1) The commission shall assign geographic areas of
responsibility to the state institutions of higher education under
its jurisdiction, except for the state institutions of higher
education known as West Virginia School of Osteopathic Medicine,
Marshall University and West Virginia University. For institutions
other than the state institutions of higher education known as West
Virginia School of Osteopathic Medicine, Marshall University and
West Virginia University, the geographic areas of responsibility
are made a part of their institutional compacts to ensure that all
areas of the state are provided necessary programs and services to
achieve state goals and objectives. The commission and the council
each shall develop data-based measures to determine the extent to
which institutions under their respective jurisdictions are
providing higher education services aligned with state goals and objectives and institutional missions within their geographic areas
of responsibility. This information shall be reported in the
statewide report card established pursuant to section eight of this
article.
(2) The council shall assign geographic areas of
responsibility to the state institutions of higher education under
its jurisdiction, including the administratively linked institution
known as Marshall Community and Technical College, the
administratively linked institution known as the Community and
Technical College at West Virginia University Institute of
Technology and the regional campus known as West Virginia
University at Parkersburg.
(3) The geographic areas of responsibility for the state
institutions of higher education known as West Virginia School of
Osteopathic Medicine, Marshall University and West Virginia
University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts
include measures of programs and services by geographic area
throughout the assigned geographic area of responsibility.
(g) The compacts shall contain benchmarks to be used to
determine progress toward meeting the objectives established in the
compacts. The benchmarks shall meet the following criteria:
(1) They shall be objective;
(2) They shall be directly linked to the objectives in the compacts;
(3) They shall be measured by the indicators described in
subsection (h) of this section; and
(4) Where applicable, they shall be used to measure progress
in geographic areas of responsibility.
(h) The rules required by subsection (c), section one of this
article shall include indicators which measure the degree to which
the goals and objectives set forth in this article and section
one-a, article one of this chapter are being met by the
institutions under the jurisdiction of the commission and the
council, respectively.
(1) The rules pertaining to benchmarks and indicators in
effect for the commission and the council on the effective date of
this section remain in effect for the institutions under their
respective jurisdictions until amended, modified, repealed or
replaced by the commission or the council, respectively, pursuant
to the provisions of this article, section six, article one of this
chapter and article three-a, chapter twenty-nine-a of this code.
(2) The rules shall set forth at least the following as
pertains to all state institutions of higher education:
(A) The indicators used to measure the degree to which the
goals and objectives are being met;
(B) Uniform definitions for the various data elements to be
used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to
provide the following information:
(i) Measurable evidence that the pursuits of the institution
are focused on the education needs of the citizens of the state and
are aligned with the objectives of the institutional compacts and
statewide master plans;
(ii) Delineation of the objectives and benchmarks for an
institution so that the commission or council can precisely measure
the degree to which progress is being made toward achieving the
goals and objectives provided in this article and section one-a,
article one of this chapter; and
(iii) Identification of specific objectives within the master
plan or compact of an institution that are not being met or toward
which sufficient progress is not being made.
(3) In addition to any other requirement, the rule established
by the council shall set forth at least the following as pertains
to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify
the following:
(i) The degree to which progress is being made by institutions
toward meeting state goals and objectives and the essential
conditions for community and technical college education pursuant
to section three, article three-c of this chapter;
(ii) Information and data necessary to be considered by the
council in making the determination required by section three,
article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to
provide clear evidence to support an objective determination by the
council that an institution's progress toward achieving state goals
and objectives and the essential conditions for community and
technical college education is so deficient that implementation of
the provisions of section four, article two-c of this chapter is
warranted and necessary.
(i) The commission and the council, respectively, shall
approve the compacts developed for the institutions under their
respective jurisdictions by the boards of governors or the boards
of advisors pursuant to this section and consistent with the powers
and duties prescribed in section four, article two-a of this
chapter and section one, article six of this chapter.
§18B-1D-8. Institutional and system report cards.
(a) The purpose of the institutional and statewide report
cards is to make information available to parents, students,
faculty, staff, state policymakers and the general public on the
quality and performance of public higher education. The focus of
the report cards is to determine annual progress of the commission,
the council and institutions under their respective jurisdictions
toward achieving state goals and objectives identified in this article and section one-a, article one of this chapter and system
goals and objective contained in the statewide master plans of the
commission and council created pursuant to section five of this
article.
(b) The information contained in the report cards shall be
consistent and comparable between and among state institutions of
higher education. If applicable, the information shall allow for
easy comparison with higher education-related data collected and
disseminated by the Southern Regional Education Board, the United
States Department of Education and other education data-gathering
and data-disseminating organizations upon which state policymakers
frequently rely in setting policy.
(c) The rules required by subsection (c), section one of this
article shall provide for the collection, analysis and
dissemination of information on the performance of the state
institutions of higher education, including health sciences
education, in relation to the findings, goals and objectives set
forth in this article and section one-a, article one of this
chapter and those contained in the statewide master plans of the
commission and council developed pursuant to section five of this
article.
(1) The objective of this portion of the rule is to ensure
that the Legislative Oversight Commission on Education
Accountability and others identified in subsection (a) of this section are provided with full and accurate information while
minimizing the institutional burden of recordkeeping and reporting.
(2) This portion of the rule shall identify various indicators
of student and institutional performance that, at a minimum, must
be reported annually, set forth general guidelines for the
collection and reporting of data and provide for the preparation,
printing and distribution of report cards under this section.
(d) The report cards shall be analysis-driven, rather than
simply data-driven, and shall present information in a format that
can inform education policymaking. They shall include an executive
summary which outlines significant trends, identifies major areas
of concern and discusses progress toward meeting state and system
goals and objectives. They shall be brief and concise, reporting
required information in nontechnical language. Any technical or
supporting material to be included shall be contained in a separate
appendix.
(e) The statewide report card shall include the data for each
separately listed, applicable indicator identified in the rule
promulgated pursuant to subsection (c) of this section and the
aggregate of the data for all public institutions of higher
education.
(f) The statewide report card shall be prepared using actual
institutional, state, regional and national data, as applicable and
available, indicating the present performance of the individual institutions, the governing boards and the state systems of higher
education. Statewide report cards shall be based upon information
for the current school year or for the most recent school year for
which the information is available, in which case the year shall be
clearly noted.
(g) The president or chief executive officer of each state
institution of higher education shall prepare and submit annually
all requested data to the commission at the times established by
the commission.
(h) The higher education central office staff, under the
direction of the Vice Chancellor for Administration, shall provide
technical assistance to each institution and governing board in
data collection and reporting and is responsible for assembling the
statewide report card from information submitted by each governing
board.
(i) The statewide report card shall be completed and
disseminated with copies to the Legislative Oversight Commission on
Education Accountability prior to the first day of January of each
year and the staff of the commission and the council shall prepare
a report highlighting specifically the trends, progress toward
meeting goals and objectives and major areas of concern for public
higher education, including medical education, for presentation to
the Legislative Oversight Commission on Education Accountability at
the interim meetings in January, two thousand nine, and annually thereafter.
(j) Notwithstanding any other provisions of this code to the
contrary, the following statutorily mandated reports are not
required to be prepared and submitted annually unless a member of
the Legislature makes a specific request for a particular report:
(1) An annual report, pursuant to subsection (a), section
forty-eight, article three, chapter five-a of this code, on vehicle
fleets;
(2) An annual report, pursuant to subsection (e), section ten,
article one of this chapter, on plans, accomplishments and
recommendations in implementing a cooperative relationship between
Potomac State College and Eastern West Virginia Community and
Technical College;
(3) An annual report, pursuant to paragraphs (A) and (B),
subdivision (10), subsection (a), section four, article one-b of
this chapter, concerning higher education performance and
enrollment data;
(4) An annual report, pursuant to paragraph (A), subdivision
(11), subsection (b), section six, article two-b of this chapter,
concerning community and technical college performance;
(5) An annual report, pursuant to subsection (b), section
seven, article five of this chapter, on all sales of obsolete,
unusable or surplus commodities;
(6) An annual report, pursuant to section eight, article five of this chapter, on purchases from West Virginia businesses;
(7) An annual report, pursuant to subsection (j), section one,
article ten of this chapter, on the amount of auxiliary fees
collected to replace state funds subsidizing auxiliary services;
(8) An annual report, pursuant to subsection (c), section
five, article thirteen of this chapter, on technical assistance
provided to qualified businesses within approved research parks,
research zones or technology centers;
(9) An annual report, pursuant to subsection (e), section six,
article eighteen of this chapter, on the status of the Eminent
Scholars Endowment Trust Fund; and
(10) An annual report, pursuant to subsection (e), section
one, article three, chapter eighteen-c of this code, relevant to
the health education loan program.
(k) For a reasonable fee, the Vice Chancellor for
Administration shall make copies of the report cards, including any
appendices of supporting material, available to any individual
requesting them.
ARTICLE 14. MISCELLANEOUS.
§18B-14-9. Legislative findings; establishment of study committee;
membership; recommendations on higher education
facilities.
(a) The Legislature finds that it is in the best interest of
the state to have an effective and comprehensive system for the delivery of public higher education programs. West Virginia is one
of the very few states in the nation which does not address higher
education capital project and facilities maintenance needs through
a statewide plan. State institutions of higher education vary
widely in their ability to incur debt for capital projects and the
conditions of their facilities infrastructure. Some institutions
have incurred substantial amounts of debt to address capital needs,
while other institutions have not.
The Legislature further finds that average tuition and fees
for current and former administratively linked community and
technical colleges rank well above the national average primarily
because of the capital fees that students at those institutions
have to pay. The large amount of capital fees that students must
pay at the institution level contributes significantly to the poor
grade the state receives each year in the category of
"Affordability" on "Measuring Up: The National Report Card on
Higher Education". Net college costs for state students who come
from families in the lowest forty percent of the population in
terms of income to attend community and technical colleges and
four-year colleges and universities in West Virginia represent
about forty-five percent of their family's annual income and there
are few low-cost college opportunities.
The Legislature further finds that the high cost of capital
fees contributes directly to the amount of debt incurred by students during their college years. The debt load, in turn,
severely limits students' career choices and often dictates their
place of residence after graduation.
(b) It is the responsibility of the Legislature to determine
how to make the best use of available resources and how best to
address the problems outlined in subsection (a) of this section.
Therefore, the Joint Committee on Government and Finance shall
create a committee for the purposes of making a specific and
detailed analysis of higher education capital project and
facilities maintenance needs and providing recommendations to the
Legislature.
(c) The committee consists of the following members:
(1) The President of the Senate or designee;
(2) The Speaker of the House of Delegates or designee;
(3) The chairs of the Senate and House of Delegates Committees
on Education, who shall cochair the committee;
(4) The vice chairs of the Senate and House of Delegates
Committees on Education;
(5) The chairs of the Senate and House of Delegates Committees
on Finance or their designees;
(6) The cochairs of the Joint Commission on Economic
Development or their designees;
(7) Two members each from the Senate Committees on Finance and
Education appointed by the President of the Senate; and
(8) Two members each from the House Committees on Finance and
Education appointed by the Speaker of the House.
(d) The committee shall develop and recommend a state-level
facilities plan which includes, but is not limited to, the
following:
(1) A review of capital project and facilities maintenance
needs of all state institutions of higher education and
recommendations for addressing those needs;
(2) Recommendations concerning the appropriate capital debt
load that reasonably should be maintained by the commission,
council and state institutions of higher education;
(3) Recommendations for a funding mechanism to reduce the
obligation of students and parents to bear the cost of higher
education capital projects and facilities maintenance;
(4) Recommendations for maximizing changes in bonding capacity
that will occur in two thousand twelve;
(5) Development of a uniform definition of deferred
maintenance;
(6) Recommendations for an appropriate mechanism to target a
percentage of state capital contributions to address deferred
maintenance needs; and
(7) Recommendations for a transparent methodology to set
priorities for funding capital projects.
(e) The committee shall commence its work on or before the fifteenth day of May, two thousand eight, and shall deliver its
recommendations, together with draft legislation to implement the
recommendations, to the Legislative Oversight Commission on
Education Accountability and the Joint Committee on Government and
Finance by the first day of December, two thousand eight.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 595--A Bill to repeal §18B-1-1, §18B-1-1b
and §18B-1-1c of the Code of West Virginia, 1931, as amended; to
repeal §18B-1A-1 and §18B-1A-2 of said code; to repeal §18B-1B-8
and §18B-1B-9 of said code; to repeal §18B-3B-1 and §18B-3B-2 of
said code; to repeal §18B-11-5 of said code; to amend and reenact
§18-1-4 of said code; to amend and reenact §18-2E-5c of said code;
to amend and reenact §18B-1-1a of said code; to amend said code by
adding thereto a new article, designated §18B-1D-1, §18B-1D-2,
§18B-1D-3, §18B-1D-4, §18B-1D-5, §18B-1D-6, §18B-1D-7 and
§18B-1D-8; and to amend said code by adding thereto a new section,
designated §18B-14-9, all relating to education generally;
establishing Vision 2020: An Education Blueprint for Two Thousand
Twenty; requiring State Board of Education plan that includes
goals, objectives, strategies, indicators and benchmarks;
specifying certain public education goals and objectives to be
included in plan; submission of plan to Process for Improving Education Council; purposes and membership of council; providing
legislative findings, intent and purposes; establishing goals for
public higher education; creating education partnership to achieve
state goals and objectives; establishing elements of higher
education accountability system; requiring Higher Education Policy
Commission and Council for Community and Technical College
Education to propose rules by certain date; defining terms;
specifying objectives and priorities; establishing date to achieve
certain objectives and priorities; defining responsibilities of
Higher Education Policy Commission, Council for Community and
Technical College Education and state institutions of higher
education relative to accountability system; requiring system
master plans, state compacts, institutional compacts and
institutional and system report cards; establishing submission,
approval, review and reporting requirements; authorizing
implementation plans; assigning geographic areas of responsibility;
specifying that certain reports are no longer required to be
prepared annually except under certain conditions; providing for
committee to examine higher education facility needs; specifying
membership; and requiring recommendations to Legislative Oversight
Commission on Education Accountability by certain date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 595, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 595) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 595) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 596, Relating to
Streamlined Sales and Use Tax Agreement.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page thirty-two, section two, line five hundred ninety-one,
following the paragraph designation (A), by striking out the word
"Lay" and inserting in lieu thereof the word "Clay";
On pages thirty-seven and thirty-eight, section two, lines six
hundred eighty-eight through seven hundred seven, by striking out
all of subdivision (57);
And renumbering the remaining subdivisions;
On page forty-four, section two-b, line twenty-four, after the
word "service'" by inserting the words "or 'telecommunication
service'".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 596, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 596) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 596) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 641, Creating Water Resources Protection
and Management Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
22-26-1. Short title; legislative findings.
(a) Short title. -- This article may be known and cited as the
Water Resources Protection and Management Act.
(b) Legislative findings. --
(1) The West Virginia Legislature finds that it is the public
policy of the State of West Virginia to protect and conserve the
water resources for the state and to provide for the public
welfare. The state's water resources are vital natural resources of the state that are essential to maintain, preserve and promote
quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the
public policy of the state that the water resources of the state be
available for the benefit of the citizens of West Virginia,
consistent with and preserving all other existing rights and
remedies recognized in common law or by statute, while also
preserving the resources within its sovereign powers for the common
good.
(3) The West Virginia Legislature further finds that the water
use survey conducted by the Department of Environmental Protection
is a valuable tool for water resources assessment, protection and
management.
(4) The West Virginia Legislature further finds that the water
resources of this state have not been fully measured or assessed
and that a program to accurately measure and assess the state's
water resources is necessary to protect, conserve and better
utilize the water resources of this state.
(5) The West Virginia Legislature further finds that the
survey information collected and analyzed by the Department of
Environmental Protection has identified the need for a statewide
water resources management plan.
(6) The West Virginia Legislature further finds that the
development of a state water resources management plan is in the best interest of the state and its citizens and will promote the
protection of this valuable natural resource; promote its use for
the public good; and enhance its use and development for tourism,
industry and other economic development for the benefit of the
state and its citizens.
(7) The West Virginia Legislature further finds that
incomplete data collection from an inadequate groundwater
monitoring system continues to hamper efforts to study, develop and
protect the state's water resources and will be a major obstacle in
the development of a water resources management plan.
§22-26-2.Definitions.
For purposes of this article, the following words have the
meanings assigned unless the context indicates otherwise:
(a) "Baseline average" means the average amount of water
withdrawn by a large quantity user over a representative historical
time period as defined by the secretary.
(a) (b) "Beneficial use" means uses that include, but are not
limited to, public or private water supplies, agriculture, tourism,
commercial, industrial, coal, oil and gas and other mineral
extraction, preservation of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and preservation of
cultural values.
(c) "Commercial well" means a well that serves small
businesses and facilities in which water is the prime ingredient of the service rendered.
(d) Community water system" means a public water system that
pipes water for human consumption to at least fifteen service
connections used by year-round residents or one that regularly
serves at least twenty-five residents.
(b) (e) "Consumptive withdrawal" means any withdrawal of water
which returns less water to the water body than is withdrawn.
(c) (f) "Farm use" means irrigation of any land used for
general farming, forage, aquaculture, pasture, orchards, nurseries,
the provision of water supply for farm animals, poultry farming or
any other activity conducted in the course of a farming operation.
(g) "Industrial well" means a well used in industrial
processing, fire protection, washing, packing or manufacturing of
a product excluding food and beverages, or similar nonpotable uses.
(d) (h) "Interbasin transfer" means the permanent removal of
water from the watershed from which it is withdrawn.
(i) "Large quantity user" means any person who withdraws over
seven hundred fifty thousand gallons of water in a calendar month
from the state's waters and any person who bottles water for resale
regardless of quantity withdrawn.
(e) (j) "Maximum potential" means the maximum designed
capacity of a facility to withdraw water under its physical and
operational design.
(k) "Noncommunity nontransient water system" means a public water system that serves at least twenty-five of the same persons
over six months per year.
(g) (l) "Nonconsumptive withdrawal" means any withdrawal of
water which is not a consumptive withdrawal as defined in this
section.
(f) (m) "Person", "persons" or "people" means an individual,
public and private business or industry, public or private water
service and governmental entity.
(h) (n) "Secretary" means the Secretary of the Department of
Environmental Protection or his or her designee.
(o) "Transient water system" means a public water system that
serves at least twenty-five transient people at least sixty days a
year.
(p) "Test well" means a well that is used to obtain
information on groundwater quantity, quality, aquifer
characteristics and availability of production water supply for
manufacturing, commercial, and industrial facilities.
(i) (q) "Water resources", "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial
settling basins and ponds and waste treatment facilities are
excluded from the waters of the state.
(j) (r) "Watershed" means a hydrologic unit utilized by the
United States Department of Interior's geological survey, adopted
in one thousand nine hundred seventy-four, as a framework for
detailed water and related land-resources planning , denoted by an
eight digit hydrologic unit code, and by which West Virginia is, as
of the effective date of the act, divided into thirty-two separate
hydrologic units.
(k) (s) "Withdrawal" means the removal or capture of water
from a water resources of the state regardless of whether it is
consumptive or nonconsumptive: Provided, That water encountered
during coal, oil, gas, water well drilling and initial testing of
water wells, or other mineral extraction and diverted, but not used
for any purpose and not a factor in low-flow conditions for any
surface water or groundwater, is not deemed a withdrawal.
§22-26-3. Waters claimed by state; water resources protection
survey; registration requirements; agency
cooperation; information gathering.
(a) The waters of the State of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it
is necessary for the state to determine the nature and extent of
its water resources, the quantity of water being withdrawn or
otherwise used and the nature of the withdrawals or other uses:
Provided, That no provisions of this article may be construed to
amend or limit any other rights and remedies created by statute or
common law in existence on the date of the enactment of this
article.
(b) The secretary shall conduct a an ongoing water resources
survey of consumptive and nonconsumptive surface water and
groundwater withdrawals by large quantity users in this state. The
secretary shall determine the form and format of the information
submitted, including the use of electronic submissions. The survey
shall collect information covering the years two thousand three,
two thousand four and two thousand five. The secretary shall
establish and maintain a statewide registration program to monitor
large quantity users of water resources of this state beginning in
two thousand six.
(c) Beginning in the year two thousand three, every person
utilizing the state's water resources whose withdrawal from a water
resources during any month exceeds seven hundred fifty thousand
gallons Large quantity users, except those who purchase water from
a public or private water utility or other service that is
reporting its total withdrawal, shall register with the Department of Environmental Protection and provide all requested survey
information regarding withdrawals of the water resources. Multiple
withdrawals of water from a particular state water resources that
are made or controlled by a single person and used at one facility
or location shall be considered a single withdrawal of water.
Water withdrawals for self-supplied farm use and private households
will be estimated. Water utilities regulated by the Public Service
Commission pursuant to article two, chapter twenty-four of this
code are exempted from providing information on interbasin
transfers to the extent those transfers are necessary to provide
water utility services within the state.
(d) Except as provided in subsection (f) of this section,
large quantity users who withdraw water from a West Virginia water
resource shall comply with the survey and registration requirements
of this article. Registration shall be maintained by every large
quantity user by certifying, on forms and in a manner prescribed by
the secretary, that the amount withdrawn in the previous calendar
year varies by no more than ten percent from the users' baseline
average or by certifying the change in usage.
(e) The secretary shall maintain a listing of all large
quantity users and each such user's baseline average water
withdrawal.
(d) (f) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are withdrawing water from an in-state water resources but who are
located outside the state borders.
(e) (g) All state agencies and local governmental entities
that have a regulatory, research, planning or other function
relating to water resources, including, but not limited to, the
State Geological and Economic Survey, the Division of Natural
Resources, the Public Service Commission, the Bureau for Public
Health, the Commissioner of the Department of Agriculture, the
Office of Emergency Services Division of Homeland Security and
Emergency Management, Marshall University, and West Virginia
University and regional, county and municipal planning authorities
may enter into interagency agreements with the secretary and shall
cooperate by: (i) Providing information relating to the water
resources of the state; and (ii) providing any necessary assistance
to the secretary in effectuating the purposes of this article; and
(iii) assisting in the development of a state water resources
management plan. The secretary shall determine the form and format
of the information submitted by these agencies.
(f) (h) Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(g) (i) Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the
facility's intake pumps necessary to operate the facility during a
calendar day.
(h) (j) The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Registered persons that report
withdrawals on an annual basis for a period of three consecutive
years are not required to register further withdrawals unless the
amount withdrawn annually varies by more than ten percent from the
three-year average. Altering locations of intakes and discharge
points that result in an impact to the withdrawal of the water
resources by an amount of ten percent or more from the consecutive
three-year baseline average shall also be reported.
(i) The secretary shall report regularly to the joint
legislative oversight commission on state water resources to advise
the commission of the progress of the survey as well as any problems that may be encountered in conducting the survey and to
make recommendations on policy and statutory changes that may be
needed.
(j) Upon completion of the survey, the secretary shall file a
final report with the joint committee on government and finance no
later than the thirty-first day of December, two thousand six. In
preparing the final report the secretary shall consult with the
Commissioner of the Department of Agriculture, the Bureau for
Public Health, the Division of Natural Resources and the Public
Service Commission. The final report shall include the following:
(1) To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
state;
(2) A discussion of the consumptive and nonconsumptive
withdrawals of surface water and groundwater in this state;
(3) A listing of each person whose consumptive or
nonconsumptive withdrawal during any single month during the
calender year exceeds seven hundred fifty thousand gallons,
including the amount of water used, location of the water
resources, the nature of the use, location of each intake and
discharge point by longitude and latitude where available and, if
the use involves more than one watershed or basin, the watersheds
or basins involved and the amount transferred;
(4) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area;
(5) Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resources;
(6) Discussion of a potential groundwater well network that
provides indicators that groundwater levels in an area are
declining or are expected to decline excessively;
(7) Potential growth areas where competition for water
resources may be expected;
(8) Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere with one
another;
(9) Discussion of practices or methods persons have
implemented to reduce water withdrawals; and
(10) Any other information that may be beneficial in providing
adequate and accurate survey information, adequately assessing
water availability and withdrawal and in determining the need for
and the preparation of water resources plans.
(k) The secretary shall report annually to the Joint
Legislative Oversight Commission on State Water Resources on the
survey results. The secretary shall make a progress report every three years on the development of the state water resources
management plan and any significant changes that may have occurred
since the survey report was submitted in two thousand six.
(k) (l) In addition to any requirements for completion of the
survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(l) (m) Upon completion of the survey, the The secretary shall
make recommendations to the joint legislative oversight commission
created in section five of this article relating to the need to
implement implementation of a water quantity management strategy
for the state or regions of the state where the quantity of water
resources are found to be currently stressed or likely to be
stressed due to emerging beneficial or other uses, ecological
conditions or other factors requiring the development of a strategy
for management of these water resources. The report shall include
an analysis of the costs and benefits upon persons potentially
impacted by the implementation of a water quantity management
strategy.
(m) (n) The secretary may propose rules pursuant to article
three, chapter twenty-nine-a of this code as necessary to implement
the survey and registration or plan requirements of this article.
(n) (o) The secretary is authorized to enter into cooperative
agreements with the United States Geological Survey local, state
and federal agencies and private policy or research groups to
obtain federal matching funds, conduct research and analyze survey
and registration data and other agreements as may be necessary to
carry out his or her duties under this article.
§22-26-5. Joint Legislative Oversight Commission on State Water
Resources.
(a) The President of the Senate and the Speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey,
and registration and development of a state water resources
management plan. This commission shall be known as the Joint
Legislative Oversight Commission on State Water Resources and shall
regularly investigate and monitor all matters relating to the water
resources survey and the need for a water Resources strategy and
policy plan.
(b) The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other personnel
are to be approved by the Joint Committee on Government and Finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in
sufficient detail for the commission to monitor the water Resources
survey and to develop recommendations resulting from the survey.
The secretary shall submit an annual report to the commission by
the thirty-first day of December each year. The secretary shall
also file a final report on the water Resources survey no later
than the thirty-first day of December, two thousand six.
§22-26-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will
provide critical information for protection of the state's water
resources and, thus, mandatory compliance with the survey and
registry is necessary.
(b) All large quantity users who withdraw water from a West
Virginia water resource shall complete the survey and register such
use with the Department of Environmental Protection. Any person
who fails to complete the survey or register, provides false or
misleading information on the survey or registration, or fails to
provide other information as required by this article may be
subject to a civil administrative penalty not to exceed five
thousand dollars to be collected by the secretary consistent with
the secretary's authority pursuant to this chapter. Every thirty
days after the initial imposition of the civil administrative
penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to
comply with this section thirty days prior to assessing the first
administrative penalty.
§22-26-7. Secretary authorized to log wells; collect data.
In order to obtain important information about the state's
surface and groundwater, the secretary is authorized to collect
scientific data on surface and groundwater and to enter into
agreements with local and state agencies, the federal government
and private entities to obtain this information.
(1) Any person who installs water extraction a community water
system, noncommunity nontransient water system, transient water
system, commercial well, industrial or test well, except those
wells used for a residential, single family water supply, shall
notify the secretary of his or her intent to drill a water well no
less than thirty ten days prior to commencement of drilling. The
ten-day notice is the responsibility of the owner, but may be given
by the drilling contractor.
(2) The secretary has the authority to gather data, including
driller and geologist logs, run electric and other remote-sensing
logs and devices and perform physical characteristics tests on
nonresidential and multifamily water wells.
(3) The drilling contractor shall submit to the secretary a
copy of the well completion forms submitted to the Department of
Health for a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial
or test well. The drilling contractor shall provide the well GPS
location on the well report.
(3) (4) Any person who fails to notify the secretary prior to
drilling a well or impedes collection of information by the
secretary under this section is in violation of the Water Resources
Protection and Management Act and is subject to the civil
administrative penalty authorized by section six of this article.
(5) Any well contracted for construction by the secretary for
groundwater or geological testing must be constructed at a minimum
to well design standards as promulgated by the Division of Health.
Any wells contracted for construction by the secretary for
groundwater or geological testing that would at a later date be
converted to a public use water well must be constructed to comport
to state public water design standards.
§22-26-8. State water resources management plan; powers and duty
of secretary.
(a) The Secretary of the Department of Environmental
Protection shall oversee the development of a State Water Resources
Management Plan to be completed no later than the thirtieth day of
November, two thousand thirteen. The plan shall be reviewed and
revised as needed after its initial adoption. The plan shall be
developed with the cooperation and involvement of local and state
agencies with regulatory, research or other functions relating to water resources including, but not limited to, those agencies and
institutions of higher education set forth in section three of this
article and a representative of large quantity users. The State
Water Resources Management Plan shall be developed utilizing the
information obtained pursuant to said section and any other
relevant information available to the secretary.
(b) The secretary shall develop definitions for use in the
State Water Resources Management Plan for terms that are defined
differently by various state and federal governmental entities as
well as other terms necessary for implementation of this article.
(c) The secretary shall continue to develop and obtain the
following:
(1) An inventory of the surface water resources of each region
of this state, including an identification of the boundaries of
significant watersheds and an estimate of the safe yield of such
sources for consumptive and nonconsumptive uses during periods of
normal conditions and drought.
(2) A listing of each consumptive or nonconsumptive withdrawal
by a large quantity user, including the amount of water used,
location of the water resources, the nature of the use, location of
each intake and discharge point by longitude and latitude where
available and, if the use involves more than one watershed or
basin, the watersheds or basins involved and the amount
transferred.
(3) A plan for the development of the infrastructure necessary
to identify the groundwater resources of each region of this state,
including an identification of aquifers and groundwater basins and
an assessment of their safe yield, prime recharge areas, recharge
capacity, consumptive limits and relationship to stream base flows.
(4) After consulting with the appropriate state and federal
agencies, assess and project the existing and future nonconsumptive
use needs of the water resources required to serve areas with
important or unique natural, scenic, environmental or recreational
values of national, regional, local or statewide significance,
including national and state parks; designated wild, scenic and
recreational rivers; national and state wildlife refuges; and the
habitats of federal and state endangered or threatened species.
(5) Assessment and projection of existing and future
consumptive use demands.
(6) Identification of potential problems with water
availability or conflicts among water uses and users including, but
not limited to, the following:
(A) A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area; and
(B) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resources.
(7) Establish criteria for designation of critical water
planning areas comprising any significant hydrologic unit where
existing or future demands exceed or threaten to exceed the safe
yield of available water resources.
(8) An assessment of the current and future capabilities of
public water supply agencies and private water supply companies to
provide an adequate quantity and quality of water to their service
areas.
(9) An assessment of flood plain and stormwater management
problems.
(10) Efforts to improve data collection, reporting and water
monitoring where prior reports have found deficiencies.
(11) A process for identifying projects and practices that are
being, or have been, implemented by water users that reduce the
amount of consumptive use, improve efficiency in water use, provide
for reuse and recycling of water, increase the supply or storage of
water or preserve or increase groundwater recharge and a
recommended process for providing appropriate positive recognition
of such projects or practices in actions, programs, policies,
projects or management activities.
(12) An assessment of both structural and nonstructural
alternatives to address identified water availability problems, adverse impacts on water uses or conflicts between water users,
including potential actions to develop additional or alternative
supplies, conservation measures and management techniques.
(13) A review and evaluation of statutes, rules, policies and
institutional arrangements for the development, conservation,
distribution and emergency management of water resources.
(14) A review and evaluation of water resources management
alternatives and recommended programs, policies, institutional
arrangements, projects and other provisions to meet the water
resources needs of each region and of this state.
(15) Proposed methods of implementing various recommended
actions, programs, policies, projects or management activities.
(d) The state water resources management plan shall consider:
(1) The interconnections and relationships between groundwater
and surface water as components of a single hydrologic resource.
(2) Regional or watershed water resources needs, objectives
and priorities.
(3) Federal, state and interstate water resource policies,
plans, objectives and priorities, including those identified in
statutes, rules, regulations, compacts, interstate agreements or
comprehensive plans adopted by federal and state agencies and
compact basin commissions.
(4) The needs and priorities reflected in comprehensive plans
and zoning ordinances adopted by a county or municipal government.
(5) The water quantity and quality necessary to support
reasonable and beneficial uses.
(6) A balancing and encouragement of multiple uses of water
resources, recognizing that all water resources of this state are
capable of serving multiple uses and human needs, including
multiple uses of water resources for reasonable and beneficial
uses.
(7) The distinctions between short-term and long-term
conditions, impacts, needs and solutions to ensure appropriate and
cost-effective responses to water resources issues.
(8) Application of the principle of equal and uniform
treatment of all water users that are similarly situated without
regard to established political boundaries.
(e) In November of each year, the secretary shall report to
the Joint Legislative Oversight Commission on State Water Resources
on the state water resources management plan. The report on the
water resources plan shall include benchmarks for achieving the
plan's goals and time frames for meeting them.
(f) Upon adoption of the state water resources management plan
by the Legislature, the report requirements of this article shall
be superceded by the plan and subsequent reports shall be on the
survey results and the water resources plan. If the plan is not
adopted a detailed report discussing the provisions of this section
as well as progress reports on the development of the plan shall be submitted every three years.
§22-26-9. Regional water resources management plans; critical
planning areas.
(a) As part of the state water resources management plan, the
secretary may designate areas of the state as regional or critical
water planning areas for the development of regional or critical
area water resources management plans.
(b) The secretary shall establish a timetable for completion
of regional and critical area plans which may be developed.
(c) The secretary shall identify all federal and state
agencies, county commissions, municipal governments and watershed
associations that should be involved in the planning process and
any compacts or interstate agreements that may be applicable to the
development of a regional or critical area water resource
management plan.
(d) The secretary shall establish the minimum requirements for
any issues to be addressed by regional and critical area plans
within twelve months of the amendment and reenactment of this
article during the two thousand eight regular session of the
Legislature. The plan requirements and issues to be addressed by
regional and critical area plans shall be consistent with the state
plan requirements of this article.
(e) The secretary shall establish timetables for the
completion of tasks or phases in the development of regional and critical area plans. County commissions and municipal governments
may recommend changes in the order in which the tasks and phases
must be completed. The secretary shall have final authority to
determine the schedule for development of a plan.
(f) Any county or municipal government may enter into an
agreement with the secretary to designate a local planning area and
develop a local plan which may include all or part of a region.
The secretary shall assist in development of any such plan to the
extent practicable with existing staff and funding.
(g) Plans developed by a county or municipal government shall
comply with the secretary's requirements and shall be filed as part
of the state water resources management plan.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 641, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 641) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 657, Creating Alcohol and
Drug-Free Workplace Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §21-1D-1, §21-1D-2,
§21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-7a, §21-
1D-8 and §21-1D-9, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
§21-1D-1. Short title.
This article shall be called the West Virginia Alcohol and
Drug-Free Workplace Act.
§21-1D-2. Definitions.
(a) The term "alcohol test" means a procedure conducted to
determine if an individual is under the influence of alcohol.
(b) The term "construction", as used in this article, means
any construction, reconstruction, improvement, enlargement,
painting, decorating or repair of any public improvement let to
contract. The term "construction" does not include temporary or
emergency repairs.
(c) The term "contractor" means any employer working on a
public improvement without regard to whether they are serving as
the prime or subcontractor to another.
(d) The term "drug test" means a procedure using a nine-panel
drug screen in urine specimens that are collected from individuals
for the purpose of scientifically analyzing the specimens to
determine if the individual ingested, was injected or otherwise
exposed to a drug of abuse.
(e) The term "drug of abuse" means any substance listed under
subsection (h) of this section.
(f) The term "employee" means a laborer, mechanic or other
worker. For the purposes of this article, employee does not
include such persons as are employed or hired directly by a public
authority on a regular or temporary basis engaged exclusively in making temporary or emergency repairs. Furthermore, employee does
not include such persons employed by a contractor who does not work
in public improvement construction.
(g) The term "medical review officer" means a physician who
holds a certificate authorizing them to practice medicine and
surgery or osteopathic medicine and surgery, has knowledge of
substance abuse disorders, has the appropriate medical training to
interpret and evaluate positive drug and alcohol test results
together with a person's medical history and other relevant
biomedical information, has successfully completed qualification
training as outlined in the Code of Federal Regulations at 49 C. F.
R. Part 40 §121 (c) and has passed an exam administered by a
nationally recognized medical review officer certification board or
subspecialty board for medical practitioners in the field of
medical review of federally mandated drug testing.
(h) The term "nine-panel drug screen" means a drug-testing
program that tests for marijuana, cocaine, opiates including
hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines,
barbiturates, benzodiazepines, methadone and propoxyphene at the
substance screening and confirmation limits where provided under
federally mandated drug and alcohol testing programs or otherwise
accepted as the industry standard.
(i) The term "public authority", as used in this article,
means any officer, board or commission or other agency of the State of West Virginia authorized by law to enter into a contract for the
construction of a public improvement, including any institution
supported, in whole or in part, by public funds of the State of
West Virginia and this article applies to expenditures of these
institutions made, in whole or in part, from public funds.
(j) The term "public improvement", as used in this article,
includes all buildings, roads, highways, bridges, streets, alleys,
sewers, ditches, sewage disposal plants, waterworks, airports and
all other structures upon which construction may be let to contract
by the State of West Virginia.
(k) The term "random drug testing" means a procedure in which
employees who perform safety-sensitive tasks are selected to
undergo a drug test by a statistically valid random selection
method without prearrangement or planning.
(l) The term "reasonable cause" means a belief based on facts
and inferences based primarily upon, but not limited to: (1)
Observable phenomena, such as direct observation of use, possession
or distribution of alcohol or a controlled substance, or of the
physical symptoms of being under the influence of alcohol or a
controlled substance, such as, but not limited to, slurred speech,
dilated pupils, odor of an alcoholic beverage or a controlled
substance, changes in affect or dynamic mood swings; (2) a pattern
of abnormal conduct, erratic or aberrant behavior or deteriorating
work performance such as frequent absenteeism, excessive tardiness or recurrent accidents, that appears to be related to the use of
alcohol or a controlled substance and does not appear to be
attributable to other factors; (3) the identification of an
employee as the focus of a criminal investigation into unauthorized
possession, use or trafficking of a controlled substance; (4) a
report of use of alcohol or a controlled substance provided by a
reliable and credible source; and (5) repeated or flagrant
violations of the safety or work rules of the employee's employer,
that are determined by the employee's supervisor to pose a
substantial risk of physical injury or property damage and that
appears to be related to the use of alcohol or a controlled
substance and that does not appear attributable to other factors.
(m) The term "safety-sensitive duty" means any task or duty
fraught with such risks of injury to the employee or others that
even a momentary lapse of attention or judgment, or both, can lead
to serious bodily harm or death.
(n) The term "under the influence of alcohol" means a
concentration of eight hundredths of one percent or more by weight
of alcohol in an individual's blood or a concentration of eight
hundredths of one gram or more by weight of alcohol per two hundred
ten liters of an individual's breath.
§21-1D-3. Statement of policy.
It is hereby declared to be the policy of the State of West
Virginia to require public improvement contractors to have and implement a drug-free workplace policy that requires drug and
alcohol testing.
§21-1D-4. Drug-free workplace policy required for public
improvement construction.
Except as provided in section eight of this article, no public
authority may award a public improvement contract which is to be
let to bid to a contractor unless the terms of the contract require
the contractor and its subcontractors to implement and maintain a
written drug-free workplace policy in compliance with this article
and the contractor and its subcontractors provide a sworn statement
in writing, under the penalties of perjury, that they maintain a
valid drug-free workplace policy in compliance with this article.
The public improvement contract shall provide for the
following:
(1) That the contractor implements its drug-free workplace
policy;
(2) Cancellation of the contract by the awarding public
authority if the contractor:
(A) Fails to implement its drug-free workplace policy;
(B) Fails to provide information regarding implementation of
the contractor's drug-free workplace policy at the request of the
public authority; or
(C) Provides to the public authority false information
regarding the contractor's drug-free workplace policy.
§21-1D-5. Employee drug-free workplace policy required to bid fora
public improvement contract.
After the first day of July, two thousand eight, any
solicitation for a public improvement contract shall require each
contractor that submits a bid for the work to submit at the same
time an affidavit that the contractor has a written plan for a
drug-free workplace policy. A public improvement contract may not
be awarded to a contractor who does not have a written plan for a
drug-free workplace policy, and who has not submitted that plan to
the appropriate contracting authority in timely fashion.
For subcontractors, compliance with this section may take
place before their work on the public improvement is begun.
A drug-free workplace policy shall include the following:
(1) Establish drug testing and alcohol testing protocols that
at a minimum require a contractor to:
(A) Conduct preemployment drug tests of all employees;
(B) Conduct random drug testing that annually tests at least
ten percent of the contractor's employees who perform safety-
sensitive duties;
(C) Conduct a drug test or alcohol test of any employee who
may have caused or contributed to an accident while conducting job
duties where reasonable cause exists to suspect that the employee
may be intoxicated or under the influence of a controlled substance
not prescribed by the employee's physician when, but not limited to, the employer has evidence that an employee is or was using
alcohol or a controlled substance drawn from specific documented,
objective facts and reasonable inferences drawn from these facts in
light of experience and training.
The drug or alcohol test shall be conducted as soon as
possible after the accident occurred and after any necessary
medical attention has been administered to the employee.
(D) Conduct a drug test or alcohol test of any employee when
a trained supervisor has reasonable cause to believe that the
employee has reported to work or is working under the influence of
a drug of abuse or alcohol. Written documentation as to the nature
of a supervisor's reasonable cause shall be created prior to the
release of the test findings.
In order to ascertain and justify implementation of a
reasonable cause test, all supervisors will be trained to recognize
drug and alcohol related signs and symptoms.
(2) Require that all drug tests performed pursuant to this
section be conducted by a laboratory certified by the United States
Department of Health and Human Services or its successor;
(3) Establish standards governing the performance of drug
tests by such a laboratory that include, but are not limited to,
the following:
(A) The collection of urine specimens of individuals in a
scientifically or medically approved manner and under reasonable and sanitary conditions;
(B) The collection and testing of urine specimens with due
regard for the privacy of the individual being tested and in a
manner reasonably calculated to prevent substitutions or
interference with the collection and testing of specimens;
(C) The documentation of urine specimens through procedures
that reasonably preclude the possibility of erroneous
identification of test results and that provide the individual
being tested a reasonable opportunity to furnish information
identifying any prescription or nonprescription drugs used by the
individual in connection with a medical condition to the medical
review officer;
(D) The collection, maintenance, storage and transportation of
urine specimens in a manner that reasonably precludes the
possibility of contamination or adulteration of the specimens;
(E) The testing of a urine specimen of an individual to
determine if the individual ingested, was injected or otherwise
introduced with a drug of abuse in a manner that conforms to
scientifically accepted analytical methods and procedures that may
include verification or and confirmation of any positive test
result by gas chromatography or mass spectrometry.
(4) Establish standards and procedures governing the
performance of alcohol tests;
(5) Require that a medical review officer review all drug tests that yield a positive result;
(6) Establish procedures by which an individual who undergoes
a drug test or alcohol test may contest a positive test result;
(7) Require that when an employee of a contractor tests
positive for a drug of abuse or alcohol, or if an employee is
caught adulterating a drug or alcohol test, as defined in section
four hundred twelve, article four, chapter sixty-a of this code,
the employee shall be subject to appropriate disciplinary measures
up to and including termination from employment, in accordance with
the contractor's written drug-free workplace policy. If not
terminated, the employee shall be subject to random drug or alcohol
tests at any time for one year after the positive test;
(8) Require that when a supervisor has reasonable cause to
believe an employee is under the influence of a drug of abuse or
alcohol at work and requires the employee to take a drug or alcohol
test, the employee shall immediately be suspended from performing
safety-sensitive tasks by the contractor until such time as a drug
or alcohol test is performed and results of that test are
available;
(9) Require a contractor to provide to any employee testing
positive for a drug of abuse or alcohol the opportunity to be
evaluated by a licensed substance abuse professional who can assist
the employee in seeking treatment if needed list of community
resources where employees may seek assistance for themselves or their families as identified in paragraph (D), subsection (12) of
this section;
(10) Require that a contractor assist an employee who
voluntarily acknowledges that the employee may have a substance
abuse problem in locating a suitable substance abuse rehabilitation
program for treatment by providing the list of community resources
where employees may seek assistance for themselves or their
families as identified in paragraph (D), subsection (12) of this
section;
(11) Require that a contractor establish a written drug-free
workplace policy regarding substance abuse and provide a copy of
the written policy to each of its employees and to each applicant
for employment. The written policy shall contain, at a minimum,
all of the following:
(A) A summary of all the elements of the drug-free workplace
policy established in accordance with this article;
(B) A statement that it is the contractor's intention to
create a drug-free workplace environment;
(C) Identification of an employee who has been designated the
contractor's drug-free workplace representative;
(D) Shall list the types of tests an employee may be subject
to, which may include, but are not limited to, the following:
(i) Preemployment;
(ii) Post-accident;
(iii) Random; and
(iv) Reasonable cause.
(12) Require that a contractor provide within six weeks of new
employment at least two hours of drug-free workplace employee
education for all employees and annually thereafter unless that
employee has already received such training anytime within a prior
two year period. The employee shall participate in drug-free
workplace employee education at least biannually thereafter. The
employee education shall include all of the following:
(A) Detailed information about the content of the contractor's
specific drug-free workplace policy and an opportunity for
employees to ask questions regarding the policy;
(B) The distribution of a hard copy of the written drug-free
workplace policy, including collecting an employee-signed
acknowledgment receipt from each employee;
(C) Specific explanation of the basics of drugs and alcohol
abuse, including, but not limited to, the disease model, signs and
symptoms associated with substance abuse, and the effects and
dangers of drugs or alcohol in the workplace; and
(D) A list of community resources where employees may seek
assistance for themselves or their families.
(13) Require that a contractor provide at least two hours of
drug-free workplace supervisor training for all supervisory
employees and annually thereafter. The supervisor training shall include all of the following:
(A) How to recognize a possible drug or alcohol problem;
(B) How to document behaviors that demonstrate a drug or
alcohol problem;
(C) How to confront employees with the problem from observed
behaviors;
(D) How to initiate reasonable suspicion and post-accident
testing;
(E) How to handle the procedures associated with random
testing;
(F) How to make an appropriate referral for assessment and
assistance;
(G) How to follow up with employees returning to work after a
positive test; and
(H) How to handle drug-free workplace responsibilities in a
manner that is consistent with the applicable sections of any
pertinent collective bargaining agreements.
§21-1D-6. Drug-free workplace written policy to be kept posted.
A clearly legible copy of the contractor's written drug-free
workplace policy shall be kept posted in a prominent and easily
accessible place at the public improvement construction site
thereof by each contractor subject to the provisions of this
article.
§21-1D-7. Drug-free workplace records and contents open for inspection.
Every contractor shall keep an accurate record showing the
names, occupation and safety-sensitive status of all employees, in
connection with the construction on the public improvement, and
showing any drug tests or alcohol tests performed and employee
education and supervisor training received, which record shall be
open at all reasonable hours to the for inspection of and by the
public authority which let the contract and its officers and
agents. It is not necessary to preserve the record for a period
longer than three years after the termination of the contract.
§21-1D-7a. Confidentiality; test results not to be used in
criminal and administrative proceedings.
All drug testing information specifically related to
individual employees is confidential and should be treated as such
by anyone authorized to review or compile program records. Drug
test results may not be used in a criminal proceeding without the
employee's consent.
§21-1D-8. Penalties for violation of this article.
(a) Any contractor who violates any provision of this article
is, for the first offense, guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one thousand dollars nor more than five thousand dollars; for the third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than five thousand dollars nor more than twenty-five thousand
dollars and the contractor shall be excluded from bidding any
additional new public improvement projects for a period of one
year.
(b) Any person who directly or indirectly aids, requests or
authorizes any other person to violate any of the provisions of
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than fifty dollars nor more than
two hundred fifty dollars.
§21-1D-9. Existing contracts.
This article applies only to contracts for construction on
public improvements awarded after the effective date of this
article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 657--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §21-1D-1, §21-1D-2, §21-1D-3, §21-1D-4, §21-1D-
5, §21-1D-6, §21-1D-7, §21-1D-7a, §21-1D-8 and §21-1D-9, all
relating to the West Virginia Alcohol and Drug-Free Workplace Act;
providing definitions; providing a statement of policy; requiring public improvement contractors to have and implement a drug-free
workplace program that requires drug and alcohol testing; provides
standards and protocols for testing; provides for assistance for
employees; requiring a drug-free workplace policy to be posted at
a public improvement construction site; requiring drug-free
workplace records and contents be open for inspection; providing
penalties; providing for confidentiality; and providing that this
article shall only apply to contracts awarded after this article
takes effect.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 657, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 657) passed with its House of Delegates amended 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 657) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 671, Increasing presiding Court of
Claims' judge compensation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section eight, lines one and two, by striking out
the words "one hundred sixty" and inserting in lieu thereof the
words "two hundred ten";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 671--A Bill to amend and reenact §14-2-8
of the Code of West Virginia, 1931, as amended, relating to
increasing the compensation of the judges of the Court of Claims.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 671, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S.
B. No. 671) passed with its House of Delegates amended 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 671) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 722, Granting regulatory power to certain
Board of Pharmacy facilities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section one-b, line thirteen, after the word
"patients." by striking out the remainder of the subdivision and
inserting in lieu thereof the following: The Board of Pharmacy
shall promulgate rules regarding the minimum standards for a
charitable clinic pharmacy and rules regarding the applicable
definition of a pharmacist-in-charge, who may be a volunteer, at
charitable clinic pharmacies: Provided, That, the charitable
clinic pharmacies shall be exempt from licensure by the board until
rules are in effect for a charitable clinic pharmacy. A charitable
clinic pharmacy may not be charged any applicable licensing fees
and such clinics may receive donated drugs.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 722, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White and Tomblin (Mr.
President)--31.
The nays were: Hunter and Yoder--2.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 722) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the passage by that body, without amendment, to take effect July 1,
2008, and requested the concurrence of the Senate in the changed
effective date, of
Eng. Com. Sub. for Senate Bill No. 751, Relating to Surface
Coal Mining and Reclamation Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in
the changed effective date of the bill, that being to take effect
July 1, 2008, instead of from passage.
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 S. B. No. 751) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 778, Relating to veterans'
benefits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3056, Authorizing
pharmacists to administer immunizations.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3065, Relating to making
false reports of child abuse, sexual abuse and domestic violence.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. House Bill No. 4019, Relating to civil actions filed in
the courts of the state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4072, Clarifying that the Board of
Registration for Professional Engineers is subject to a regulatory
board review.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 4073, Clarifying that the Board of
Examinations in Counseling is subject to a regulatory board review.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 4085, Relating to regulatory review of the
West Virginia Acupuncture Board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4144, Relating to physician
assistants and updating language to conform to national changes.
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. 4209, Authorizing the
Department of Administration to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments
to the bill.
Engrossed Committee Substitute for House Bill No. 4209, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4209) 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. 4209) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4244, Authorizing the
Department of Transportation to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4255, Authorizing the
Department of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4368, Reducing acts of
student violence and disruptive behavior and increasing penalties
for chronically disruptive students.
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. 4388, Authorizing the West Virginia
Supreme Court of Appeals to maintain a domestic violence database.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments
to the bill.
Engrossed House Bill No. 4388, as amended by deletion, was
then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4388) 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. 4388) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for House Bill No. 4421, Repealing the
corporate license tax, and creating corporate license tax
replacement fees.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4423, Ensuring that beer
kegs are not considered scrap metal unless received directly from
a beer manufacturer.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for House Bill No. 4570, Authorizing regional
jail employees to carry a firearm after receiving appropriate
certification.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for House Bill No. 4613, Increasing protection
to beneficiaries of structured settlements as they relate to
settlement transfers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2008, of
Eng. House Bill No. 4628, Providing a tax credit for new job
creation by certain taxpayers.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 56--Encouraging assistance
from private employers in an effort to increase poll workers
participants in West Virginia.
Whereas, West Virginia poll workers are an integral part of
the election process in state, county and municipal elections; and
Whereas, West Virginia has an aging population and the average
age of poll workers in this state is 72 years old; and
Whereas, It is becoming increasingly difficult for the
political parties to find a sufficient number of eligible poll
workers to work the polls on Election Day; and
Whereas, In order to accommodate the increasing demands of
technology and address the new and complicated federal laws that
mandate certain voting procedures in every polling place, it is
important to have an adequate number of qualified workers; and
Whereas, There are many citizens in the State who are willing
to work the polls during an election, but they are unable to do so
due to their employment obligations; and
Whereas, West Virginia businesses have a skilled workforce
which would be an invaluable asset to polling places across this
State; and
Whereas, West Virginia employers have an opportunity to
greatly support their communities by allowing their employees time
off with pay on Election Day to participate in civic duty as poll worker; therefore, be it
Resolved by the Legislature of West Virginia:
That West Virginia employers are encouraged to allow their
employees time off with pay on Election Day to be a poll worker in
West Virginia; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a copy of this resolution to the Chamber of Commerce.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 84--Requesting that the Joint
Committee on Government and Finance authorize the study to improve
the state's efforts to better promote the availability of safe
drinking water projects funding; expedite the time line between
inception of a project and its completion; establish clearer
communication regarding the application process and implementation
stages of such projects; and in general, more efficiently improve its efforts to ensure safe drinking water for all West Virginia
Citizens.
Whereas, The Legislature recognizes the importance of the
basic right of clean, suitable, drinking water by annually
providing the necessary funding for such projects; and
Whereas, That although funding is appropriated, it remains a
sad reality that many of West Virginia's families do not enjoy that
which so many other parts of the country take for granted, that
being safe, suitable, drinking water; and
Whereas, Safe drinking water is a fundamental necessity to
life itself; and
Whereas, Safe drinking water should be among one of the
primary goals of a government to insure to its people; and
Whereas, Communities that have safe drinking water for its
citizens and businesses have a better chance at improving its
business and development goals; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to authorize a study to improve the state's efforts to
better promote the availability of safe drinking water projects
funding; expedite the time line between inception of a project and
its completion; establish clearer communication regarding the
application process and implementation stages of such projects; and
in general, more efficiently improve its efforts to ensure safe drinking water for all West Virginia Citizens; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2009, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the Legislative expenses necessary to
conduct this study, to prepare a report and to draft necessary
legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
Referred to the Committee on Finance; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 99--Requesting the joint
committee on government and finance to make a study on a funding
mechanism to increase the salaries of teachers and school service
personnel.
Whereas, The Rankings & Estimates - Rankings of the States
2006 and Estimates of School Statistics 2007, National Education
Association, NEA Research, December 2007, shows that West Virginia
ranks 48th among the states in the average salaries of
instructional staff in public schools with an average salary of $39,856 in 2005-06; and
Whereas, The Rankings & Estimates show that the percentage
change in average instructional staff salaries in West Virginia in
constant dollars declined by 6.9% from 1995-06 to 2005-06, a larger
decline than in 46 other states; and
Whereas, The quality of a state's education system is directly
related to the quality of personnel it can attract and retain
through competitive salaries and benefits; and
Whereas, Quality teaching produces a more well educated
citizenry and results opportunities for economic prosperity;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to make a study on a funding mechanism to increase the
salaries of teachers and school service personnel; and, be it
Further Resolved, That the goal of the funding mechanism is to
provide salary increases sufficient to increase the ranking of West
Virginia's teacher salaries to 40th in the nation during 2009, 35th
in the nation during 2010, and 30th in the nation during 2011 and
increase the salaries of service personnel to similar levels of
market competitiveness based on the Rankings & Estimates of the
National Education Association, the Survey and Analysis of Teacher
Salary Trends of the American Federation of Teachers, The AFT PSRP
Compensation Survey, and any other established national comparative ranking of the salaries of school personnel; and, be it
Further Resolved, That the said Joint Committee on Government
and Finance is requested conduct the study and prepare a report of
its findings, conclusions and recommendations together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance is requested to report to the regular session of the
Legislature, 2009, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary
to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and draft necessary legislation are
requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
Referred to the Committee on Education; and then to the
Committee on Rules.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
submitting the annual probation and parole report, which was
received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 7, 2008
Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
As empowered by Section 11, Article VII of the Constitution of
West Virginia and section sixteen, article one, chapter five of the
Code of West Virginia, I extended clemency to the persons named on
the attached report. I submit this report in accordance with the
above-cited provisions for the period March 10, 2007, through March
7, 2008.
Very truly yours,
Joe Manchin III,
Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR JOE MANCHIN III
FOR THE PERIOD
MARCH 10, 2007, THROUGH MARCH 7, 2008
Bowers, Charles Roderick, Jr.
Decided November 15, 2007
In 1960, Mr. Bowers pleaded guilty to one count of Grand Larceny. On December 7, 1960, he was sentenced by the Circuit
Court of Kanawha County to a term of one-to-ten years of
imprisonment. In July of 1962, Mr. Bowers was granted parole and
successfully completed his term of parole in July of 1963. Since
that time, Mr. Bowers has maintained himself as a responsible, law-
abiding citizen and has led an exemplary and productive life. The
West Virginia Parole Board, having fully reviewed and considered
his history and record, unanimously recommended that Mr. Bowers be
granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Charles Roderick Bowers, Jr.,
for the offense of Grand Larceny.
Jarvis, Robert Mark
Decided November 15, 2007
In 1970, Mr. Jarvis pleaded guilty to one count of Possession
of Marijuana. On December 28, 1970, he was sentenced by the
Circuit Court of Fayette County to a term of two-to-five years of
imprisonment, which sentence was reduced on May 10, 1971, to a two-
year term of probation. Mr. Jarvis successfully completed his term
of probation on May 10, 1973. Since that time, Mr. Jarvis has
maintained himself as a responsible, law-abiding citizen and has
led an exemplary and productive life. The West Virginia Parole
Board, having fully reviewed and considered his history and record,
unanimously recommended that Mr. Jarvis be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Robert Mark Jarvis for the
offense of Possession of Marijuana.
Kallai, George Lucien III
Decided November 15, 2007
In 1991, Mr. Kallai pleaded guilty to one count of Petit
Larceny. On June 3, 1991, he was sentenced by the Magistrate Court
of Nicholas County to pay a fine. Mr. Kallai successfully
fulfilled all requirements placed upon him by the court. Since
that time, Mr. Kallai has maintained himself as a responsible, law-
abiding citizen and has led an exemplary and productive life. The
West Virginia Parole Board, having fully reviewed and considered
his history and record, unanimously recommended that Mr. Kallai be
granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to George Lucien Kallai III for
the offense of Possession of Marijuana.
Kyle, Roger Lee
Decided November 15, 2007
In 1968, Mr. Kyle pleaded guilty to one count of Grand
Larceny. On February 29, 1968, he was sentenced by the Circuit
Court of Monongalia County to a term of one-to-ten years of
imprisonment, which sentence was reduced to a term of three years of probation. Mr. Kyle was released from probation in February of
1970. Since that time, Mr. Kyle has maintained himself as a
responsible, law-abiding citizen and has led an exemplary and
productive life. The West Virginia Parole Board, having fully
reviewed and considered his record, unanimously recommended that
Mr. Kyle be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Roger Lee Kyle for the offense
of Grand Larceny.
Painter, Charles Franklin
Decided November 15, 2007
In 1966, Mr. Painter pleaded guilty to one count of Breaking
and Entering. On August 5, 1966, he was sentenced by the Circuit
Court of Brooke County to a term of one-to-ten years of
imprisonment. Mr. Painter was granted parole on September 3, 1968,
and successfully completed his term of parole on August 21, 1969.
Since that time, Mr. Painter has maintained himself as a
responsible, law-abiding citizen and has led an exemplary and
productive life. The West Virginia Parole Board, having fully
reviewed and considered his record, unanimously recommended that
Mr. Painter be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Charles Franklin Painter for
the offense of Breaking and Entering.
Rakes, Darrell Gene
Decided November 15, 2007
In 1980, Mr. Rakes pleaded guilty to one count of Possession
with Intent to Deliver a Controlled Substance (Marijuana). On
August 13, 1980, he was sentenced by the Circuit Court of Fayette
County to a term of one-to-five years of imprisonment, which
sentence was reduced to a term of three years of probation and
payment of court costs. Mr. Rakes successfully completed all
requirements of the court and was released from probation on August
10, 1983. Since that time, Mr. Rakes has maintained himself as a
responsible, law-abiding citizen and has led an exemplary and
productive life. The West Virginia Parole Board, having fully
reviewed and considered his record, unanimously recommended that
Mr. Rakes be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Darrell Eugene Rakes for the
offense of Possession with Intent to Deliver a Controlled Substance
(Marijuana).
Robertson, Glenn Douglas
Decided November 15, 2007
In 1968, Mr. Robertson pleaded guilty to one count of Petit
Larceny and one count of Deface and Destroy Property. On November
1, 1968, he was sentenced by a Mineral County Justice of the Peace
to pay restitution, fines and court costs on each charge. Mr. Robertson successfully fulfilled all requirements placed upon him
by the Mineral County Justice of the Peace. Since that time, Mr.
Robertson has maintained himself as a responsible and law-abiding
citizen and has led an exemplary and productive life. The West
Virginia Parole Board, having fully reviewed and considered his
record, unanimously recommended that Mr. Robertson be granted a
full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Glenn Douglas Robertson for
the offenses of Petit Larceny and Deface and Destroy Property.
Shackelford, William Forrest
Decided November 15, 2007
In 1958, Mr. Shackelford pleaded guilty to one count of Grand
Larceny. On May 16, 1958, he was sentenced by the Circuit Court of
Jefferson County to a term of one-to-ten years of imprisonment,
which sentence was reduced to a term of three years of probation.
Mr. Shackelford successfully completed his term of probation in
September of 1960. Since that time, he has maintained himself as
a responsible, law-abiding citizen and has led an exemplary and
productive life. The West Virginia Parole Board, having fully
reviewed and considered his record, recommended that Mr.
Shackelford be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to William Forrest Shackelford for the offense of Grand Larceny.
Vincent, Robert William
Decided November 15, 2007
In 1970, Mr. Vincent pleaded guilty to one count of Breaking
and Entering. On July 3, 1970, he was sentenced by the Circuit
Court of Brooke County to a term of one-to-ten years of
imprisonment, which sentence was reduced to a term of two years of
probation. Mr. Vincent successfully completed his term of
probation on July 3, 1972. Since that time, he has maintained
himself as a responsible, law-abiding citizen and has led an
exemplary and productive life. The West Virginia Parole Board,
having fully reviewed and considered his record, recommended that
Mr. Shackelford be granted a full, unconditional and complete
pardon.
For these reasons, Governor Manchin granted a full,
unconditional and complete pardon to Robert William Vincent for the
offense of Breaking and Entering.
NO MEDICAL RESPITES WERE GRANTED
DURING THIS PERIOD
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. 4402, Relating to compulsive gambling.
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 Kessler, Oliverio and McKenzie.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68
Authority territory.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Martin, Hutchins and Sobonya.
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, Plymale and Yoder.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Love, and by unanimous consent, the
Senate returned to the second order of business and the
introduction of guests.
On motion of Senator Chafin, the recessed until 5:30 p.m.
today.
Upon expiration of the recess, the Senate reconvened and again
proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 398, Authorizing Department
of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 536, Exempting Supreme
Court probation officers' vehicles from certain registration
requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report,
with its conference amended title, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendments to, and the passage
as amended by deletion, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573,
Increasing public school teachers' and service personnel annual
salaries.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 645, Exempting city and
county hospitals from certain audit requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2008, of
Eng. Senate Bill No. 659, Increasing certain crime victims'
benefits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 673, Making supplementary appropriation
to Department of Health and Human Resources.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 674, Making supplementary appropriation
to Department of Administration and Department of Military Affairs
and Public Safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 18, Requesting Division of
Highways name bridge in Martinsburg, Berkeley County, "Dr. C.
Vincent Townsend, Sr., Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 30, Requesting Division of
Highways name section of Interstate 70 in Wheeling, Ohio County,
"Doc and Chickie Williams Country Music Royal Couple Highway".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 37, Requesting Division of
Highways name bridge in Diana, Webster County, "David Daniel
Hamrick Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 38, Requesting Division of
Highways name bridge in Trace Fork, Kanawha County, "Private
Clinton Griffith and Staff Sergeant Jack Griffith Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 39, Requesting Division of
Highways name bridge in Hemphill, McDowell County, "Charles Spencer
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 47, Requesting Division of
Natural Resources rename Wallback Lake in Clay County "Sampson
Lake".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 49, Requesting Division of
Highways name bridge in Mingo County "Private Lawrence Ooten
Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 52, Requesting Division of
Highways name bridge in Marion County "Seaman 1st Class Clyde
Richard Wilson Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 53, Requesting Joint
Committee on Government and Finance study convention and visitors
bureaus.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 63, Requesting Division of
Highways name bridge near Belo, Mingo County, "R3C Fred Mahon
Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 64, Commending Consortium for
Internationalizing Higher Education in West Virginia.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 76, Requesting Division of
Highways place sign at Fayetteville, Fayette County, "Coolest Small
Town".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 4078, Relating to the termination of the
Blennerhassett Island Historical State Park Commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4139, Relating to licensing
persons using bioptic telescopic devices to operate a motor vehicle.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 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.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4157, Allowing insurers who
have been suspended from writing new policies to continue to
service existing policies.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for House Bill No. 4381, Relating to an
assigned risk plan and guaranty association account for workers'
compensation insurance.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4383, Awarding service
revolver upon retirement to state fire marshal.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4386, Authorizing
municipalities to create an annual vacant property registration.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. House Bill No. 4394, Restoring the licensure exemption
for certain contractors of manufactured housing installation.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive
gambling.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Palumbo, Miley and Hamilton.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect January 1, 2009, of
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.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4494, Relating to the
regulation of the practice of accountancy.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4511, Relating to zoning
ordinance adoption by election or otherwise.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4607, Relating to special
district excise tax authorization.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4624, Providing per diem pay
for volunteers who drive veterans to hospitals.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take effect from passage, of
Eng. House Bill No. 4644, Relating to the forfeiture of bail.
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 6:03 p.m. today:
Eng. Com. Sub. for House Bill No. 4471, Making certain changes
to the West Virginia State Police Retirement System.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 91, Urging West Virginia
National Guard return from Iraq.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Military.
Senate Resolution No. 35, Designating March 9-16, 2008,
"National Problem Gambling Awareness Week".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary.
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 third reading calendar, Eng. Com. Sub. for House Bill No.
4333.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2967, Creating the "West
Virginia Remembers Program".
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2967) passed with its title.
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 Thursday, March 6, 2008, for amendments to
be received on third reading, was reported by the Clerk.
On motion of Senator Helmick, the following amendments to the bill were reported by the Clerk, considered simultaneously, and
adopted:
O
n page two, section nine, line sixteen, by striking out the
words "first day of January" and inserting in lieu thereof the
words "fourteenth day of February";
And,
On page four, section nine, lines thirty-seven and thirty-
eight, by striking out the words "first day of January" and
inserting in lieu thereof the words "fourteenth day of February".
Having been engrossed, the bill (Eng. H. B. No. 4016) 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. 4016) 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. 4016) 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. 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 Thursday, March 6, 2008, for amendments to
be received on third reading, was reported by the Clerk.
On motion of Senator Helmick, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
O
n page two, section three, line seventeen, by striking out
the words "first day of January" and inserting in lieu thereof the
words "fourteenth day of February";
And,
On page three, section three, lines thirty-six and thirty-
seven, by striking out the words "first day of January" and
inserting in lieu thereof the words "fourteenth day of February".
Having been engrossed, the bill (Eng. H. B. No. 4017) 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. 4017) 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. 4017) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 75, Requesting Division of
Highways name bridge in Summers County "Vaughn Ray York Memorial
Bridge".
And has amended same.
And,
House Concurrent Resolution No. 55, The "Brian Keith Paul
Cable Barriers".
And has amended same.
And reports the same back with the recommendation that they
each be adopted, as amended.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 75 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The following amendments to the resolution, from the Committee
on Transportation and Infrastructure, were reported by the Clerk,
considered simultaneously, and adopted:
B
y striking out everything after the title and inserting in
lieu thereof the following:
Whereas, Vaughn Ray York, Jr. was an avid photographer using
his talents to capture wonderful pictures of the West Virginia
wildlife, environment and mountains as well as having those
photographs of his home state published in the book Shades of
Tomorrow; and
Whereas, An exhibit of Vaughn York, Jr.'s photography is
scheduled to be displayed at Tamarack this spring; and
Whereas, Vaughn York, Jr. worked as a heavy equipment operator
for Magnum Coal Company; and
Whereas,Vaughn York, Jr. was an avid outdoorsman, enjoying
hunting, fishing and photographing game; and
Whereas,Vaughn York, Jr. was a kind person, selfless in his
desire to help those less fortunate than he, often giving most of his own salary to help those who were in need; and
Whereas, On September 23, 2006, after listening to his beloved
West Virginia University Mountaineer football team and taking
photographs of an intense storm, Vaughn York, Jr. was returning
home when he was tragically killed at the age of thirty-five; and
Whereas, Vaughn York, Jr. is dearly missed by his family,
friends, and those in the community and the breadth of his
graciousness was not discovered until his funeral; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name
bridge number 45-64-143.17 (2790) at the Green Sulphur Springs
Interchange on Interstate 64 in Summers County near exit 143 the
"Vaughn Ray York, Jr. Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and
be placed signs identifying the bridge as the "Vaughn Ray York, Jr.
Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
Transportation and the family of Vaughn Ray York, Jr.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 75--Requesting the Division
of Highways name bridge number 45-64-143.17 (2790) located at the Green Sulphur Springs Interchange on Interstate 64 in Summers
County near exit 143 the "Vaughn Ray York, Jr. Memorial Bridge".
The question being on the adoption of the resolution (S. C. R.
No. 75), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 55 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The following amendments to the resolution, from the Committee
on Transportation and Infrastructure, were reported by the Clerk,
considered simultaneously, and adopted:
B
y striking out everything after the title and inserting in
lieu thereof the following:
Whereas, Brian Keith Paul, born May 18, 1963 to Homer and Ina
Paul of Barboursville, West Virginia, brother to Theresa Paul
Vithalani, father to Megan, Lenza and Bryce Paul, and husband to
Cathy Paul, passed away November 25, 2006, after a courageous
battle with colon cancer; and
Whereas, Brian Keith Paul was a model citizen and a good
father, active in the lives of his children, often volunteering to
coach their various sports teams and determined to teach young
people the value of dedication on and off the field. Indeed, Brian's motto was "Never Say Can't"; a motto, by which he lived,
and a virtue that guided him in his pursuit to make I-64 safer for
all travelers; and
Whereas, Brian Keith Paul was a third generation mechanic and
vice president of Paul's Garage. As part of his occupation, he
remediated often fatal car wrecks and, when necessary, preserved
persons' belongings for collection by loved ones. His experience
cleaning up car accident sites allowed him to witness the
devastating effects car crashes have on people in our community;
and
Whereas, Brian, in light of his unique perspective regarding
vehicular accidents, formed the opinion that too many serious
crossover collisions were occurring on I-64, particularly for lack
of a median barrier; and
Whereas, Brian, in his efforts to better his community,
doggedly pursued the Division of Highways, lobbying them to
construct a barrier in the median between the eastbound and
westbound lanes of a portion of I-64; and
Whereas, His pursuit took hours of research and countless
phone calls, often resulting in dead ends; and
Whereas, Brian persevered through this difficulty by staying
true to his motto "Never Say Can't" and was successful in
convincing local and state government officials to construct a
median barrier which now spans from mile marker six to mile marker twenty-seven on I-64 and where this barrier has saved many lives;
and
Whereas, The Legislature hereby acknowledges that Brian Keith
Paul was instrumental in initiating the construction of said cable
barrier project and finds that it is right and just to perpetuate
and honor his memory by formally naming a bridge on I-64 the "Brian
Keith Paul Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the
bridge located on I-64 at mile marker 19.25, number (2104) in
Cabell County the "Brian Keith Paul Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested
to have made and be placed signs identifying the bridge as follows:
"BRIAN KEITH PAUL MEMORIAL BRIDGE
SAFETY ADVOCATE FOR
LIFE-SAVING HIGHWAY CABLE BARRIERS"; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward certified copies of this resolution to the Commissioner of
the Division of Highways and to the family members of the late
Brian Keith Paul.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
House Concurrent Resolution No. 55--Requesting the Division of Highways to name the bridge located on I-64 at mile marker 19.25,
number (2104) in Cabell County, the "Brian Keith Paul Memorial
Bridge".
The question being on the adoption of the resolution (H. C. R.
No. 55), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 83, Requesting Division of
Highways name bridge in Kanawha County "Captain Benjamin D. Tiffner
Memorial Bridge".
Senate Concurrent Resolution No. 84, Requesting Division of
Highways name bridge in Kanawha County "Master Sergeant William L.
'Buster' Hackney Memorial Bridge".
And,
Senate Concurrent Resolution No. 88, Requesting Division of
Highways name bridge in Delbarton, Mingo County, "Thomas Elbert
Muncy, Jr., Memorial Bridge".
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 83 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 84 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 88 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 5, The "Oscar Robert England
Bridge".
House Concurrent Resolution No. 10, The "Captain Larry F.
Lucas Memorial Bridge".
House Concurrent Resolution No. 19, Requesting the Division of
Highways to rename Heritage Road, specifically Lincoln County Route
13/7, to "Guy Gillenwater Hollow".
House Concurrent Resolution No. 23, Requesting the Division of
Highways to name the Yates Avenue bridge, spanning Berkeley Run in
Grafton, West Virginia, the "Bearcat Bridge".
House Concurrent Resolution No. 25, Requesting that bridge
number 46-119-7.93 located in the City of Grafton be named the
"Memorial City Bridge".
House Concurrent Resolution No. 26, Requesting the Division of
Highways to name a portion of U. S. Route 52 the "Vietnam Veterans
Highway".
House Concurrent Resolution No. 42, Providing for the renaming
of Fairgrounds Road located in Cabell County "Bill Blenko Drive".
House Concurrent Resolution No. 54, The "PFC Michael J. Slater
Memorial Bridge".
House Concurrent Resolution No. 57, The "Denver Ray Gandee Sr.
Bridge".
House Concurrent Resolution No. 62, The "Lt. Charles O.
Hardman and Sgt. Gale Franklin Keen Bridge".
And,
House Concurrent Resolution No. 68, The "Bill Queen, Jr.
Memorial Bridge".
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 5 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 10 contained in the preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 19 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 23 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 25 contained in the preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 26 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 42 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 54 contained in the preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 57 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 62 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 68 contained in the preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 4018, Renewing the West
Virginia Small Business Linked Deposit Program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4018) 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. 4018) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4038, Allowing the Division of Labor to
promulgate Rules to license elevator workers.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
Senator Caruth requested unanimous consent that further
consideration of the bill be deferred until the conclusion of bills
on today's third reading calendar.
Which consent was not granted, Senator Bowman objecting.
Senator Caruth then moved that further consideration of the
bill be deferred until the conclusion of bills on today's third
reading calendar.
The question being on the adoption of Senator Caruth's
aforestated motion, the same was put and did not prevail.
The question now being "Shall Engrossed House Bill No. 4038
pass?"
On the passage of the bill, the yeas were: Bailey, Bowman,
Chafin, Edgell, Facemyer, Fanning, Foster, Green, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr.
President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall,
Sprouse, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4038) 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. 4041, Relating to the
regulation and treatment of the production of natural gas and
coalbed methane.
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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Deem--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4041) 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. 4088, Allowing farm
equipment dealers to calculate their inventory based on an average
of their yearly sales.
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. 4088) 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. 4117, Expanding eligibility
for state minimum salary supplements for classroom teachers
achieving certain national certification.
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. 4117) 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4117) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4290, Relating to electronic
commerce.
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. 4290) 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. 4307, Relating to bona fide
residents wholly or solely owning greyhounds.
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, Facemyer, Fanning, Foster,
Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Sharpe--1.
Excused from voting: Green--1.
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. 4307) 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. 4307--A Bill
to amend and
reenact §19-23-10 of the Code of West Virginia, 1931, as amended,
relating to greyhound racing generally; Greyhound breeding development fund limited to greyhounds wholly or solely owned by
bona fide residents of state track facilities; increasing the
amount from the Breeder Development Fund that can be used for
construction of two training track facilities; increasing the
number of possible greyhound training tracks to two; authorizing
maintenance costs for training tracks to be paid as fund
distributions; not requiring anyone to be a member of an
association in order to participate in the Breeder Development
Fund; providing for
distribution of one half points to West
Virginia whelped greyhounds finishing in places fifth through
eighth; providing for distribution of one half points to kennels
required to race West Virginia whelped greyhounds on their active
lists when the dogs finish in fifth, sixth, seventh or eighth
place; requiring up to three races featuring West Virginia bred
dogs per race card; and codifying the requirement that the
Greyhound Owners and Breeders Association shall submit an updated
registry each month.
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.
Having been removed from the Senate
third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4357, Extending the
Neighborhood Investment Program Act and eligibility for tax credits
under the act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4357) 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. 4407, Requiring automatic
tire chains as standard equipment on all new school buses.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4407) 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. 4433, Increasing the maximum
amount of a medical student loan that may be cancelled.
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. 4433) 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. 4434, Establishing a higher
education energy and water savings revolving loan fund.
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. 4434) 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4434) 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. 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 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. 4449) 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. 4472, Requiring a board of
education to wait ten days before posting a new job opening
following the death of an employee.
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. 4472) 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. 4474, Relating to registered
nurses required in operating rooms.
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. 4474) 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. 4476, Public-Private
Transportation Facilities Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
At the request of Senator Helmick, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's third reading calendar.
Thereafter, at the request of Senator Caruth, and by unanimous
consent, the remarks by Senator Yoder regarding the passage of Engrossed Committee Substitute for House Bill No. 4476 were ordered
printed in the Appendix to the Journal.
Eng. House Bill No. 4477, Relating to payment of GED exam
fees.
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. 4477) 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4477) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
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 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. 4495) 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. 4524, Relating generally to
the ethical standards of public officers, employees and lobbyists.
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. 4524) 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. 4524) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence in the changed
effective date.
Eng. Com. Sub. for House Bill No. 4554, Testing school bus
operators every other 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,
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. 4554) 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. 4554) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4623, Relating to establishing minimum
deductions.
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. 4623) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. House Bill No. 4623--A Bill to amend and reenact §18-23-
4a of the Code of West Virginia, 1931, as amended, relating to the
Higher Education Policy Commission; the Council for Community and
Technical College Education; governing boards of state institutions
of higher education; establishing minimum employer contributions;
and allowing contributions to employee retirement plans by certain
higher education employers to exceed the percentage contributions
of employees.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4670, Authorizing the Public Employees
Insurance Agency to charge interest to employers on amounts not
paid on time.
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, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Guills and Sypolt--2.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4670) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4684, Amending the West Virginia Film
Industry Investment Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4684) 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. 4684) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Sypolt, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed until 8 p.m.
tonight.
Night Session
Upon expiration of the recess, the Senate reconvened and again
proceeded to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted
the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated February 7, 2008,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1.For Member, Property Valuation and Training Procedures
Commission, Dana Lynch, Webster Springs, Webster County, for the
term ending June 30, 2010.
2.For Member, Mine Safety Technology Task Force, Menis
Ketchum, Huntington, Cabell County, to serve at the will and
pleasure of the Governor.
3.For Member, West Liberty State College Board of
Governors, John Larch, Weirton, Hancock County, for the term ending
June 30, 2010.
4.For Member, West Liberty State College Board of
Governors, Brian Joseph, Wheeling, Ohio County, for the term ending
June 30, 2010.
5.For Member, West Liberty State College Board of
Governors, Michael Stolarczyk, Columbus, Ohio, for the term ending
June 30, 2009.
6.For Member, Real Estate Appraiser Licensing and
Certification Board, Glenn Summers, Clendenin, Kanawha County, for the term ending June 30, 2010.
7.For Member, Southern West Virginia Community and
Technical College, Wilma J. Zigmond, Logan, Logan County, for the
term ending June 30, 2010.
8.For Member, Southern West Virginia Community and
Technical College, Glenn Yost, Chapmanville, Logan County, for the
term ending June 30, 2008.
9.For Member, Southern West Virginia Community and
Technical College, Terry Sammons, Gilbert, Mingo County, for the
term ending June 30, 2011.
10.For Member, Board of Respiratory Care, Carol Colasessano,
Fairmont, Marion County, for the term ending June 30, 2009.
11.For Member, Board of Respiratory Care, Jack Wilson,
Beckley, Raleigh County, for the term ending June 30, 2010.
12.For Member, Board of Respiratory Care, Dr. John Parker,
Morgantown, Monongalia County, for the term ending June 30, 2009.
13.For Member, Board of Respiratory Care, William Boring,
Wheeling, Ohio County, for the term ending June 30, 2010.
14.For Member, Council on Aging, Kathy Pauley, Pinch,
Kanawha County, for the term ending June 30, 2011.
15.For Member, Real Estate Commission, John Reed, Hurricane,
Putnam County, for the term ending June 30, 2011.
16.For Member, West Virginia School of Osteopathic Medicine
Board of Governors, C. Sue Holvey, Flatwoods, Braxton County, for the term ending June 30, 2011.
17.For Member, West Virginia School of Osteopathic Medicine
Board of Governors, Judith Seifer, Lewisburg, Greenbrier County,
for the term ending June 30, 2011.
18.For Member, Capitol Building Commission, Gregory R.
Barton, Ellenboro, Ritchie County, for the term ending June 30,
2010.
19.For Member, Public Employees Grievance Board, David
Roberts, Fairmont, Marion County, for the term ending June 30,
2008.
20.For Member, Archives and History Commission, Bill
Richardson, Delbarton, Mingo County, for the term ending June 30,
2008.
21.For Member, Archives and History Commission, Victor
Greco, Wheeling, Ohio County, for the term ending June 30, 2009.
22.For Member, Archives and History Commission, Dr. Helene
Jacobs, Huntington, Cabell County, for the term ending June 30,
2009.
23.For Member, Archives and History Commission, Becky Frye,
Martinsburg, Berkeley County, for the term ending June 30, 2008.
24.For Member, Archives and History Commission, Dr. Charles
Ledbetter, Nitro, Kanawha County, for the term ending June 30,
2009.
25.For Member, Archives and History Commission, Robert S. Conte, Union, Monroe County, for the term ending June 30, 2008.
26.For Member, Archives and History Commission, Dr. Joan
Walker, Hedgesville, Berkeley County, for the term ending June 30,
2008.
27.For Member, Archives and History Commission, Harold M.
Forbes, Morgantown, Monongalia County, for the term ending June 30,
2010.
28.For Member, Archives and History Commission, Noel Tenney,
Buckhannon, Upshur County, for the term ending June 30, 2010.
29.For Member, Council for Community and Technical College
Education, James J. Cava, Jr., Ridgeley, Mineral County, for the
term ending June 30, 2011.
30.For Member, Women's Commission, Shida Jamie, Charleston,
Kanawha County, for the term ending June 30, 2010.
31.For Member, Women's Commission, Kathie Williams,
Huntington, Cabell County, for the term ending June 30, 2008.
32.For Member, Women's Commission, April Pennell-Hendershot,
Cross Lanes, Kanawha County, for the term ending June 30, 2010.
33.For Member, Women's Commission, Gina Martino Dahlia,
Fairmont, Marion County, for the term ending June 30, 2010.
34.For Member, Women's Commission, Heather Johnson, Beaver,
Raleigh County, for the term ending June 30, 2010.
35.For Member, Board of Barbers and Cosmetologists, Kenneth
A. Coston, Charleston, Kanawha County, for the term ending June 30, 2011.
36.For Member, Board of Miner Training, Education and
Certification, Carl Egnor, Yawkey, Lincoln County, for the term
ending June 30, 2010.
37.For Member, Statewide Independent Living Council, Donald
Carson, Beckley, Raleigh County, for the term ending June 30, 2010.
38.For Member, Statewide Independent Living Council, Cindy
Spinks, Summersville, Nicholas County, for the term ending June 30,
2010.
39.For Member, Statewide Independent Living Council, Brenda
Lamkin, Buckhannon, Upshur County, for the term ending June 30,
2008.
40.For Member, Statewide Independent Living Council, LuAnn
Decker, New Cumberland, Hancock County, for the term ending June
30, 2010.
41.For Member, Statewide Independent Living Council, Vanessa
VanGilder, Charleston, Kanawha County, for the term ending June 30,
2010.
42.For Member, Statewide Independent Living Council, Mark
Derry, Morgantown, Monongalia County, for the term ending June 30,
2010.
43.For Member, Statewide Independent Living Council, Karen
Davis, Charleston, Kanawha County, for the term ending June 30,
2010.
44.For Member, Athletic Commission, Douglas E. Pauley,
Charleston, Kanawha County, for the term ending June 30, 2011.
45.For Commissioner, Tax Division, Christopher G. Morris,
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
46.For Secretary, Department of Revenue, Virgil T. Helton,
St. Albans, Kanawha County, to serve at the will and pleasure of
the Governor.
47.For Member, Natural Resources Commission, David F.
Truban, Morgantown, Monongalia County, for the term ending June 30,
2014.
48.For Member, Women's Commission, Sherry Breeden,
Charleston, Kanawha County, for the term ending June 30, 2008.
49.For Member, Board of Medicine, Dr. Carlos C. Jimenez,
Glen Dale, Marshall County, for the term ending September 30, 2011.
50.For Member, Board of Medicine, Dr. R. Curtis Arnold,
Hamlin, Lincoln County, for the term ending September 30, 2011.
51.For Member, Board of Medicine, Joseph E. Miller,
Hurricane, Putnam County, for the term ending September 30, 2012.
52.For Member, Board of Chiropractic Examiners, Dr. Scott
Romesburg, Bridgeport, Harrison County, for the term ending June
30, 2010.
53.For Member, Shepherd University Board of Governors, Mary
Clare Eros, Shepherdstown, Jefferson County, for the term ending June 30, 2011.
54.For Member, Shepherd University Board of Governors, W.
Mark Rudolph, Winchester, Virginia, for the term ending June 30,
2011.
55.For Member, West Virginia Northern Community and
Technical College Board of Governors, John Clarke, Wheeling, Ohio
County, for the term ending June 30, 2011.
56.For Member, West Virginia Northern Community and
Technical College Board of Governors, Mary K. Hervey Degarmo,
Wellsburg, Brooke County, for the term ending June 30, 2008.
57.For Member, West Virginia Northern Community and
Technical College Board of Governors, Anne Dieckmann-Harman,
Wheeling, Ohio County, for the term ending June 30, 2011.
58.For Member, West Virginia Northern Community and
Technical College Board of Governors, Conner Boyd, Wheeling, Ohio
County, for the term ending June 30, 2010.
59.For Member, Board of Dental Examiners, Dr. Diane Paletta,
Charleston, Kanawha County, for the term ending June 30, 2012.
60.For Member, Board of Dental Examiners, Michelle Klenk,
Fayetteville, Fayette County, for the term ending June 30, 2012.
61.For Member, Board of Education, Jenny N. Phillips,
Elkins, Randolph County, for the term ending November 4, 2016.
62.For Member, Eastern West Virginia Community and Technical
College, Robert Q. Hott, Augusta, Hampshire County, for the term ending June 30, 2008.
63.For Member, Eastern West Virginia Community and Technical
College, Dixie Bean, Moorefield, Hardy County, for the term ending
June 30, 2011.
64.For Member, Council on Aging, Earl F. Jarvis, Logan,
Logan County, for the term ending June 30, 2011.
65.For Member, Bluefield State College Board of Governors,
Sylvester Myers, Bramwell, Mercer County, for the term ending June
30, 2010.
67.For Member, Housing Development Fund, The Honorable Gino
Colombo, Clarksburg, Harrison County, for the term ending October
30, 2011.
68.For Member, Center for Professional Development, Reverend
D. D. Meighen, Fairmont, Marion County, for the term ending June
30, 2009.
69.For Member, Center for Professional Development, B. Keith
Fulton, Hurricane, Putnam County, for the term ending June 30,
2009.
70.For Member, Property Valuation and Training Procedures
Commission, Mickey Brown, Madison, Boone County, for the term
ending June 30, 2010.
71.For Member, Regional Jail and Correctional Facility
Authority, Tony Veltri, Grafton, Taylor County, for the term ending
June 30, 2011.
72.For Member, Catastrophic Illness Board, Dr. Victoria
Shuman, Burton, Wetzel County, for the term ending August 31, 2012.
73.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Nancy Godby, Chapmanville, Logan
County, for the term ending June 30, 2009.
74.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Dr. I. Elaine Moore, St. Albans,
Kanawha County, for the term ending June 30, 2009.
75.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, James Wilson, Charleston, Kanawha
County, for the term ending June 30, 2010.
76.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Nancy Oughton, Morgantown,
Monongalia County, for the term ending June 30, 2010.
77.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Jamie Browning, Logan, Logan County,
for the term ending June 30, 2010.
78.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Melissa Haye, Princeton, Mercer
County, for the term ending June 30, 2010.
79.For Member, Medical Imaging and Radiation Therapy
Technology Board of Examiners, Dr. Robert Smith, Charleston,
Kanawha County, for the term ending June 30, 2010.
80.For Executive Director, Water Development Authority, Christopher E. Jarrett, Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
81.For Member, Medical Imaging and Radiation Technology
Therapy Board of Examiners, Dr. John Leon, Fairmont, Marion County,
for the term ending June 30, 2008.
82.For Member, Board of Registration for Sanitarians, Steven
R. Bayer, Washington, Wood County, for the term ending June 30,
2012.
83.For Member, Marshall University Board of Governors,
Michael G. Sellards, Huntington, Cabell County, for the term ending
June 30, 2010.
84.For Member, West Virginia Northern Community and
Technical College Board of Governors, William C. Haught, Wheeling,
Ohio County, for the term ending June 30, 2011.
85.For Member, Oil and Gas Inspectors Examining Board,
Robert L. Radabaugh, Sand Fork, Gilmer County, for the term ending
June 30, 2012.
86.For Member, Aeronautics Commission, Richard S. Wachtel,
Martinsburg, Berkeley County, for the term ending June 30, 2011.
87.For Member, Board of Registration for Sanitarians,
William C. Harvey, Madison, Boone County, for the term ending June
30, 2009.
88.For Member, Lottery Commission, Don Lucci, Charleston,
Kanawha County, for the term ending June 30, 2009.
89.For Member, Concord University Board of Governors, Wilma
Anderson, Hinton, Summers County, for the term ending June 30,
2011.
90.For Member, Concord University Board of Governors, Frank
L. Blackwell, Mullens, Wyoming County, for the term ending June 30,
2008.
91.For Member, Concord University Board of Governors, John
Mendez, Princeton, Mercer County, for the term ending June 30,
2010.
92.For Member, Board of Examiners of Psychologists, Robert
G. Martin, Hamlin, Lincoln County, for the term ending June 30,
2010.
93.For Member, Fairmont State University Board of Governors,
Rocco Muriale, Fairmont, Marion County, for the term ending June
30, 2011.
94.For Member, Board of Registration for Professional
Engineers, Richard E. Plymale, Charleston, Kanawha County, for the
term ending June 30, 2012.
Senate Executive Message No. 4, dated February 14, 2008,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 4
is submitted:
1.For Director, Division of Personnel, Otis Cox, Webster
Springs, Webster County, to serve at the will and pleasure of the Governor.
2.For Member, Board of Pharmacy, Rebekah Cookman, Romney,
Hampshire County, for the term ending June 30, 2012.
And,
A letter from the Regional Jail and Correctional Facility
Authority, dated February 12, 2008, requesting confirmation by the
Senate of the nomination mentioned therein. The following name is
submitted:
1. For Executive Director, Regional Jail and Correctional
Facility Authority, Terry Miller, Charleston, Kanawha County, for
the term ending December 10, 2012.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Shirley Love,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, and a nomination submitted by the
Regional Jail and Correctional Facility Authority, the special
order thereon was called by the President.
Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive messages and a letter from the
Regional Jail and Correctional Facility Authority:
Senate Executive Message No. 2, dated February 7, 2008 (shown
in the Senate Journal of February 11, 2008, pages 17 through 26,
inclusive).
Senate Executive Message No. 4, dated February 14, 2008 (shown
in the Senate Journal of February 18, 2008, pages 2 and 3).
And,
A letter from the Regional Jail and Correctional Facility
Authority, dated February 12, 2008 (shown in the Senate Journal of
February 13, 2008, page 2).
Senator Love then moved that the Senate advise and consent to
all of the executive nominations referred to in the foregoing
report from the Committee on Confirmations and that the nomination
of Terry Miller, as Executive Director, Regional Jail and
Correctional Facility Authority, be confirmed.
The question being on the adoption of Senator Love's
aforestated motion,
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Sharpe and Sprouse--2.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion had prevailed.
__________
Consideration of the special order of business having been
concluded,
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. 4406, Relating to state board standards
for the recommended duration of school bus transportation times for
students to and from school.
And has 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 amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4406) contained in the preceding report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page five, section two, lines eight and nine, by striking
out the words "five hundred thousand" and inserting in lieu thereof
the words "one million";
On page nine, section two, line seventy-eight, by striking out
the word "and";
On page nine, section two, line eighty, after the word
"article" by inserting the following: "and
(G) Deposited in the Excess Lottery School Building Debt
Services Fund pursuant to section eighteen-a, article twenty-two,
chapter twenty-nine of this code.";
And,
On page ten, section two, line one hundred four, by striking
out the words "five hundred thousand" and inserting in lieu thereof
the words "one million".
The bill (Eng. H. B. No. 4406), 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,
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.
Having been engrossed, the bill (Eng. H. B. No. 4406) was then
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, Sprouse, Stollings,
Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Barnes and Prezioso--2.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4406) 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. 4406--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section, designated section §18-2E-5d; and to amend and reenact §18-9D-2 and
§18-9D-16 of said code, all relating generally to the School
Building Authority and to state board standards for the recommended
duration of school bus transportation times for students to and
from school; modifying definitions and qualifications for
construction projects and major improvement projects; limiting
county board authority to establish new routes for certain students
to certain schools unless certain requirements met; providing for
state board to permit new routes in excess of limit up to certain
limit; requiring state board to provide certain technical
assistance; requiring countywide comprehensive facilities plans
required by School Building Authority to address providing facility
infrastructure that avoids excessive transportation times;
requiring guidelines for update of transportation times in approved
facilities plans; prohibiting project approval by authority when
transportation route times for certain students exceed limits
unless state board permission is granted.
Senator Chafin moved that the bill take effect July 1, 2008.
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, Sprouse, Stollings, Sypolt,
Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Barnes and Prezioso--2.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4406) 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 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. 4715, Making a supplementary appropriation
to the Department of Transportation.
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. H. B. No. 4715) 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. H. B. No. 4715) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4715) 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. 4715) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports
had been filed at 8:34 p.m. tonight:
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68
Authority territory.
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain
firefighters' workers' compensation benefits.
And,
Eng. Com. Sub. for House Bill No. 3215, Removing the
administrative link between Shepherd University and Blue Ridge
Community and Technical College.
At the request of Senator Minard, unanimous consent being granted, Senator Minard addressed the Senate regarding the
legislative service of the Honorable William R. Sharpe, Jr., a
senator from the twelfth district.
Thereafter, at the request of Senator Chafin, and by unanimous
consent, the remarks by Senator Minard were ordered extended in the
Journal as follows:
SENATOR MINARD: With the close of the Seventy-Eighth
Legislature at hand, I am compelled to salute one of my dearest and
oldest friends and a close business associate.
When I was 19 years old, my father came home one evening and
asked me if I knew a young man named Billy Sharpe. It appeared
that a young, 150-pound man had challenged a disorderly and
aggressive 250-pound patron of a local establishment who was
causing a disturbance. My father said he couldn't believe that
with the disadvantages of size and weight that this little kid,
"Billy Sharpe", did not back down.
Well, that was 58 years ago. And throughout the years, the
Senator from Lewis has never backed down. He never backed down
from any man or any challenge. As I look around this body, I can
see a lot of those traits in this chamber right now.
I stand here today to recognize the friendship, support,
strength of character and humor offered to us through the years by
our colleague from the twelfth senatorial district. He has served
his friends and neighbors in his district, covering the counties of Harrison, Lewis, Gilmer and Braxton for 44 years--nearly half a
century. I am amazed at the number of people this one individual
has affected throughout the course of his Legislative service.
Since his election to the Senate in 1960, he has worked with
nine governors: Cecil H. Underwood in 1961, William "Wally"
Barron, Hulett Smith, Arch Moore--both terms, John D. Rockefeller
IV, Gaston Caperton, Cecil H. Underwood in his second term in 1997,
Bob Wise and today's Chief Executive, Governor Joe Manchin III.
Within this chamber, he has served nine Senate Presidents:
Howard W. Carson, Lloyd G. Jackson, E. Hans McCourt, William T.
Brotherton, Jr., Warren McGraw, Dan R. Tonkovich, Larry A. Tucker,
Keith Burdette and the Honorable Senator from the seventh
senatorial district, who has held that position longer than any of
his predecessors.
I actually hoped for an "easy button" which would allow me to
calculate how many times the Senator from Lewis County has voted
"yea" or "nay" in the last 44 years. The only answer I could
retrieve was thousands. So, I estimated it to be approximately
96,000 "yea" or "nay" votes in this chamber, not counting committee
votes. And those thousands of votes cast by the twelfth senatorial
district Senator have defined the history and growth of our great
state.
Throughout the last 44 years, laws have changed our court
systems, protected our environment, enhanced our business climate, managed our natural resources, created retirement and health care
programs, upgraded our public schools and supported our higher
education institutions. He built highways, created and preserved
our state parks, provided our citizens with police protection, put
away dangerous criminals and protected families and children with
the passage of thousands of bills.
While taking on statewide problems, the Senator from Lewis did
not neglect his district. Travel up I-79 and check out Stonewall
Dam and Stonewall Lake. Right smack dab in the middle of the state
is a tourism destination. The jobs in construction, and now
maintenance, keep many people employed in his community.
In addition, he was one of the best backroom politicians I
have ever known. He knew how to get things done. In 1994, my good
friend was honored by his colleagues with the passage of Enrolled
Senate Bill No. 111. Unanimously approved, the bill created the
William R. Sharpe, Jr. Hospital at Weston. This state-of-the-art
facility serves to protect those individuals least likely to care
for themselves; it specializes in mental health care. Not many
people realize the many acts of generosity practiced by this caring
statesman.
Most of us remember his beautiful wife of 55 years, Pauline.
While their marriage was not blessed with children, both of these
extraordinary people became parents to many, many children
throughout the state. The twelfth senatorial district Senator was not one to withhold his help from anyone in dire straits. And
Pauline loved him all the more for his concerted efforts to assist
the less fortunate.
In one particular case, a business was struggling under a
number of mechanic liens. The owner contacted all of the people to
whom he owed money. The CEO gathered the creditors in a room and
fed them--both good food and an honest explanation of the
business's economic standing. He asked for patience and faith in
his ability to repay any and all debt. The very first person to
stand up from his table was the twelfth senatorial district
Senator, who said, "I'll reduce your payment by $10,000 and buy
$10,000 in stock." Before the end of the evening, the company was
back in business and thrived for the next 20 years.
This example shows how the Senator from Lewis trusts everyone-
-only seeing the good in people. This character trait flows over
into his legislative duties. He sees us as his family. This
chamber is his living room. "Junior Rules" is his den. His call
to service was as if his participation was a spiritual mission.
His love for this institution is without parallel. If you showed
any disrespect for the West Virginia Senate, you had to deal with
the wrath of the senator from the twelfth senatorial district.
I will truly miss the presence of this spectacular man in this
chamber. He is like a brother to me, as well as to so many of you.
His lust for life was catching. I missed him the other day when the Mountaineers were recognized in this chamber for their victory
in the Fiesta Bowl. I could almost hear his vibrant, talented
voice leading us into the chorus of the Mountaineer fight song.
Although that was a wonderful day, the Lewis County lawmaker would
have made it a memorable occasion.
It has been said that lawmaking is like making sausage--a
person may not know all that goes into it. But, I, for one, can
guarantee you that the Senator from Lewis was in charge of adding
the spice. I will miss his presence in this law-making body. He
is truly the salt of the earth and the heart of the Senate.
Thank you for your attention.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573,
Increasing public school teachers' and service personnel annual
salaries.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages ten through twenty-two, by striking out all of
section eight-a and inserting in lieu thereof the following:
§18A-4-8. Employment term and class titles of service personnel;
definitions.
(a) The purpose of this section is to establish an employment
term and class titles for service personnel. The employment term
for service personnel may be no less than ten months. A month is
defined as twenty employment days: Provided, That the county board
may contract with all or part of these service personnel for a
longer term. The beginning and closing dates of the ten-month
employment term may not exceed forty-three weeks.
(b) Service personnel employed on a yearly or twelve-month
basis may be employed by calendar months. Whenever there is a
change in job assignment during the school year, the minimum pay
scale and any county supplement are applicable.
(c) Service personnel employed in the same classification for
more than the two hundred day minimum employment term shall be paid
for additional employment at a daily rate of not less than the
daily rate paid for the two hundred day minimum employment term.
(d) No service employee, without his or her agreement, may be
required to report for work more than five days per week and no
part of any working day may be accumulated by the employer for future work assignments, unless the employee agrees thereto.
(e) If an employee whose regular work week is scheduled from
Monday through Friday agrees to perform any work assignments on a
Saturday or Sunday, the employee shall be paid for at least
one-half day of work for each day he or she reports for work, and
if the employee works more than three and one-half hours on any
Saturday or Sunday, he or she shall be paid for at least a full day
of work for each day.
(f) Custodians, aides, maintenance, office and school lunch
employees required to work a daily work schedule that is
interrupted, that is, who do not work a continuous period in one
day, shall be paid additional compensation equal to at least one
eighth of their total salary as provided by their state minimum
salary and any county pay supplement, and payable entirely from
county funds: Provided, That when engaged in duties of
transporting students exclusively, aides shall not be regarded as
working an interrupted schedule. Maintenance personnel are defined
as personnel who hold a classification title other than in a
custodial, aide, school lunch, office or transportation category as
provided in section one, article one of this chapter.
(g) Upon the change in classification or upon meeting the
requirements of an advanced classification of or by any employee,
the employee's salary shall be made to comply with the requirements
of this article, and to any county salary schedule in excess of the minimum requirements of this article, based upon the employee's
advanced classification and allowable years of employment.
(h) An employee's contract as provided in section five,
article two of this chapter shall state the appropriate monthly
salary the employee is to be paid, based on the class title as
provided in this article and any county salary schedule in excess
of the minimum requirements of this article.
(i) The column heads of the state minimum pay scale and class
titles, set forth in section eight-a of this article, are defined
as follows:
(1) "Pay grade" means the monthly salary applicable to class
titles of service personnel;
(2) "Years of employment" means the number of years which an
employee classified as service personnel has been employed by a
board in any position prior to or subsequent to the effective date
of this section and including service in the armed forces of the
United States, if the employee were employed at the time of his or
her induction. For the purpose of section eight-a of this article,
years of employment shall be limited to the number of years shown
and allowed under the state minimum pay scale as set forth in
section eight-a of this article;
(3) "Class title" means the name of the position or job held
by service personnel;
(4) "Accountant I" means personnel employed to maintain payroll records and reports and perform one or more operations
relating to a phase of the total payroll;
(5) "Accountant II" means personnel employed to maintain
accounting records and to be responsible for the accounting process
associated with billing, budgets, purchasing and related
operations;
(6) "Accountant III" means personnel who are employed in the
county board office to manage and supervise accounts payable and/or
payroll procedures;
(7) "Accounts payable supervisor" means personnel who are
employed in the county board office who have primary responsibility
for the accounts payable function, which may include the
supervision of other personnel, and who have either completed
twelve college hours of accounting courses from an accredited
institution of higher education or have at least eight years of
experience performing progressively difficult accounting tasks;
(8) "Aide I" means those personnel selected and trained for
teacher-aide classifications such as monitor aide, clerical aide,
classroom aide or general aide;
(9) "Aide II" means those personnel referred to in the "Aide
I" classification who have completed a training program approved by
the state board, or who hold a high school diploma or have received
a general educational development certificate. Only personnel
classified in an Aide II class title may be employed as an aide in any special education program;
(10) "Aide III" means those personnel referred to in the "Aide
I" classification who hold a high school diploma or a general
educational development certificate and have completed six semester
hours of college credit at an institution of higher education or
are employed as an aide in a special education program and have one
year's experience as an aide in special education;
(11) "Aide IV" means personnel referred to in the "Aide I"
classification who hold a high school diploma or a general
educational development certificate and who have completed eighteen
hours of state board-approved college credit at a regionally
accredited institution of higher education, or who have completed
fifteen hours of state board-approved college credit at a
regionally accredited institution of higher education and
successfully completed an in-service training program determined by
the state board to be the equivalent of three hours of college
credit;
(12) "Audiovisual technician" means personnel employed to
perform minor maintenance on audiovisual equipment, films, supplies
and the filling of requests for equipment;
(13) "Auditor" means personnel employed to examine and verify
accounts of individual schools and to assist schools and school
personnel in maintaining complete and accurate records of their
accounts;
(14) "Autism mentor" means personnel who work with autistic
students and who meet standards and experience to be determined by
the state board: Provided, That if any employee has held or holds
an aide title and becomes employed as an autism mentor, the
employee shall hold a multiclassification status that includes aide
and autism mentor titles, in accordance with section eight-b of
this article;
(15) "Braille or sign language specialist" means personnel
employed to provide braille and/or sign language assistance to
students: Provided, That if any employee has held or holds an aide
title and becomes employed as a braille or sign language
specialist, the employee shall hold a multiclassification status
that includes aide and braille or sign language specialist title,
in accordance with section eight-b of this article;
(16) "Bus operator I" means personnel employed to operate
school buses and other school transportation vehicles as provided
by the state board;
(17) "Bus operator II" means personnel employed to operate
school buses and other school transportation vehicles as provided
by the state board that have accumulated at least twenty years'
service as a bus operator;
(17) (18) "Buyer" means personnel employed to review and write
specifications, negotiate purchase bids and recommend purchase
agreements for materials and services that meet predetermined specifications at the lowest available costs;
(18) (19) "Cabinetmaker" means personnel employed to construct
cabinets, tables, bookcases and other furniture;
(19) (20) "Cafeteria manager" means personnel employed to
direct the operation of a food services program in a school,
including assigning duties to employees, approving requisitions for
supplies and repairs, keeping inventories, inspecting areas to
maintain high standards of sanitation, preparing financial reports
and keeping records pertinent to food services of a school;
(20) (21) "Carpenter I" means personnel classified as a
carpenter's helper;
(21) (22) "Carpenter II" means personnel classified as a
journeyman carpenter;
(22) (23) "Chief mechanic" means personnel employed to be
responsible for directing activities which ensure that student
transportation or other board-owned vehicles are properly and
safely maintained;
(23) (24) "Clerk I" means personnel employed to perform
clerical tasks;
(24) (25) "Clerk II" means personnel employed to perform
general clerical tasks, prepare reports and tabulations and operate
office machines;
(25) (26) "Computer operator" means qualified personnel
employed to operate computers;
(26) (27) "Cook I" means personnel employed as a cook's
helper;
(27) (28) "Cook II" means personnel employed to interpret
menus, to prepare and serve meals in a food service program of a
school and shall include personnel who have been employed as a
"Cook I" for a period of four years, if the personnel have not been
elevated to this classification within that period of time;
(28) (29) "Cook III" means personnel employed to prepare and
serve meals, make reports, prepare requisitions for supplies, order
equipment and repairs for a food service program of a school
system;
(29) (30) "Crew leader" means personnel employed to organize
the work for a crew of maintenance employees to carry out assigned
projects;
(30) (31) "Custodian I" means personnel employed to keep
buildings clean and free of refuse;
(31) (32) "Custodian II" means personnel employed as a
watchman or groundsman;
(32) (33) "Custodian III" means personnel employed to keep
buildings clean and free of refuse, to operate the heating or
cooling systems and to make minor repairs;
(33) (34) "Custodian IV" means personnel employed as head
custodians. In addition to providing services as defined in
"custodian III", their duties may include supervising other custodian personnel;
(34) (35) "Director or coordinator of services" means
personnel who are assigned to direct a department or division.
Nothing in this subdivision may prohibit professional personnel or
professional educators as defined in section one, article one of
this chapter, from holding this class title, but professional
personnel may not be defined or classified as service personnel
unless the professional personnel held a service personnel title
under this section prior to holding class title of "director or
coordinator of services". Directors or coordinators of service
positions shall be classified as either a professional personnel or
service personnel position for state aid formula funding purposes
and funding for directors or coordinators of service positions
shall be based upon the employment status of the director or
coordinator either as a professional personnel or service
personnel;
(35) (36) "Draftsman" means personnel employed to plan, design
and produce detailed architectural/engineering drawings;
(36) (37) "Electrician I" means personnel employed as an
apprentice electrician helper or who holds an electrician helper
license issued by the State Fire Marshal;
(37) (38) "Electrician II" means personnel employed as an
electrician journeyman or who holds a journeyman electrician
license issued by the state fire marshal;
(38) (39) "Electronic technician I" means personnel employed
at the apprentice level to repair and maintain electronic
equipment;
(39) (40) "Electronic technician II" means personnel employed
at the journeyman level to repair and maintain electronic
equipment;
(40) (41) "Executive secretary" means personnel employed as
the county school superintendent's secretary or as a secretary who
is assigned to a position characterized by significant
administrative duties;
(41) (42) "Food services supervisor" means qualified personnel
not defined as professional personnel or professional educators in
section one, article one of this chapter, employed to manage and
supervise a county school system's food service program. The
duties would include preparing in-service training programs for
cooks and food service employees, instructing personnel in the
areas of quantity cooking with economy and efficiency and keeping
aggregate records and reports;
(42) (43) "Foremen" means skilled persons employed for
supervision of personnel who work in the areas of repair and
maintenance of school property and equipment;
(43) (44) "General maintenance" means personnel employed as
helpers to skilled maintenance employees and to perform minor
repairs to equipment and buildings of a county school system;
(44) (45) "Glazier" means personnel employed to replace glass
or other materials in windows and doors and to do minor carpentry
tasks;
(45) (46) "Graphic artist" means personnel employed to prepare
graphic illustrations;
(46) (47) "Groundsmen" means personnel employed to perform
duties that relate to the appearance, repair and general care of
school grounds in a county school system. Additional assignments
may include the operation of a small heating plant and routine
cleaning duties in buildings;
(47) (48) "Handyman" means personnel employed to perform
routine manual tasks in any operation of the county school system;
(48) (49) "Heating and air conditioning mechanic I" means
personnel employed at the apprentice level to install, repair and
maintain heating and air conditioning plants and related electrical
equipment;
(49) (50) "Heating and air conditioning mechanic II" means
personnel employed at the journeyman level to install, repair and
maintain heating and air conditioning plants and related electrical
equipment;
(50) (51) "Heavy equipment operator" means personnel employed
to operate heavy equipment;
(51) (52) "Inventory supervisor" means personnel who are
employed to supervise or maintain operations in the receipt, storage, inventory and issuance of materials and supplies;
(52) (53) "Key punch operator" means qualified personnel
employed to operate key punch machines or verifying machines;
(53) (54) "Locksmith" means personnel employed to repair and
maintain locks and safes;
(54) (55) "Lubrication man" means personnel employed to
lubricate and service gasoline or diesel-powered equipment of a
county school system;
(55) (56) "Machinist" means personnel employed to perform
machinist tasks which include the ability to operate a lathe,
planer, shaper, threading machine and wheel press. These personnel
should also have, the ability to work from blueprints and drawings;
(56) (57) "Mail clerk" means personnel employed to receive,
sort, dispatch, deliver or otherwise handle letters, parcels and
other mail;
(57) (58) "Maintenance clerk" means personnel employed to
maintain and control a stocking facility to keep adequate tools and
supplies on hand for daily withdrawal for all school maintenance
crafts;
(58) (59) "Mason" means personnel employed to perform tasks
connected with brick and block laying and carpentry tasks related
to such laying;
(59) (60) "Mechanic" means personnel employed who can
independently perform skilled duties in the maintenance and repair of automobiles, school buses and other mechanical and mobile
equipment to use in a county school system;
(60) (61) "Mechanic assistant" means personnel employed as a
mechanic apprentice and helper;
(61) (62) "Multiclassification" means personnel employed to
perform tasks that involve the combination of two or more class
titles in this section. In these instances the minimum salary
scale shall be the higher pay grade of the class titles involved;
(62) (63) "Office equipment repairman I" means personnel
employed as an office equipment repairman apprentice or helper;
(63) (64) "Office equipment repairman II" means personnel
responsible for servicing and repairing all office machines and
equipment. Personnel are responsible for parts being purchased
necessary for the proper operation of a program of continuous
maintenance and repair;
(64) (65) "Painter" means personnel employed to perform duties
of painting, finishing and decorating of wood, metal and concrete
surfaces of buildings, other structures, equipment, machinery and
furnishings of a county school system;
(65) (66) "Paraprofessional" means a person certified pursuant
to section two-a, article three of this chapter to perform duties
in a support capacity including, but not limited to, facilitating
in the instruction and direct or indirect supervision of pupils
under the direction of a principal, a teacher or another designated professional educator: Provided, That no person employed on the
effective date of this section in the position of an aide may be
reduced in force or transferred to create a vacancy for the
employment of a paraprofessional: Provided, however, That if any
employee has held or holds an aide title and becomes employed as a
paraprofessional, the employee shall hold a multiclassification
status that includes aide and paraprofessional titles in accordance
with section eight-b of this article: Provided further, That once
an employee who holds an aide title becomes certified as a
paraprofessional and is required to perform duties that may not be
performed by an aide without paraprofessional certification, he or
she shall receive the paraprofessional title pay grade;
(66) (67) "Payroll supervisor" means personnel who are
employed in the county board office who have primary responsibility
for the payroll function, which may include the supervision of
other personnel, and who have either completed twelve college hours
of accounting from an accredited institution of higher education or
have at least eight years of experience performing progressively
difficult accounting tasks;
(67) (68) "Plumber I" means personnel employed as an
apprentice plumber and helper;
(68) (69) "Plumber II" means personnel employed as a
journeyman plumber;
(69) (70) "Printing operator" means personnel employed to operate duplication equipment, and as required, to cut, collate,
staple, bind and shelve materials;
(70) (71) "Printing supervisor" means personnel employed to
supervise the operation of a print shop;
(71) (72) "Programmer" means personnel employed to design and
prepare programs for computer operation;
(72) (73) "Roofing/sheet metal mechanic" means personnel
employed to install, repair, fabricate and maintain roofs, gutters,
flashing and duct work for heating and ventilation;
(73) (74) "Sanitation plant operator" means personnel employed
to operate and maintain a water or sewage treatment plant to ensure
the safety of the plant's effluent for human consumption or
environmental protection;
(74) (75) "School bus supervisor" means qualified personnel
employed to assist in selecting school bus operators and routing
and scheduling of school buses, operate a bus when needed, relay
instructions to bus operators, plan emergency routing of buses and
promoting good relationships with parents, pupils, bus operators
and other employees;
(75) (76) "Secretary I" means personnel employed to transcribe
from notes or mechanical equipment, receive callers, perform
clerical tasks, prepare reports and operate office machines;
(76) (77) "Secretary II" means personnel employed in any
elementary, secondary, kindergarten, nursery, special education, vocational or any other school as a secretary. The duties may
include performing general clerical tasks, transcribing from notes
or stenotype or mechanical equipment or a sound-producing machine,
preparing reports, receiving callers and referring them to proper
persons, operating office machines, keeping records and handling
routine correspondence. There is nothing implied in this
subdivision that would prevent the employees from holding or being
elevated to a higher classification;
(77) (78) "Secretary III" means personnel assigned to the
county board office administrators in charge of various
instructional, maintenance, transportation, food services,
operations and health departments, federal programs or departments
with particular responsibilities of purchasing and financial
control or any personnel who have served in a position which meets
the definition of "secretary II" or "secretary III" in this section
for eight years;
(78) (79) "Supervisor of maintenance" means skilled personnel
not defined as professional personnel or professional educators as
in section one, article one of this chapter. The responsibilities
would include directing the upkeep of buildings and shops, issuing
instructions to subordinates relating to cleaning, repairs and
maintenance of all structures and mechanical and electrical
equipment of a board;
(79) (80) "Supervisor of transportation" means qualified personnel employed to direct school transportation activities,
properly and safely, and to supervise the maintenance and repair of
vehicles, buses and other mechanical and mobile equipment used by
the county school system;
(80) (81) "Switchboard operator-receptionist" means personnel
employed to refer incoming calls, to assume contact with the
public, to direct and to give instructions as necessary, to operate
switchboard equipment and to provide clerical assistance;
(82) "Technology system specialist" means personnel who has
expertise in technology fields and meets the education and
certification requirements determined by the state board and is
employed to support and maintain local area networks, servers,
computer workstations and other computer-related systems and
technologies;
(81) (83) "Truck driver" means personnel employed to operate
light or heavy duty gasoline and diesel-powered vehicles;
(82) (84) "Warehouse clerk" means personnel employed to be
responsible for receiving, storing, packing and shipping goods;
(83) (85) "Watchman" means personnel employed to protect
school property against damage or theft. Additional assignments
may include operation of a small heating plant and routine cleaning
duties;
(84) (86) "Welder" means personnel employed to provide
acetylene or electric welding services for a school system; and
(85) (87) "WVEIS data entry and administrative clerk" means
personnel employed to work under the direction of a school
principal to assist the school counselor or counselors in the
performance of administrative duties, to perform data entry tasks
on the West Virginia education information system, and to perform
other administrative duties assigned by the principal.
(j) In addition to the compensation provided for in section
eight-a of this article, for service personnel, each service
employee is, notwithstanding any provisions in this code to the
contrary, entitled to all service personnel employee rights,
privileges and benefits provided under this or any other chapter of
this code without regard to the employee's hours of employment or
the methods or sources of compensation.
(k) Service personnel whose years of employment exceed the
number of years shown and provided for under the state minimum pay
scale set forth in section eight-a of this article may not be paid
less than the amount shown for the maximum years of employment
shown and provided for in the classification in which he or she is
employed.
(l) The county boards shall review each service personnel
employee job classification annually and shall reclassify all
service employees as required by the job classifications. The
state superintendent of schools may withhold state funds
appropriated pursuant to this article for salaries for service personnel who are improperly classified by the county boards.
Further, the state superintendent shall order county boards to
correct immediately any improper classification matter and with the
assistance of the attorney general shall take any legal action
necessary against any county board to enforce the order.
(m) No service employee, without his or her written consent,
may be reclassified by class title, nor may a service employee,
without his or her written consent, be relegated to any condition
of employment which would result in a reduction of his or her
salary, rate of pay, compensation or benefits earned during the
current fiscal year or which would result in a reduction of his or
her salary, rate of pay, compensation or benefits for which he or
she would qualify by continuing in the same job position and
classification held during that fiscal year and subsequent years.
(n) Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus, and is liable to any
party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(o) Notwithstanding any provisions in this code to the
contrary, service personnel who hold a continuing contract in a
specific job classification and who are physically unable to
perform the job's duties as confirmed by a physician chosen by the
employee shall be given priority status over any employee not holding a continuing contract in filling other service personnel
job vacancies if qualified as provided in section eight-e of this
article.
§18A-4-8a. Service personnel minimum monthly salaries.
(a) The minimum monthly pay for each service employee whose
employment is for a period of more than three and one-half hours a
day shall be at least the amounts indicated in the "state minimum
pay scale pay grade" and the minimum monthly pay for each service
employee whose employment is for a period of three and one-half
hours or less a day shall be at least one-half the amount indicated
in the "state minimum pay scale pay grade" set forth in this
section.
STATE MINIMUM PAY SCALE PAY GRADE
|
Years
Exp
.
|
PAY GRADE
|
|
A
|
B
|
C
|
D
|
E
|
F
|
G
|
H
|
0
|
1,577
|
1,598
|
1,639
|
1,691
|
1,743
|
1,805
|
1,836
|
1,908
|
1
|
1,609
|
1,630
|
1,671
|
1,723
|
1,775
|
1,837
|
1,868
|
1,940
|
2
|
1,641
|
1,662
|
1,703
|
1,755
|
1,807
|
1,869
|
1,900
|
1,972
|
3
|
1,673
|
1,694
|
1,735
|
1,787
|
1,839
|
1,901
|
1,932
|
2,004
|
4
|
1,705
|
1,726
|
1,767
|
1,819
|
1,871
|
1,933
|
1,964
|
2,037
|
5
|
1,737
|
1,758
|
1,799
|
1,851
|
1,903
|
1,965
|
1,996
|
2,069
|
6
|
1,769
|
1,790
|
1,832
|
1,883
|
1,935
|
1,997
|
2,028
|
2,101
|
7
|
1,802
|
1,822
|
1,864
|
1,915
|
1,967
|
2,029
|
2,060
|
2,133
|
8
|
1,834
|
1,854
|
1,896
|
1,947
|
1,999
|
2,061
|
2,092
|
2,165
|
9
|
1,866
|
1,886
|
1,928
|
1,980
|
2,031
|
2,093
|
2,124
|
2,197
|
10
|
1,898
|
1,919
|
1,960
|
2,012
|
2,063
|
2,126
|
2,157
|
2,229
|
11
|
1,930
|
1,951
|
1,992
|
2,044
|
2,095
|
2,158
|
2,189
|
2,261
|
12
|
1,962
|
1,983
|
2,024
|
2,076
|
2,128
|
2,190
|
2,221
|
2,293
|
13
|
1,994
|
2,015
|
2,056
|
2,108
|
2,160
|
2,222
|
2,253
|
2,325
|
14
|
2,026
|
2,047
|
2,088
|
2,140
|
2,192
|
2,254
|
2,285
|
2,357
|
15
|
2,058
|
2,079
|
2,120
|
2,172
|
2,224
|
2,286
|
2,317
|
2,389
|
16
|
2,090
|
2,111
|
2,152
|
2,204
|
2,256
|
2,318
|
2,349
|
2,422
|
17
|
2,122
|
2,143
|
2,185
|
2,236
|
2,288
|
2,350
|
2,381
|
2,454
|
18
|
2,154
|
2,175
|
2,217
|
2,268
|
2,320
|
2,382
|
2,413
|
2,486
|
19
|
2,187
|
2,207
|
2,249
|
2,300
|
2,352
|
2,414
|
2,445
|
2,518
|
20
|
2,219
|
2,239
|
2,281
|
2,333
|
2,384
|
2,446
|
2,477
|
2,550
|
21
|
2,251
|
2,271
|
2,313
|
2,365
|
2,416
|
2,478
|
2,509
|
2,582
|
22
|
2,283
|
2,304
|
2,345
|
2,397
|
2,448
|
2,511
|
2,542
|
2,614
|
23
|
2,315
|
2,336
|
2,377
|
2,429
|
2,481
|
2,543
|
2,574
|
2,646
|
24
|
2,347
|
2,368
|
2,409
|
2,461
|
2,513
|
2,575
|
2,606
|
2,678
|
25
|
2,379
|
2,400
|
2,441
|
2,493
|
2,545
|
2,607
|
2,638
|
2,710
|
26
|
2,411
|
2,432
|
2,473
|
2,525
|
2,577
|
2,639
|
2,670
|
2,742
|
27
|
2,443
|
2,464
|
2,505
|
2,557
|
2,609
|
2,671
|
2,702
|
2,774
|
28
|
2,475
|
2,496
|
2,537
|
2,589
|
2,641
|
2,703
|
2,734
|
2,807
|
29
|
2,507
|
2,528
|
2,570
|
2,621
|
2,673
|
2,735
|
2,766
|
2,839
|
30
|
2,540
|
2,560
|
2,602
|
2,653
|
2,705
|
2,767
|
2,798
|
2,871
|
31
|
2,572
|
2,592
|
2,634
|
2,685
|
2,737
|
2,799
|
2,830
|
2,903
|
32
|
2,604
|
2,624
|
2,666
|
2,718
|
2,769
|
2,831
|
2,862
|
2,935
|
33
|
2,636
|
2,656
|
2,698
|
2,750
|
2,801
|
2,863
|
2,895
|
2,967
|
34
|
2,668
|
2,689
|
2,730
|
2,782
|
2,833
|
2,896
|
2,927
|
2,999
|
35
|
2,700
|
2,721
|
2,762
|
2,814
|
2,866
|
2,928
|
2,959
|
3,031
|
36
|
2,732
|
2,753
|
2,794
|
2,846
|
2,898
|
2,960
|
2,991
|
3,063
|
37
|
2,764
|
2,785
|
2,826
|
2,878
|
2,930
|
2,992
|
3,023
|
3,095
|
38
|
2,796
|
2,817
|
2,858
|
2,910
|
2,962
|
3,024
|
3,055
|
3,127
|
39
|
2,828
|
2,849
|
2,890
|
2,942
|
2,994
|
3,056
|
3,087
|
3,159
|
40
|
2,860
|
2,881
|
2,922
|
2,974
|
3,026
|
3,088
|
3,119
|
3,192
|
CLASS TITLE PAY GRADE
Accountant ID
Accountant IIE
Accountant IIIF
Accounts Payable SupervisorG
Aide IA
Aide IIB
Aide IIIC
Aide IVD
Audiovisual TechnicianC
AuditorG
Autism MentorF
Braille or Sign Language SpecialistE
Bus OperatorD
Bus Operator IIE
BuyerF
CabinetmakerG
Cafeteria ManagerE
Carpenter IE
Carpenter IIF
Chief MechanicG
Clerk IB
Clerk IIC
Computer OperatorE
Cook IA
Cook IIB
Cook IIIC
Crew LeaderF
Custodian IA
Custodian IIB
Custodian IIIC
Custodian IVD
Director or Coordinator of ServicesH
DraftsmanD
Electrician IF
Electrician IIG
Electronic Technician IF
Electronic Technician IIG
Executive SecretaryG
Food Services SupervisorG
ForemanG
General MaintenanceC
GlazierD
Graphic ArtistD
GroundsmanB
HandymanB
Heating and Air Conditioning Mechanic IE
Heating and Air Conditioning Mechanic IIG
Heavy Equipment OperatorE
Inventory SupervisorD
Key Punch OperatorB
Licensed Practical NurseF
LocksmithG
Lubrication ManC
MachinistF
Mail ClerkD
Maintenance ClerkC
MasonG
MechanicF
Mechanic AssistantE
Office Equipment Repairman IF
Office Equipment Repairman IIG
PainterE
ParaprofessionalF
Payroll SupervisorG
Plumber IE
Plumber IIG
Printing OperatorB
Printing SupervisorD
ProgrammerH
Roofing/Sheet Metal MechanicF
Sanitation Plant OperatorG
School Bus SupervisorE
Secretary ID
Secretary IIE
Secretary IIIF
Supervisor of MaintenanceH
Supervisor of TransportationH
Switchboard Operator-ReceptionistD
Technology System SpecialistF
Truck DriverD
Warehouse ClerkC
WatchmanB
WelderF
WVEIS Data Entry and Administrative Clerk B
(b) An additional twelve dollars per month shall be added to
the minimum monthly pay of each service employee who holds a high
school diploma or its equivalent.
(c) An additional eleven dollars per month also shall be added
to the minimum monthly pay of each service employee for each of the
following:
(1) A service employee who holds twelve college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(2) A service employee who holds twenty-four college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(3) A service employee who holds thirty-six college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(4) A service employee who holds forty-eight college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(5) A service employee who holds sixty college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(6) A service employee who holds seventy-two college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(7) A service employee who holds eighty-four college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(8) A service employee who holds ninety-six college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(9) A service employee who holds one hundred eight college
hours or comparable credit obtained in a trade or vocational school
as approved by the state board;
(10) A service employee who holds one hundred twenty college
hours or comparable credit obtained in a trade or vocational school
as approved by the state board.
(d) An additional forty dollars per month also shall be added
to the minimum monthly pay of each service employee for each of the
following:
(1) A service employee who holds an associate's degree;
(2) A service employee who holds a bachelor's degree;
(3) A service employee who holds a master's degree;
(4) A service employee who holds a doctorate degree.
(e) An additional eleven dollars per month shall be added to
the minimum monthly pay of each service employee for each of the
following:
(1) A service employee who holds a bachelor's degree plus
fifteen college hours;
(2) A service employee who holds a master's degree plus
fifteen college hours;
(3) A service employee who holds a master's degree plus thirty
college hours;
(4) A service employee who holds a master's degree plus
forty-five college hours; and
(5) A service employee who holds a master's degree plus sixty
college hours.
(f) When any part of a school service employee's daily shift of work is performed between the hours of six o'clock p.m. and five
o'clock a.m. the following day, the employee shall be paid no less
than an additional ten dollars per month and one half of the pay
shall be paid with local funds.
(g) Any service employee required to work on any legal school
holiday shall be paid at a rate one and one-half times the
employee's usual hourly rate.
(h) Any full-time service personnel required to work in excess
of their normal working day during any week which contains a school
holiday for which they are paid shall be paid for the additional
hours or fraction of the additional hours at a rate of one and
one-half times their usual hourly rate and paid entirely from
county board funds.
(i) No service employee may have his or her daily work
schedule changed during the school year without the employee's
written consent and the employee's required daily work hours may
not be changed to prevent the payment of time and one-half wages or
the employment of another employee.
(j) The minimum hourly rate of pay for extra duty assignments
as defined in section eight-b of this article shall be no less than
one seventh of the employee's daily total salary for each hour the
employee is involved in performing the assignment and paid entirely
from local funds: Provided, That an alternative minimum hourly
rate of pay for performing extra duty assignments within a particular category of employment may be used if the alternate
hourly rate of pay is approved both by the county board and by the
affirmative vote of a two-thirds majority of the regular full-time
employees within that classification category of employment within
that county: Provided, however, That the vote shall be by secret
ballot if requested by a service personnel employee within that
classification category within that county. The salary for any
fraction of an hour the employee is involved in performing the
assignment shall be prorated accordingly. When performing extra
duty assignments, employees who are regularly employed on a
one-half day salary basis shall receive the same hourly extra duty
assignment pay computed as though the employee were employed on a
full-day salary basis.
(k) The minimum pay for any service personnel employees
engaged in the removal of asbestos material or related duties
required for asbestos removal shall be their regular total daily
rate of pay and no less than an additional three dollars per hour
or no less than five dollars per hour for service personnel
supervising asbestos removal responsibilities for each hour these
employees are involved in asbestos related duties. Related duties
required for asbestos removal include, but are not limited to,
travel, preparation of the work site, removal of asbestos
decontamination of the work site, placing and removal of equipment
and removal of structures from the site. If any member of an asbestos crew is engaged in asbestos related duties outside of the
employee's regular employment county, the daily rate of pay shall
be no less than the minimum amount as established in the employee's
regular employment county for asbestos removal and an additional
thirty dollars per each day the employee is engaged in asbestos
removal and related duties. The additional pay for asbestos
removal and related duties shall be payable entirely from county
funds. Before service personnel employees may be used in the
removal of asbestos material or related duties, they shall have
completed a federal Environmental Protection Act approved training
program and be licensed. The employer shall provide all necessary
protective equipment and maintain all records required by the
Environmental Protection Act.
(l) For the purpose of qualifying for additional pay as
provided in section eight, article five of this chapter, an aide
shall be considered to be exercising the authority of a supervisory
aide and control over pupils if the aide is required to supervise,
control, direct, monitor, escort or render service to a child or
children when not under the direct supervision of certified
professional personnel within the classroom, library, hallway,
lunchroom, gymnasium, school building, school grounds or wherever
supervision is required. For purposes of this section, "under the
direct supervision of certified professional personnel" means that
certified professional personnel is present, with and accompanying the aide.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §18A-4-2, §18A-4-3, §18A-4-8 and §18A-4-8a of the Code of
West Virginia, 1931, as amended, be amended and reenacted, all to
read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573--A Bill
to amend and reenact §18A-4-2, §18A-4-3, §18A-4-8 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; providing for certain class titles and pay
grades; and increasing minimum salaries of school service
personnel.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 573) and requested the House of Delegates to
recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:49 p.m. tonight:
Eng. Com. Sub. for House Bill No. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 9, Mandating hunter safety
program in public schools.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-8a. Hunter safety orientation program.
(a) The Legislature finds that:
(1) Firearms and hunting are important parts of West Virginia's history, culture and economy;
(2) Unfortunately, the use of firearms while hunting or at any
other time can be dangerous when the firearms are not handled in a
careful and safe manner; and
(3) Therefore, the opportunity of participating in a hunter
safety orientation program should be offered to students in certain
grades.
(b) The State Board of Education may shall, with the advice of
the State Superintendent of Schools and the Director of the
Division of Natural Resources, prescribe an promulgate a rule in
accordance with the provisions of article three-b, chapter twenty-
nine-a of this code for the implementation of a hunter safety
orientation program for use in the public schools of this state. in
the safety of firearms. The rule shall include at least the
following provisions:
(1) The hunter safety orientation program shall deal with may
be offered to students in any of the grade levels sixth through
twelfth grades over a two-week period during the school year as
part of physical education classes, or as part of the general
curriculum offered to students in any of these grade levels, or at
the end of the school day;
(2) The hunter safety orientation program is voluntary to
students and any student may choose not to participate in the
program. If a student chooses not to participate in the program, he or she shall participate in another education activity;
(3) The hunter safety orientation program shall include
instruction relating to:
(A) The protection of lives and property against loss or
damage as a result of the improper use of firearms.; and
(B) The orientation program shall also include instruction
about the proper use of firearms in hunting, sport competition and
the care and safety of firearms in the home; and
(4) The hunter safety orientation program may utilize use
materials prepared by any national nonprofit membership
organization which has as one of its purposes the training of
people in marksmanship and the safe handling and use of firearms;
and
(5) The hunter safety orientation program shall be conducted
by an instructor certified by the Division of Natural Resources or
who has other training necessary to conduct the program as
determined by the state board.
(c) The county superintendent may arrange for such implement
the hunter safety orientation program in the safety of firearms and
its use accordance with the rule required by this section in each
school in the county that includes any of grades six through twelve
at which, in the sole judgement of the superintendent, sufficient
student interest in program enrollment justifies the program
offering and an appropriately certified instructor is available.
(d) The Division of Natural Resources shall issue a
certificate of training, required by section thirty-a, article two,
chapter twenty of this code, to any student who completes the
hunter safety orientation program.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 9--A Bill to amend and
reenact §18-2-8a of the Code of West Virginia, 1931, as amended,
relating to hunter safety orientation programs in the public
schools; providing for state board rule; minimum requirements;
permissive implementation; and certification of program completers.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 9, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 9) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 142, Relating to limited
expungement of certain criminal records.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5-1-16a the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto a new section, designated §61-11-26, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
§5-1-16a. Expungement of criminal record upon full and
unconditional pardon.
(a) Any person who has received a full and unconditional
pardon from the Governor, pursuant to the provisions of section
eleven, article VII of the Constitution of West Virginia and
section sixteen of this article, may petition the circuit court in
the county where the conviction was had to have the record of such
conviction expunged. The petition shall be served upon the
prosecuting attorney of the county where the petition was filed.
Any person petitioning the court for an order of expungement shall
publish a notice of the time and place that such petition will be
made, which notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such
publication shall be the county where the petition is filed. The
circuit court, upon verification of the act of pardon and after a
hearing to determine that good cause exists, may enter an order
directing that all public record of the petitioner's conviction be
expunged.
(b) The record expunged pursuant to the provisions of this
section may not be considered in an application to any educational institution in this state or an application for any licensure
required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to
this section until two years one year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to
this section until twenty five years after the discharge of his or
her sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of
conviction of first degree murder, as defined in section one,
article two, chapter sixty-one of this code; treason, as defined in
section one, article one of said chapter; kidnapping, as defined in
section fourteen-a, article two of said chapter; or any felony
defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions;
procedures; effect.
(a) Any person convicted of a misdemeanor offense or offenses
arising from the same transaction committed while he or she was
between the ages of eighteen and twenty-six may, pursuant to the
provisions of this section, petition the circuit court in which the
conviction or convictions occurred for expungement of the
conviction or convictions and the records associated therewith.
The clerk of the circuit court shall charge and collect in advance the same fee as is charged for instituting a civil action pursuant
to subdivision (1), subsection (a), section eleven, article one,
chapter fifty-nine of this code for a petition for expungement.
(b) Expungement shall not be available for any conviction of
an offense listed in subsection (j) of this section. The relief
afforded by this subsection is only available to persons having no
other prior or subsequent convictions other than minor traffic
violations at the time the petition is filed: Provided, That at
the time the petition is filed and during the time the petition is
pending, petitioner may not be the subject of an arrest or any
other pending criminal proceeding. No person shall be eligible for
expungement pursuant to the provisions of subsection (a) of this
section until one year after the conviction, completion of any
sentence of incarceration or probation, whichever is later in time.
(c) Each petition to expunge a conviction or convictions
pursuant to this section shall be verified under oath and include
the following information:
(1) Petitioner's current name and all other legal names or
aliases by which petitioner has been known at any time;
(2) All of petitioner's addresses from the date of the offense
or alleged offense in connection with which an expungement order is
sought to date of the petition;
(3) Petitioner's date of birth and social security number;
(4) Petitioner's date of arrest, the court of jurisdiction and criminal complaint, indictment, summons or case number;
(5) The statute or statutes and offense or offenses for which
petitioner was charged and of which petitioner was convicted;
(6) The names of any victim or victims, or that there were no
identifiable victims;
(7) Whether there is any current order for restitution,
protection, restraining order or other no contact order prohibiting
the petitioner from contacting the victims or whether there has
ever been a prior order for restitution, protection or restraining
order prohibiting the petitioner from contacting the victim. If
there is such a current order, petitioner shall attach a copy of
that order to his or her petition;
(8) The court's disposition of the matter and punishment
imposed, if any;
(9) Why expungement is sought, such as, but not limited to,
employment or licensure purposes, and why it should be granted;
(10) The steps the petitioner has taken since the time of the
offenses toward personal rehabilitation, including treatment, work
or other personal history that demonstrates rehabilitation;
(11) Whether petitioner has ever been granted expungement or
similar relief regarding a criminal conviction by any court in this
state, any other state or by any federal court;
(12) Documentation of the notice publication required by
subsection (d) of this section; and
(13) Any other supporting documents, sworn statements,
affidavits or other information supporting the petition to expunge.
(d) Any person petitioning the court for an order of
expungement pursuant to the provisions of subsection (a) of this
section shall publish a notice that such petition is being made,
which notice shall include the petitioner's name; the time and
identification of the conviction or convictions for which
petitioner seeks expungement; that expungement is sought pursuant
to section twenty-six, article eleven, chapter sixty-one of this
code; the court in which the petition will be filed; and the right
of any individual to file a notice of opposition to the petition in
the circuit court within ten days of the publication of notice.
The notice shall be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code and the publication area for such publication shall be
the county where the petition is filed.
(e) A copy of the petition, with any supporting documentation,
shall be served by petitioner pursuant to the rules of the trial
court upon the Superintendent of the State Police; the prosecuting
attorney of the county of conviction; the chief of police or other
executive head of the municipal police department wherein the
offense was committed; the chief law-enforcement officer of any
other law-enforcement agency which participated in the arrest of
the petitioner; the superintendent or warden of any institution in which the petitioner was confined; the magistrate court or
municipal court which disposed of the petitioner's criminal charge;
and all other state and local government agencies whose records
would be affected by the proposed expungement. The prosecutorial
office that had jurisdiction over the offense or offenses for which
expungement is sought shall serve by first class mail the petition
for expungement, accompanying documentation and any proposed
expungement order to any identified victims.
(f) Upon receipt of a petition for expungement, or notice
pursuant to subsection (d) of this section, the Superintendent of
the State Police; the prosecuting attorney of the county of
conviction; the chief of police or other executive head of the
municipal police department wherein the offense was committed; the
chief law-enforcement officer of any other law-enforcement agency
which participated in the arrest of the petitioner; the
superintendent or warden of any institution in which the petitioner
was confined; the magistrate court or municipal court which
disposed of the petitioner's criminal charge; all other state and
local government agencies whose records would be affected by the
proposed expungement and any other interested individual or agency
that desires to oppose the expungement shall, within thirty days of
receipt of the petition or notice of the petition pursuant to
subsection (d) of this section, file a notice of opposition with
the court with supporting documentation and sworn statements setting forth the reasons for resisting the petition for
expungement. A copy of any notice of opposition with supporting
documentation and sworn statements shall be served upon the
petitioner in accordance with trial court rules. The petitioner
may file a reply no later than ten days after service of any notice
of opposition to the petition for expungement.
(g) The burden of proof shall be on the petitioner to prove by
clear and convincing evidence that: (1) The conviction or
convictions for which expungement is sought are the only
convictions against petitioner and that the conviction or
convictions are not excluded from expungement by subsection (j) of
this section; (2) that the requisite time period has passed since
the conviction or convictions or end of the completion of any
sentence of incarceration or probation; (3) petitioner has no
criminal charges pending against him or her; (4) the expungement is
consistent with the public welfare; (5) petitioner has, by his or
her behavior since the conviction or convictions, evidenced that he
or she has been rehabilitated and is law-abiding; and (6) any other
matter deemed appropriate or necessary by the court to make a
determination regarding the petition for expungement.
(h) Within sixty days of the filing of a petition for
expungement the circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or
(3) Summarily deny the petition if the court determines that
the petition is insufficient or, based upon supporting
documentation and sworn statements filed in opposition to the
petition, the court determines that the petitioner, as a matter of
law, is not entitled to expungement.
(i) If the court sets the matter for hearing, all interested
parties who have filed a notice of opposition shall be notified.
At the hearing, the court may inquire into the background of the
petitioner and shall have access to any reports or records relating
to the petitioner that are on file with any law-enforcement
authority, the institution of confinement, if any, and parole
authority or other agency which was in any way involved with the
petitioner's arrest, conviction, sentence and post-conviction
supervision, including any record of arrest or conviction in any
other state or federal court. The court may hear testimony of
witnesses and any other matter the court deems proper and relevant
to its determination regarding the petition. The court shall enter
an order reflecting its ruling on the petition for expungement with
appropriate findings of fact and conclusions of law.
(j) No person shall be eligible for expungement of a
conviction and the records associated therewith pursuant to the
provisions of subsection (a) of this section for any violation
involving the infliction of serious physical injury; involving the
provisions of article eight-b of this chapter where the petitioner was eighteen years old, or older, at the time the violation
occurred and the victim was twelve years of age, or younger, at the
time the violation occurred; involving the use or exhibition of a
deadly weapon or dangerous instrument; of the provisions of
subsection (b) or (c), section nine, article two of this chapter
where the victim was a spouse, a person with whom the person
seeking expungement had a child in common or with whom the person
seeking expungement ever cohabitated prior to the offense; any
violation of the provisions of section twenty-eight of said
article; a conviction for driving under the influence of alcohol,
controlled substances or a conviction for a violation of section
three, article four, chapter seventeen-b of this code or section
nineteen, article eight of this chapter.
(k) If the court grants the petition for expungement, it shall
order the sealing of all records in the custody of the court and
expungement of any records in the custody of any other agency or
official, including law-enforcement records. Every agency with
records relating to the arrest, charge or other matters arising out
of the arrest or conviction that is ordered to expunge records
shall certify to the court within sixty days of the entry of the
expungement order that the required expungement has been completed.
All orders enforcing the expungement procedure shall also be
sealed.
(l) Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall
reply to any inquiry that no record exists on the matter. The
person whose record is expunged shall not have to disclose the fact
of the record or any matter relating thereto on an application for
employment, credit or other type of application.
(m) Inspection of the sealed records in the court's possession
may thereafter be permitted by the court only upon a motion by the
person who is the subject of the records or upon a petition filed
by a prosecuting attorney that inspection and possible use of the
records in question are necessary to the investigation or
prosecution of a crime in this state or another jurisdiction. If
the court finds that the interests of justice will be served by
granting a petition to inspect the sealed record, it may be
granted.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 142--A Bill to amend and
reenact §5-1-16a of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new section, designated
§61-11-26, all relating to expungement of certain criminal records
generally; changing time frames for petitions for expungement after
gubernatorial pardons; authorizing expungement of certain criminal
convictions committed between the ages of eighteen and twenty-six; petition for expungement fee; time frame for eligibility for
expungement; contents of the petition for expungement; service,
notice and publication requirements for the petition for
expungement; prosecutor and state agency opposition to the petition
for expungement; burden of proof; court procedure for hearing and
ruling upon the petition; crimes which are not eligible for
expungement; and establishing procedures for sealing and later use
of expunged records.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 142, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 142) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 224, Creating Joint
Emergency Services Act of 2008.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 224--A Bill to authorize
the county commission of Jefferson County to create a joint
emergency services agency; legislative findings; and management by
a joint emergency services board.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 224, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 224) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 287,
Establishing West Virginia Research Trust Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page nine, section two, line fifty-nine, by striking out
the word "and";
On page nine, section two, line sixty-two, after the word
"chapter" by changing the period to a semicolon and inserting the following: and
(10) "State college" means the West Virginia School of
Osteopathic Medicine, Bluefield State College, Concord University,
Fairmont State University, Glenville State College, Shepherd
University, West Liberty State College or West Virginia State
University.;
On page ten, section three, lines twenty-five through thirty-
five, by striking out the remainder of the subsection and inserting
in lieu thereof the words "to provide matching research funds to
state colleges in accordance with the provisions of section ten of
this article.";
On page sixteen, section six, line sixteen, by striking out
the word "or";
On page sixteen, section six, after line eighteen, by
inserting a new paragraph, designated paragraph (F), to read as
follows:
"(F) Gerontology; or";
On page twenty-three, section ten, line eight, after the word
"two" by striking out the comma and the words "article one of this
chapter" and inserting in lieu thereof the words "of this article";
And,
On page twenty-six, section eleven, line twenty-four, by
striking out the words "from the research endowments" and inserting
in lieu thereof the words "of the research endowment proceeds".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 287, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 287) 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 Com. Sub. for S. B. No. 287) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:55 p.m. tonight:
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive
gambling.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 699, Establishing OxyContin
Asset Forfeiture Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page six, after section two, by inserting a new section,
designated section two-a, to read as follows:
§4-11B-2a. Grant program.
West Virginia's Partnership to Promote Community Well-Being,
created by Executive Order No. 8-04, to be a planning body for
substance abuse prevention and intervention, shall be responsible
for establishing a long-term strategic plan that incorporates
elements of prevention, substance abuse treatment and enforcement.
In addition, the partnership shall provide oversight as determined
by the West Virginia State Police, establish a grant application
process and determine the recipients of Drug-Free West Virginia
grants supported by asset forfeiture funds to be used to support
successful models of drug prevention, substance abuse treatment and
enforcement strategies that are working in West Virginia and to
fund replication grants of successful programs. Four million
dollars shall be directed to the Drug-Free West Virginia grant
program and one hundred thousand dollars shall be directed to the
Partnership To Promote Community Well-being upon approval of the U.
S. Department of Justice in compliance with their Guide to
Equitable Sharing of Federally Forfeited Property for State and
Local Law Enforcement Agencies.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §4-11B-1, §4-11B-2, §4-
11B-2a, §4-11B-3 and §4-11B-4, all to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 699--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §4-11B-1, §4-11B-2,§4-11B-2a, §4-11B-3 and §4-
11B-4, all relating to the establishment of the OxyContin Asset
Forfeiture Fund; making legislative findings; providing that moneys
in the fund be appropriated by the Legislature; providing that the
Partnership to Promote Community Well-Being will develop an
application process and distribute Drug-Free West Virginia grants;
limiting expenditures; and requiring annual reports.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 699) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 309, Increasing Secretary
of Transportation and Commissioner of Highways salary when one
person serves as both.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section two-a, line thirty-four, by striking
out the words "Director, Division of Personnel, seventy thousand
dollars;";
And,
One page five, section two-a, line eighty-four, after the word
"dollars;" by inserting the words "Director, Division of Personnel,
seventy thousand dollars;".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 309, as
amended by the House of Delegates, was then 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, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Unger--3.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 309) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, 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,
Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Unger--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 309) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 417, Authorizing Department
of Revenue promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF REVENUE TO PROMULGATE
LEGISLATIVE RULES.
§64-7-1. Alcohol Beverage Control Commission.
(a) The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand seven, authorized under the
authority of section six, article three-a, chapter sixty of this
code, modified by the Alcohol Beverage Control Commission to meet
the objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-second day of January,
two thousand eight, relating to the Alcohol Beverage Control
Commission (retail licensee operations, 175 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand seven, authorized under the
authority of section twenty-three, article eight, chapter sixty of
this code, modified by the Alcohol Beverage Control Commission to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the twenty-second day of
January, two thousand eight, relating to the Alcohol Beverage Control Commission (farm wineries, 175 CSR 3), is authorized.
(c) The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand seven, authorized under the
authority of section six, article three-a, chapter sixty of this
code, modified by the Alcohol Beverage Control Commission to meet
the objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-second day of January,
two thousand eight, relating to the Alcohol Beverage Control
Commission (sale of wine, 175 CSR 4), is authorized.
§64-7-2. Insurance Commissioner.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner (guaranteed
loss ratios as applied to individual sickness and accident
insurance policies, 114 CSR 31), is authorized.
(b) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, relating to the Insurance Commissioner (mental health
parity, 114 CSR 64), is authorized.
(c) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner (recognition
of preferred mortality tables for use in determining minimum
reserve liabilities, 114 CSR 69A), is authorized.
(d) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner (replacement
of life insurance policies and annuity contracts, 114 CSR 8), is
authorized.
(e) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (military
sales practices, 114 CSR 82), is authorized.
(f) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner (suitability
in annuity transactions, 114 CSR 11B), is authorized.
(g) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner (life
insurance disclosures, 114 CSR 11A), is authorized.
(h) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (life
insurance illustrations, 114 CSR 11C), with the following
amendment:
On page 17, section 11, by striking section 11 in its entirety
and inserting in lieu thereof the following:
§114-11C-11. Failure to comply.
A violation of paragraphs 5.2 or 5.3, section 5 of this rule
by an insurer constitutes a statement or omission which
misrepresents the benefits, advantages, conditions or terms of a
life insurance policy.
(i) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, relating to the Insurance Commissioner (examiners and
examinations, 114 CSR 15), is authorized.
(j) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, relating to the Insurance Commissioner (licensing and
conduct of insurance producers, agencies and solicitors, 114 CSR
2), is authorized.
(k) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner
(fingerprinting requirements for applications for insurance
producer license, 114 CSR 2A), is authorized.
(l) The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section ten, article two, chapter thirty-three of
this code, modified by the Insurance Commissioner to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the seventh day of December, two
thousand seven, relating to the Insurance Commissioner
(advertisement of life insurance and annuities, 114 CSR 11), is
authorized.
§64-7-3. Lottery Commission.
The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section four, article twenty-two-c, chapter
twenty-nine of this code, modified by the Lottery Commission to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the twenty-sixth day of
December, two thousand seven, relating to the Lottery Commission
(racetrack table games, 179 CSR 8), is authorized with the following amendments:
On page twelve, by striking out subsection 2.65 in its
entirety;
On page fifteen, by striking subsection 3.11 in its entirety
and renumbering the subsequent subsections accordingly;
On page seventeen, by striking out section 179-8-9 in its
entirety and renumbering the subsequent sections accordingly;
And,
On page ninety-four, section one hundred ten, by striking out
the words "section eleven" and inserting in lieu thereof the words
"sections one hundred fourteen through one hundred twenty-six".
§64-7-4. State Tax Department.
The legislative rule filed in the State Register on the
twenty-seventh day of July, two thousand seven, authorized under
the authority of section five-s, article ten, chapter eleven of
this code, modified by the State Tax Department to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twenty-ninth day of December,
two thousand seven, relating to the State Tax Department (exchange
of information agreement between the Commissioner of the Tax
Division of the Department of Revenue and the Commissioner of the
Division of Labor of the Department of Commerce, the Commissioner
of the Insurance Commission of the Department of Revenue, the
Commissioner of the Division of Motor Vehicles of the Department of Transportation, the Commissioner of the Bureau of Employment
Programs and the Office of the Governor, 110 CSR 50D), is
authorized.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 417, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Facemyer, Fanning, Foster,
Green, 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: Edgell and Guills--2.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 417) 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, Facemyer, Fanning, Foster, Green,
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: Edgell and Guills--2.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 417) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 467, Reauthorizing Dam
Safety Rehabilitation Revolving Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page eleven, section fifteen, line fifty-four, by striking
out the word "seventeen" and inserting the word "eighteen";
On page fourteen, section nineteen, lines one through three,
by striking out the words "Under the direction of the department,
the authority shall establish, administer and manage" and inserting
in lieu thereof the words "There is created in the State Treasury";
On page sixteen, section nineteen, line thirty-three, by
striking out the word "may" and inserting in lieu thereof the word "shall";
On page seventeen, section nineteen, line forty-eight, by
striking out the word "may" and inserting in lieu thereof the word
"shall";
And,
On page seventeen, section nineteen, lines fifty-two through
sixty-six, by striking out all of subsection (f) and inserting in
lieu thereof a new subsection (f), to read as follows:
(f) Disbursements from the fund shall be authorized for
payment in writing by the director of the authority or the
director's designee. Moneys in the fund shall not be commingled
with other money of the authority.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 467, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 467) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 481, Authorizing physician
assistants to conduct mental health hygiene process examinations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section two, line sixty-seven, after the word
"worker" by inserting a comma and the words "physician assistant".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 481, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 481) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 535,
Modifying certain penalties for DUI.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §17B-4-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code be amended and reenacted; and that §17C-5A-1, §17C-5A-2, §17C-5A-3
and §17C-5A-3a of said code be amended and reenacted, all to read
as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the
influence of alcohol, controlled substances or
drugs, or while having alcoholic concentration in
the blood of eight hundredths of one percent or
more, by weight, or for refusing to take secondary
chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of
this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended or revoked by this state or any other
jurisdiction is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the second
offense, the person is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a
period of ten days and, in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than five
hundred dollars; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for six months a
period of not less than thirty days nor more than ninety days and
in addition to the mandatory jail sentence, shall be fined not less
than one hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or any combination
thereof, or for driving while having an alcoholic concentration in
his or her blood of eight hundredths of one percent or more, by
weight, or for refusing to take a secondary chemical test of blood
alcohol content, is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be confined in a county or
regional jail for a period of not less than thirty days nor more
than six months and in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than five
hundred dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for a period of not less than six months
nor more than one year and in addition to the mandatory jail
sentence, shall be fined not less than one thousand dollars nor
more than three thousand dollars; for the third or any subsequent
offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for
not less than one year nor more than three years and, in addition
to the mandatory prison sentence, shall be fined not less than
three thousand dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section upon
a charge of driving a vehicle while the license of such that person
was lawfully suspended or revoked, the division shall extend the
period of such the suspension or revocation for an additional
period of one year from and after the date such person would
otherwise have been entitled to apply for a new license. six
months which may be served concurrently with any other suspension
or revocation. Upon receiving a record of the second or subsequent
conviction of any person under subsection (a) of this section upon
a charge of driving a vehicle while the license of such that person
was lawfully suspended or revoked, the division shall extend the
period of such the suspension or revocation for an additional
period of one year from and after the date such person would
otherwise have been entitled to apply for a new license. ninety
days which may be served concurrently with any other suspension or
revocation.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended for driving while under the age of twenty-one years with an alcohol concentration in his or her blood
of two hundredths of one percent or more, by weight, but less than
eight hundredths of one percent, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for twenty-four hours or shall be fined not
less than fifty dollars nor more than five hundred dollars, or
both.
Upon receiving a record of a first or subsequent conviction
under this subsection for a charge of driving a vehicle while the
license of that person was lawfully suspended or revoked, the
division shall extend the period of the suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to the
provisions of article eleven-b, chapter sixty-two of this code may
be used as an alternative sentence to any period of incarceration
required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of any
person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
years nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of any
person within one year next following the act or failure, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not less than ninety days nor more than one year and shall
be fined not less than five hundred dollars nor more than one
thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes bodily injury to
any person other than himself or herself, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than one year, which jail term
is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
up to six months which jail term is to include actual confinement
of not less than twenty-four hours, and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person sentenced pursuant to this subdivision shall receive credit
for any period of actual confinement he or she served upon arrest
for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than six months, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars. A person sentenced pursuant to
this subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) (f) Any person who, being an habitual user of narcotic
drugs or amphetamine or any derivative thereof, drives a vehicle in
this state is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, which jail term is to include actual confinement of not
less than twenty-four hours, and shall be fined not less than one
hundred dollars nor more than five hundred dollars. A person
sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the
subject offense.
(f) (g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(g) (h) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who is an habitual user
of narcotic drugs or amphetamine or any derivative thereof is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not more than six months and shall be fined
not less than one hundred dollars nor more than five hundred
dollars.
(h) (i) Any person under the age of twenty-one years who
drives a vehicle in this state while he or she has an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, for a first offense under this subsection is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four hours and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person who is charged with a first offense under the provisions of
this subsection may move for a continuance of the proceedings, from
time to time, to allow the person to participate in the Motor
Vehicle Alcohol Test and Lock Program as provided in section three-
a, article five-a of this chapter. Upon successful completion of
the program, the court shall dismiss the charge against the person
and expunge the person's record as it relates to the alleged
offense. In the event the person fails to successfully complete
the program, the court shall proceed to an adjudication of the
alleged offense. A motion for a continuance under this subsection
may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the
provisions of this subsection or subsection (a), (b), (c), (d),
(e), (f), (g) or (h) of this section may not also be charged with
an offense under this subsection arising out of the same
transaction or occurrence.
(i) (j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so while driving has on or within the
motor vehicle one or more other persons who are unemancipated
minors who have not reached their sixteenth birthday is guilty of
a misdemeanor and, upon conviction thereof, shall be confined in
jail for not less than two days nor more than twelve months, which
jail term is to include actual confinement of not less than forty-
eight hours and shall be fined not less than two hundred dollars
nor more than one thousand dollars.
(j) (k) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) of this section, for the second
offense under this section, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than six
months nor more than one year and the court may, in its discretion,
impose a fine of not less than one thousand dollars nor more than
three thousand dollars.
(k) (l) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) of this section, for the third or
any subsequent offense under this section, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand
dollars.
(l) (m) For purposes of subsections (j) and (k) and (l) of
this section relating to second, third and subsequent offenses, the
following types of convictions are to be regarded as convictions
under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), or (f) or (g) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f), or (g) or (h)
of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) (n) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(n) (o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), or (e) or (f) of this section, or
any person permitted to drive as described under subsection (f) or
(g) or (h) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug does not constitute a
defense against any charge of violating subsection (a), (b), (c),
(d), (e), (f), or (g) or (h) of this section.
(o) (p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) (q) The sentences provided herein in this section upon
conviction for a violation of this article are mandatory and may
not be are not subject to suspension or probation: Provided, That
the court may apply the provisions of article eleven-a, chapter
sixty-two of this code to a person sentenced or committed to a term
of one year or less for a first offense under this section. An
order for home detention by the court pursuant to the provisions of
article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section
for a first or subsequent offense: Provided, however, That for any period of home incarceration ordered for a person convicted of
second offense under this section, electronic monitoring shall be
required for no fewer than five days of the total period of home
confinement ordered and the offender may not leave home for those
five days notwithstanding the provisions of section five, article
eleven-b, chapter sixty-two of this code: Provided further, That
for any period of home incarceration ordered for a person convicted
of a third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested is
incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given: Provided, That prior to such the
refusal, the person is given an oral warning and a written
statement advising him or her that his or her refusal to submit to
the secondary test finally designated will result in the revocation
of his or her license to operate a motor vehicle in this state for
a period of at least forty-five days and up to life; If a person
initially refuses to submit to the designated secondary chemical test after being informed in writing of the consequences of such
refusal, he shall be informed orally and in writing that after
fifteen minutes said and that after fifteen minutes following the
warnings the refusal shall be deemed to be is considered final. and
the The arresting officer shall after said that period of time
expires have has no further duty to provide the person with an
opportunity to take the secondary test. The officer shall, within
forty-eight hours of such the refusal, sign and submit to the
Commissioner of Motor Vehicles a written statement of the officer
that: (1) He or she had reasonable grounds to believe such the
person had been driving a motor vehicle in this state while under
the influence of alcohol, controlled substances or drugs; (2) such
the person was lawfully placed under arrest for an offense relating
to driving a motor vehicle in this state while under the influence
of alcohol, controlled substances or drugs; (3) such the person
refused to submit to the secondary chemical test finally designated
in the manner provided in section four of this article; and (4)
such the person was given a written statement advising him or her
that his or her license to operate a motor vehicle in this state
would be revoked for a period of at least one year forty-five days
and up to life if he or she refused to submit to the secondary test
finally designated in the manner provided in section four of this
article. The signing of the statement required to be signed by
this section shall constitute constitutes an oath or affirmation by the person signing such the statement that the statements contained
therein in the statement are true and that any copy filed is a true
copy. Such The statement shall contain upon its face a warning to
the officer signing that to willfully sign a statement containing
false information concerning any matter or thing, material or not
material, is false swearing and is a misdemeanor. Upon receiving
the statement the commissioner shall make and enter an order
revoking such the person's license to operate a motor vehicle in
this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking such the person's license to operate a motor vehicle in
this state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter: Provided, That a person
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Alcohol Test and Lock
Program. The application for participation in the Motor Vehicle
Alcohol Test and Lock Program shall be considered to be a waiver of
the hearing provided in section two of said article. If the
commissioner has previously revoked the person's license under the
provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter an order revoking such the person's license to operate a motor
vehicle in this state for a period of ten years: Provided, That
the license may be reissued in five years in accordance with the
provisions of section three, article five-a of this chapter. If
the commissioner has previously revoked the person's license more
than once under the provisions of this section, the commissioner
shall, for the refusal to submit to the designated secondary
chemical test, make and enter an order revoking such the person's
license to operate a motor vehicle in this state for a period of
life: Provided, That the license may be reissued in ten years in
accordance with the provisions of section three, article five-a of
this chapter. A copy of each such order shall be forwarded to such
the person by registered or certified mail, return receipt
requested, and shall contain the reasons for the revocation and
shall specify the revocation period imposed pursuant to this
section. No such A revocation shall not become effective until ten
days after receipt of the copy of such the order. Any person who
is unconscious or who is otherwise in a condition rendering him or
her incapable of refusal shall be deemed considered not to have
withdrawn his or her consent for a test of his or her blood, breath
or urine as provided in section four of this article and the test
may be administered although such the person is not informed that
his or her failure to submit to the test will result in the
revocation of his or her license to operate a motor vehicle in this state for the period provided for in this section.
A revocation hereunder under this section shall run
concurrently with the period of any suspension or revocation
imposed in accordance with other provisions of this code and
growing out of the same incident which gave rise to the arrest for
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs and the subsequent refusal to
undergo the test finally designated in accordance with the
provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two of this
article for conduct which occurred on or after the tenth day of
June tenth, one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter for conduct which occurred on or
after the tenth day of June tenth, one thousand nine hundred
eighty-three.
(c) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1. Implied consent to administrative procedure;
revocation for driving under the influence of
alcohol, controlled substances or drugs or
refusal to submit to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be revoked
because he or she did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or combined
influence of alcohol or controlled substances or drugs, or did
drive a motor vehicle while having an alcohol concentration in his
or her blood of eight hundredths of one percent or more, by weight,
or did refuse to submit to any designated secondary chemical test
required under the provisions of article five of this chapter or
did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than eight hundredths
of one percent, by weight.
(b) Any law-enforcement officer arresting investigating a
person for an offense described in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said section
shall report to the Commissioner of the Division of Motor Vehicles
by written statement within forty-eight hours of the arrest
conclusion of the investigation the name and address of the person
so arrested believed to have committed the offense. The report
shall include the specific offense with which the person is charged
and, if applicable, a copy of the results of any secondary tests of
blood, breath or urine. The signing of the statement required to
be signed by this subsection shall constitute constitutes an oath
or affirmation by the person signing the statement that the
statements contained therein in the statement are true and that any
copy filed is a true copy. The statement shall contain upon its
face a warning to the officer signing that to willfully sign a
statement containing false information concerning any matter or
thing, material or not material, is false swearing and is a
misdemeanor.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this section, the commissioner shall determine determines that a person
was arrested for committed an offense described in section two,
article five of this chapter or for an offense described in a
municipal ordinance which has the same elements as an offense
described in said section and that the results of any secondary
test or tests indicate that at the time the test or tests were
administered the person had, in his or her blood, an alcohol
concentration of eight hundredths of one percent or more, by
weight, or at the time the person was arrested committed the
offense he or she was under the influence of alcohol, controlled
substances or drugs, the commissioner shall make and enter an order
revoking or suspending the person's license to operate a motor
vehicle in this state. If the results of the tests indicate that
at the time the test or tests were administered the person was
under the age of twenty-one years and had an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
the commissioner shall make and enter an order suspending the
person's license to operate a motor vehicle in this state. A copy
of the order shall be forwarded to the person by registered or
certified mail, return receipt requested, and shall contain the
reasons for the revocation or suspension and describe the
applicable revocation or suspension periods provided for in section
two of this article. No A revocation or suspension shall not become effective until ten days after receipt of a copy of the
order.
(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this chapter
who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or
her blood of two hundredths of one percent or more, by weight, or
that the act of the child in driving the motor vehicle was such
that it would provide grounds for arrest for an offense defined
under the provisions of section two of said article if the child
were an adult, shall report to the Commissioner of the Division of
Motor Vehicles by written statement within forty-eight hours the
name and address of the child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult and a copy of the results of any
secondary tests of blood, breath or urine. The signing of the
statement required to br signed by this subsection shall constitute
constitutes an oath or affirmation by the person signing such the
statement that the statements contained therein in the statement
are true and that any copy filed is a true copy. Such The
statement shall contain upon its face a warning to the officer
signing that to willfully sign a statement containing false
information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this section,
if the commissioner determines that the results of the test
indicate that at the time the test or tests were administered the
child had, in his or her blood, an alcohol concentration of two
hundredths of one percent or more, by weight, but also determines
that the act of the child in driving the motor vehicle was not such
that it would provide grounds for arrest for an offense defined
under the provisions of subsection (a), (b), (c), (d), (e), (f), or
(g) or (h), section two, article five of this chapter if the child
were an adult, the commissioner shall make and enter an order
suspending the child's license to operate a motor vehicle in this
state. If the commissioner determines that the act of the child in
driving the motor vehicle was such that it would provide grounds
for arrest for an offense defined under the provisions of
subsection (a), (b), (c), (d), (e), (f), or (g) or (h), section
two, article five of this chapter if the child were an adult, the
commissioner shall make and enter an order revoking the child's
license to operate a motor vehicle in this state. A copy of such
the order shall be forwarded to the child by registered or
certified mail, return receipt requested, and shall contain the
reasons for the suspension or revocation and describe the
applicable suspension or revocation periods provided for in section two of this article. No A suspension or revocation shall not
become effective until ten days after receipt of a copy of such the
order.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
under the provisions of section one of this article or section
seven, article five of this chapter, the Commissioner of the
Division of Motor Vehicles shall stay the imposition of the period
of revocation or suspension and afford the person an opportunity to
be heard. The written request must be filed with the commissioner
in person or by registered or certified mail, return receipt
requested, within thirty calendar days after receipt of a copy of
the order of revocation or suspension or no hearing will be
granted. The hearing shall be before the commissioner or a hearing
examiner retained by the commissioner who shall rule on evidentiary
issues and submit proposed findings of fact and conclusions of law
for the consideration of the commissioner and all of the pertinent
provisions of article five, chapter twenty-nine-a of this code
shall apply. The commissioner may reject or modify the hearing
examiner's proposed findings of fact and conclusions of law, in
writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division
located in or near the county wherein in which the arrest was made
in this state or at some other suitable place in the county wherein
in which the arrest was made if an office of the division is not
available.
(b) (c) Any such hearing shall be held within one hundred
eighty days after the date upon which the commissioner received the
timely written request therefor for a hearing unless there is a
postponement or continuance. The commissioner may postpone or
continue any hearing on the commissioner's own motion or upon
application for each person for good cause shown. The commissioner
shall adopt and implement by a procedural rule written policies
governing the postponement or continuance of any such hearing on
the commissioner's own motion or for the benefit of any law-
enforcement officer or any person requesting the hearing and such
the policies shall be enforced and applied to all parties equally.
For the purpose of conducting the hearing, the commissioner shall
have the power and authority to may issue subpoenas and subpoenas
duces tecum in accordance with the provisions of section one,
article five, chapter twenty-nine-a of this code: Provided, That
the notice of hearing to the appropriate law-enforcement officers by registered or certified mail, return receipt requested, shall
constitute constitutes a subpoena to appear at the hearing without
the necessity of payment of fees by the Division of Motor Vehicles.
(c) (d) Any investigating officer who submits a statement
pursuant to section one of this article that results in a hearing
pursuant to this section shall not attend the hearing on the
subject of that affidavit unless requested to do so by the party
whose license is at issue in that hearing or by the commissioner.
The hearing request form shall clearly and concisely inform a
person seeking a hearing of the fact that the investigating officer
will only attend the hearing if requested to do so and provide for
a box to be checked requesting the investigating officer's
attendance. The language shall appear prominently on the hearing
request form. The Division of Motor Vehicles is solely responsible
for causing the attendance of the investigating officers. Law-
enforcement officers shall be compensated for the time expended in
their travel and appearance before the commissioner by the law-
enforcement agency by whom they are employed at their regular rate
if they are scheduled to be on duty during said time or at their
regular overtime rate if they are scheduled to be off duty during
said time. If the party whose license is at issue does not request
the investigating officer to attend the hearing, the commissioner
shall consider the written statement, test results and any other
information submitted by the investigating officer pursuant to section one of this article in that officer's absence.
(d) (e) The principal question at the hearing shall be whether
the person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or did
refuse to submit to the designated secondary chemical test, or did
drive a motor vehicle while under the age of twenty-one years with
an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than eight hundredths of
one percent, by weight.
The commissioner may propose a legislative rule in compliance
with the provisions of article three, chapter twenty-nine-a of this
code which rule may provide that if a person accused of driving a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or accused of driving a motor vehicle while
having an alcohol concentration in the person's blood of eight
hundredths of one percent or more, by weight, or accused of driving
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, intends to challenge the results of any
secondary chemical test of blood, breath or urine under section
seven, article five of this chapter, or intends to cross-examine the individual or individuals who administered the test or
performed the chemical analysis, the person shall, within an
appropriate period of time prior to the hearing, notify the
commissioner in writing of such his or her intention. The rule may
provide that when there is a failure to comply with the notice
requirement, the results of the secondary test, if any, shall be
admissible as though the person and the commissioner had stipulated
the admissibility of such the evidence. Any such rule shall
provide that the rule shall not be invoked in the case of a person
who is not represented by counsel unless the communication from the
commissioner to the person establishing a time and place for the
hearing also informed the person of the consequences of the
person's failure to timely notify the commissioner of the person's
intention to challenge the results of the secondary chemical test
or cross-examine the individual or individuals who administered the
test or performed the chemical analysis.
(e) (f) In the case of a hearing wherein in which a person is
accused of driving a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or accused of driving a
motor vehicle while having an alcohol concentration in the person's
blood of eight hundredths of one percent or more, by weight, or
accused of driving a motor vehicle while under the age of twenty-
one years with an alcohol concentration in his or her blood of two
hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make
specific findings as to: (1) Whether the arresting investigating
law-enforcement officer had reasonable grounds to believe the
person to have been driving while under the influence of alcohol,
controlled substances or drugs, or while having an alcohol
concentration in the person's blood of eight hundredths of one
percent or more, by weight, or to have been driving a motor vehicle
while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight; (2) whether the person was lawfully placed under arrest
for committed an offense involving driving under the influence of
alcohol, controlled substances or drugs, or was lawfully taken into
custody for the purpose of administering a secondary test; and (3)
whether the tests, if any, were administered in accordance with the
provisions of this article and article five of this chapter.
(f) (g) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or did drive a motor vehicle while
under the age of twenty-one years with an alcohol concentration in
his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight, the commissioner also finds by a preponderance of the evidence that
the person when so driving did an act forbidden by law or failed to
perform a duty imposed by law, which act or failure proximately
caused the death of a person and was committed in reckless
disregard of the safety of others and if the commissioner further
finds that the influence of alcohol, controlled substances or drugs
or the alcohol concentration in the blood was a contributing cause
to the death, the commissioner shall revoke the person's license
for a period of ten years: Provided, That if the commissioner has
previously suspended or revoked the person's license under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(g) (h) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person, the
commissioner shall revoke the person's license for a period of five
years: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(h) (i) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused bodily injury to a person
other than himself or herself, the commissioner shall revoke the
person's license for a period of two years: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) (j) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight hundredths of one percent or more, by
weight, or finds that the person, being an habitual user of
narcotic drugs or amphetamine or any derivative thereof, did drive
a motor vehicle, but less than fifteen hundredths of one percent or
more, by weight, or finds that the person knowingly permitted the
person's vehicle to be driven by another person who was under the
influence of alcohol, controlled substances or drugs, or knowingly
permitted the person's vehicle to be driven by another person who
had an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight the commissioner shall
revoke the person's license for a period of six months or a period
of fifteen days with an additional one hundred twenty days of
participation in the Motor Vehicle Alcohol Test and Lock Program in
accordance with the provisions of section three-a of this article:
Provided, That a person whose license is revoked for driving while
under the influence of drugs is not eligible to participate in the
Motor Vehicle Alcohol Test and Lock Program: Provided, however,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be ten years:
Provided, however further, That if the commissioner has previously suspended or revoked the person's license more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the
commissioner also finds by a preponderance of the evidence that the
person did drive a motor vehicle while having an alcohol
concentration in the person's blood of fifteen hundredths of one
percent or more, by weight, the commissioner shall revoke the
person's license for a period of forty-five days with an additional
two hundred seventy days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of
section three-a of this article: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the
alcohol test and lock device may be installed or is otherwise
incapable of participating in the Motor Vehicle Alcohol Test and
Lock Program, the period of revocation shall be one hundred eighty
days: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this
section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years: Provided, however, That if the commissioner
has previously suspended or revoked the person's license more than
once under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(j) (l) If, in addition to a finding that the person did drive
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused the death of a person, and if the commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the death, the commissioner shall
revoke the person's license for a period of five years: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be for the life of
the person.
(k) (m) If, in addition to a finding that the person did drive
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused bodily injury to a person other
than himself or herself, and if the commissioner further finds that
the alcohol concentration in the blood was a contributing cause to
the bodily injury, the commissioner shall revoke the person's
license for a period of two years: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(l) (n) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
age of twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but less
than eight hundredths of one percent, by weight, the commissioner
shall suspend the person's license for a period of sixty days:
Provided, That if the commissioner has previously suspended or
revoked the person's license under the provisions of this section
or section one of this article, the period of revocation shall be
for one year, or until the person's twenty-first birthday,
whichever period is longer.
(m) (o) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
have on or within the motor vehicle another person who has not
reached his or her sixteenth birthday, the commissioner shall revoke the person's license for a period of one year: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be ten years:
Provided, however, That if the commissioner has previously
suspended or revoked the person's license more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(n) (p) For purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two, article five
of this chapter for conduct which occurred within the ten years
immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven,
article five of this chapter for conduct which occurred within the
ten years immediately preceding the date of arrest.
(o) (q) In the case of a hearing wherein in which a person is
accused of refusing to submit to a designated secondary test, the
commissioner shall make specific findings as to: (1) Whether the
arresting law-enforcement officer had reasonable grounds to believe
the person had been driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (2)
whether the person was lawfully placed under arrest for committed
an offense relating to driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (3)
whether the person refused to submit to the secondary test finally
designated in the manner provided in section four, article five of
this chapter; and (4) whether the person had been given a written
statement advising the person that the person's license to operate
a motor vehicle in this state would be revoked for at least one
year forty-five days and up to life if the person refused to submit
to the test finally designated in the manner provided in said
section.
(p) (r) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement investigating
officer had reasonable grounds to believe the person had been
driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) the person was
lawfully placed under arrest for committed an offense relating to
driving a motor vehicle in this state while under the influence of
alcohol, controlled substances or drugs; (3) the person refused to
submit to the secondary chemical test finally designated; and (4)
the person had been given a written statement advising the person
that the person's license to operate a motor vehicle in this state
would be revoked for a period of at least one year forty-five days
and up to life if the person refused to submit to the test finally
designated, the commissioner shall revoke the person's license to
operate a motor vehicle in this state for the periods specified in
section seven, article five of this chapter. The revocation period
prescribed in this subsection shall run concurrently with any other
revocation period ordered under this section or section one of this
article arising out of the same occurrence.
(q) (s) If the commissioner finds to the contrary with respect
to the above issues the commissioner shall rescind his or her
earlier order of revocation or shall reduce the order of revocation
to the appropriate period of revocation under this section or
section seven, article five of this chapter. A copy of the
commissioner's order made and entered following the hearing shall
be served upon the person by registered or certified mail, return
receipt requested. During the pendency of any such hearing, the
revocation of the person's license to operate a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation, the
person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay
enforcement of the order. The court may grant a stay or supersede
as of the order only upon motion and hearing, and a finding by the
court upon the evidence presented, that there is a substantial
probability that the appellant shall prevail upon the merits and
the appellant will suffer irreparable harm if the order is not
stayed: Provided, That in no event shall the stay or supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the file or the transcript of the hearing to the circuit court in
less than sixty days.
(r) (t) In any revocation or suspension pursuant to this
section, if the driver whose license is revoked or suspended had
not reached the driver's eighteenth birthday at the time of the
conduct for which the license is revoked or suspended, the driver's
license shall be revoked or suspended until the driver's eighteenth
birthday or the applicable statutory period of revocation or
suspension prescribed by this section, whichever is longer.
(s) (u) Funds for this section's hearing and appeal process may be provided from the Drunk Driving Prevention Fund, as created
by section forty-one, article two, chapter fifteen of this code,
upon application for such the funds to the Commission on Drunk
Driving Prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Division of Motor Vehicles, in cooperation with the
Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code establishing a comprehensive safety and
treatment program for persons whose licenses have been revoked
under the provisions of this article or section seven, article five
of this chapter or subsection (6), section five, article three,
chapter seventeen-b of this code and shall likewise also establish
the minimum qualifications for mental health facilities or other
public agencies or private entities conducting the safety and
treatment program: Provided, That the commissioner Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse,
may establish standards whereby the division will accept or approve
participation by violators in another treatment program which
provides the same or substantially similar benefits as the safety
and treatment program established pursuant to this section.
(b) The program shall include, but not be limited to,
treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs
as they relate to driving, defensive driving or other safety
driving instruction and other programs designed to properly
educate, train and rehabilitate the offender.
(b) (c) (1) The Division of Motor Vehicles, in cooperation
with the Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational and treatment program for each person whose license has
been revoked under the provisions of this article or section seven,
article five of this chapter or subsection (6), section five,
article three, chapter seventeen-b of this code which shall contain
the following: (A) A listing and evaluation of the offender's
prior traffic record; (B) the characteristics and history of
alcohol or drug use, if any; (C) his or her amenability to
rehabilitation through the alcohol safety program; and (D) a
recommendation as to treatment or rehabilitation and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment. The cost of the program shall be paid
out of fees established by the Commissioner of Motor Vehicles in
cooperation with the Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse. The program provider shall
collect the established fee from each participant upon enrollment.
The program provider shall also at the time of enrollment remit to the commissioner a portion of the collected fee established by the
commissioner in cooperation with the Department of Health and Human
Resources, which shall be deposited into an account designated the
Driver's Rehabilitation Fund: Provided, That on and after the
first day of July, two thousand seven, any unexpended balance
remaining in the driver's rehabilitation fund shall be transferred
to the Motor Vehicle Fees Fund created under the provisions of
section twenty-one, article two, chapter seventeen-a of this code
and all further fees collected shall be deposited in that fund.
(2) The Department of Health and Human Resources shall
establish a fee by legislative rule proposed pursuant to article
three, chapter twenty-nine-a of this code to be collected from each
offender enrolled in the safety and treatment program. The program
provider shall collect the established fee from each participant
upon enrollment unless the department has determined that the
participant is an indigent based upon criteria established pursuant
to subdivision (3) of this subsection. The Department of Health
and Human Resources shall reimburse enrollment fees to program
providers for each eligible indigent offenders.
(3) The Department of Health and Human Resources shall
establish by legislative rule, proposed pursuant to article three,
chapter twenty-nine-a of this code, criteria to determine the
eligibility for the payment of safety and treatment services for
indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment for safety and training services for eligible
offenders.
(4) On or before the fifteenth day of January of each year,
the Secretary of the Department of Health and Human Resources shall
report to the Legislature on:
(A) The total number of offenders participating in the safety
and treatment program during the prior year;
(B) The total number of indigent offenders participating in
the safety and treatment program during the prior year;
(C) The total number of program providers during the prior
year; and
(D) The total amount of reimbursements paid to program
provider during the prior year.
(2) (5) The commissioner after giving due consideration to the
program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate
a motor vehicle in this state revoked under this article or section
seven, article five of this chapter or subsection (6), section
five, article three, chapter seventeen-b of this code which shall
include successful completion of the educational, treatment or
rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a revocation
hearing have been paid;
(B) When the period of revocation is for a period of years one
year or for more than a year, the license to operate a motor
vehicle in this state shall not be reissued until: (i) At least
one half of such the time period has elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) The offender has successfully completed the
program; (iii) All costs of the program and administration have
been paid; and (iv) All costs assessed as a result of a revocation
hearing have been paid. Notwithstanding any provision in this
code, a person whose license is revoked for refusing to take a
chemical test as required by section seven, article five of this
chapter for a first offense is not eligible to reduce the
revocation period by completing the safety and treatment program.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this state shall not be reissued until:
(i) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in
effect; (ii) the offender has successfully completed the program;
(iii) all costs of the program and administration have been paid;
and (iv) all costs assessed as a result of a revocation hearing
have been paid.
(D) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private
entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program shall only have to certify that such the person
has successfully completed the program.
(c) (d) (1) The Division of Motor Vehicles, in cooperation
with the Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational program for each person whose license has been
suspended for sixty days pursuant to the provisions of subsection
(l) (n), section two, article five-a of this chapter. The
educational program shall consist of not less than twelve nor more
than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered,
the license to operate a motor vehicle shall not be reinstated
until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and
administration have been paid; and (D) all costs assessed as a
result of a suspension hearing have been paid.
(d) (e) A required component of the rehabilitation program
provided for in subsection (b) of this section and the education
program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program
providing a forum for victims of alcohol and drug-related offenses
and offenders to share first-hand experiences on the impact of
alcohol- and drug-related offenses in their lives. The
commissioner Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall propose legislative rules for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code to and implement a plan for victim impact
panels where appropriate numbers of victims are available and
willing to participate and shall establish guidelines for other
innovative programs which may be substituted where such the victims
are not available so as to assist persons whose licenses have been
suspended or revoked for alcohol and drug-related offenses to gain
a full understanding of the severity of their offenses in terms of
the impact of such the offenses on victims and offenders. The
legislative rules proposed for promulgation by the commissioner
plan shall require, at a minimum, discussion and consideration of
the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug-related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall
contain provisions which The Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse, shall ensure that
any meetings between victims and offenders shall be
nonconfrontational and ensure the physical safety of the persons
involved.
§17C-5A-3a. Establishment of and participation in the Motor
Vehicle Alcohol Test and Lock Program.
(a) (1) The Division of Motor Vehicles shall control and
regulate a Motor Vehicle Alcohol Test and Lock Program for persons
whose licenses have been revoked pursuant to this article or the
provisions of article five of this chapter or have been convicted
under section two, article five of this chapter.
(2) The program shall include the establishment of a users fee
for persons participating in the program which shall be paid in
advance and deposited into the Driver's Rehabilitation Fund: Provided, That on and after the first day of July, two thousand
seven, any unexpended balance remaining in the Driver's
Rehabilitation Fund shall be transferred to the Motor Vehicle Fees
Fund created under the provisions of section twenty-one, article
two, chapter seventeen-a of this code and all further fees
collected shall be deposited in that fund.
(3) Except where specified otherwise, the use of the term
"program" in this section refers to the Motor Vehicle Alcohol Test
and Lock Program. The Commissioner of the Division of Motor
Vehicles shall propose legislative rules for promulgation in
accordance with the provisions of chapter twenty-nine-a of this
code for the purpose of implementing the provisions of this
section. The rules shall also prescribe those requirements which,
in addition to the requirements specified by this section for
eligibility to participate in the program, the commissioner
determines must be met to obtain the commissioner's approval to
operate a motor vehicle equipped with a motor vehicle alcohol test
and lock system.
(4) For purposes of this section, a "motor vehicle alcohol
test and lock system" means a mechanical or computerized system
which, in the opinion of the commissioner, prevents the operation
of a motor vehicle when, through the system's assessment of the
blood alcohol content of the person operating or attempting to
operate the vehicle, the person is determined to be under the influence of alcohol.
(5) The commissioner shall establish by legislative rule,
proposed pursuant to article three, chapter twenty-nine-a of this
code, criteria to determine the eligibility for the payment of the
installation of ignition interlock devices in the vehicles of
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment of installations for eligible offenders.
(6) On or before the fifteenth day of January of each year,
the Commissioner of the Division of Motor Vehicles shall report to
the Legislature on:
(A) The total number of offenders participating in the program
during the prior year;
(B) The total number of indigent offenders participating in
the program during the prior year;
(C) The terms of any contracts with the providers of ignition
interlock devices; and
(D) The total cost of the program to the state during the
prior year.
(b) (1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this
chapter is eligible to participate in the program when the person's minimum revocation period as specified by subsection (c) of this
section has expired and the person is enrolled in or has
successfully completed the safety and treatment program or presents
proof to the commissioner within sixty days of receiving approval
to participate by the commissioner that he or she is enrolled in a
safety and treatment program: Provided, That anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and the person is enrolled in or has
successfully completed the safety and treatment program or presents
proof to the commissioner within sixty days of receiving approval
to participate by the commissioner that he or she is enrolled in a
safety and treatment program.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l) (n), section two of this article
for driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than eight hundredths
of one percent, by weight, is eligible to participate in the
program after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in
effect: Provided, That in the case of a person under the age of
eighteen, the person is eligible to participate in the program after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in effect
or after the person's eighteenth birthday, whichever is later.
Before the commissioner approves a person to operate a motor
vehicle equipped with a motor vehicle alcohol test and lock system,
the person must agree to comply with the following conditions:
(A) If not already enrolled, the person will shall enroll in
and complete the educational program provided for in subsection (c)
(d), section three of this article at the earliest time that
placement in the educational program is available, unless good
cause is demonstrated to the commissioner as to why placement
should be postponed;
(B) The person will shall pay all costs of the educational
program, any administrative costs and all costs assessed for any
suspension hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no a person eligible to participate in the program under
this subsection may not operate a motor vehicle unless approved to
do so by the commissioner.
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in subsection
(d) or (f) (g), section two, article five of this chapter or
pursuant to subsection (i) (j), section two of this article, the
minimum period of revocation for participation in the test and lock
program is thirty fifteen days and the minimum period for the use
of the ignition interlock device is five months one hundred twenty-
five days;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter
refusal to submit to a designated secondary chemical test, the
minimum period of revocation for participation in the test and lock
program is thirty forty-five days and the minimum period for the
use of the ignition interlock device is nine months one year;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of
an offense defined in subsection (e), section two, article five of
this chapter or pursuant to subsection (j), section two of this
article, the minimum period of revocation for participation in the
test and lock program is forty-five days and the minimum period for
the use of the ignition interlock device is two hundred seventy
days;
(3) (4) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection
(f), section two of this article, the minimum period of revocation
before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device is two years;
(4) (5) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (b),
section two, article five of this chapter or pursuant to subsection
(g), section two of this article, the minimum period of revocation
is six months and the minimum period for the use of the ignition
interlock device is two years;
(5) (6) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (c),
section two, article five of this chapter or pursuant to subsection
(h), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is one year;
(6) (7) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (i) (j),
section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is
convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or his or her license was revoked under
any provision cited in this subsection within the past ten years.
The minimum revocation period for a person required to participate
in the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection (l) (n), section
two of this article or subsection (h) (i), section two, article
five of this chapter is two months and the minimum period of
participation is one year. The division shall add an additional
two months to the minimum period for the use of the ignition
interlock device if the offense was committed while a minor was in
the vehicle. The division shall add an additional six months to
the minimum period for the use of the ignition interlock device if
a person other than the driver received injuries. The division
shall add an additional two years to the minimum period for the use of the ignition interlock device if a person other than the driver
is injured and the injuries result in that person's death. The
division will shall add one year to the minimum period for the use
of the ignition interlock device for each additional previous
conviction or revocation within the past ten years. Any person
required to participate under this subsection must have an ignition
interlock device installed on every vehicle he or she owns or
operates.
(e) Notwithstanding any other provision in this code, a person
whose license is revoked for driving under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test
and Lock Program.
(e) (f) An applicant for the test and lock program may not
have been convicted of any violation of section three, article
four, chapter seventeen-b of this code for driving while the
applicant's driver's license was suspended or revoked within the
six-month period preceding the date of application for admission to
the test and lock program unless such is necessary for employment
purposes.
(f) (g) Upon permitting an eligible person to participate in
the program, the commissioner shall issue to the person, and the
person is required to exhibit on demand, a driver's license which
shall reflect that the person is restricted to the operation of a
motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(g) (h) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(h) (i) A person whose license has been suspended pursuant to
the provisions of subsection (l) (n), section two of this article
who has completed the educational program and who has not violated
the terms required by the commissioner of the person's
participation in the program is entitled to the reinstatement of
his or her driver's license six months from the date the person is
permitted to operate a motor vehicle by the commissioner. When a
license has been reinstated pursuant to this subsection, the
records ordering the suspension, records of any administrative
hearing, records of any blood alcohol test results and all other
records pertaining to the suspension shall be expunged by operation
of law: Provided, That a person is entitled to expungement under
the provisions of this subsection only once. The expungement shall
be accomplished by physically marking the records to show that the
records have been expunged and by securely sealing and filing the
records. Expungement has the legal effect as if the suspension
never occurred. The records may not be disclosed or made available for inspection and in response to a request for record information,
the commissioner shall reply that no information is available.
Information from the file may be used by the commissioner for
research and statistical purposes so long as the use of the
information does not divulge the identity of the person.
(i) (j) In addition to any other penalty imposed by this code,
any person who operates a motor vehicle not equipped with an
approved motor vehicle alcohol test and lock system during such
that person's participation in the Motor Vehicle Alcohol Test and
Lock Program is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for a
period not less than one month nor more than six months and fined
not less than one hundred dollars nor more than five hundred
dollars. Any person who attempts to bypass the alcohol test and
lock system is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail not more
than six months and fined not less than one hundred dollars nor
more than one thousand dollars: Provided, That notwithstanding any
provision of this code to the contrary, a person enrolled and
participating in the test and lock program may operate a motor
vehicle solely at his or her job site if such the operation is a
condition of his or her employment. For the purpose of this
section, job site does not include any street or highway open to
the use of the public for purposes of vehicular traffic.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 535--A Bill
to amend and reenact §17B-4-3 of the Code of West Virginia, 1931,
as amended; to amend and reenact §17C-5-2 and §17C-5-7 of said
code; and to amend and reenact §17C-5A-1, §17C-5A-2, §17C-5A-3 and
§17C-5A-3a of said code, all relating to modifications to
administrative and criminal penalties for driving a motor vehicle
under the influence of alcohol and/or drugs; reducing the criminal
and administrative sanctions for driving a vehicle with a lawfully
suspended or revoked license; providing for concurrent sentences
for driving a vehicle with a lawfully suspended or revoked license;
removing the mandatory 24-hour incarceration for first offense
driving under the influence; creating an aggravated offense of
driving with a blood alcohol concentration of fifteen hundredths of
one percent or more, by weight; permitting participation in the
Motor Vehicle Alcohol Test and Lock Program for first offense
driving under the influence; process for rejecting or modifying
hearing examiner's proposed findings; law-enforcement officers
excused from hearings unless presence is requested by party whose
license is at issue; adoption of law-enforcement affidavit if
officer does not attend hearing; mandating participation in the
Motor Vehicle Alcohol Test and Lock Program for first offense driving under the influence; providing enhanced administrative
sanctions for persons operating a motor vehicle with a blood
alcohol concentration of fifteen hundredths of one percent or more,
by weight; making certain technical changes to administrative
procedures; transferring primary authority of the Safety and
Treatment Program to the Department of Health and Human Resources;
providing for removal of the Driver's Rehabilitation Fund from the
jurisdiction of the Division of Motor Vehicles and placing it under
the jurisdiction of the Secretary of the Department of Health and
Human Resources; requiring Department of Health and Human Resources
to propose legislative rules; providing that a person whose
driver's license is revoked for refusing to take a secondary
chemical test is not eligible to reduce the revocation period by
completing the Safety and Treatment Program; removing requirement
that victim impact panels be implemented pursuant to legislative
rules; requiring the Commissioner of the Department of Motor
Vehicles to propose legislative rules; reducing the minimum period
of revocation for participation in the test and lock program;
increasing minimum periods of participation in the ignition
interlock device for aggravating offenses; and denying
participation in the Motor Vehicle Alcohol Test and Lock Program
for persons whose driver's license is revoked for driving under the
influence of drugs.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 535, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 535) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 564, Relating to higher education tuition and fee waivers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-19-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18B-10-1, §18B-10-5, §18B-10-6
and §18B-10-7 of said code be amended and reenacted, all to read as
follows:
CHAPTER 18. EDUCATION.
ARTICLE 19. EDUCATIONAL OPPORTUNITIES FOR SPOUSES AND CHILDREN OF
DECEASED SOLDIERS, SAILORS, MARINES AND AIRMEN.
§18-19-2. Eligibility of applicant for benefits; application
forms; preference.
(a) To be eligible for the benefits of this article, a child
or spouse set forth in section one of this article shall be meet
the following conditions:
(1) At In the case of a child, is at least sixteen and not
more than twenty-five years of age;
(2) Enrolled Is enrolled in a post-secondary education or
training institution in this state; and
(3) The Is the child or spouse of an enlistee who designated West Virginia as his or her state of record.
(b) The application shall be made to, and upon forms provided
by, the West Virginia Division of Veterans' Affairs. The division
shall determine the eligibility of those who apply and the yearly
amount to be allotted each applicant. The amount, in the
discretion of the division, may vary from year to year, but may not
exceed the sum of one thousand dollars in any one semester or a
total of two thousand dollars in any one year. In selecting those
to receive the benefits of this article, preference shall be given
those who are otherwise financially unable to secure the
educational opportunities.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education
institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for
each school term for the different classes or categories of
students enrolling at each state institution of higher education
under its jurisdiction and may include among the tuition and fees
any one or more of the following as defined in section one-b of
this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue
account for each of the following classifications of fees:
(1) All tuition and required educational and general fees
collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees
collected to support existing systemwide and institutional debt
service and future systemwide and institutional debt service,
capital projects and campus renewal for educational and general
facilities.
(4) Subject to any covenants or restrictions imposed with
respect to revenue bonds payable from such the accounts, an
institution may expend funds from each such special revenue account
for any purpose for which funds were collected within that account
regardless of the original purpose for which the funds were
collected.
(c) The purposes for which tuition and fees may be expended
include, but are not limited to, health services, student
activities, recreational, athletic and extracurricular activities.
Additionally, tuition and fees may be used to finance a student's
attorney to perform legal services for students in civil matters at
the institutions: Provided, That the legal services are limited
only to those types of cases, programs or services approved by the administrative head of the institution where the legal services are
to be performed.
(d) The commission and council jointly shall propose a rule
for legislative approval in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code to govern the
fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and,
therefore, the commission and council jointly shall file the rule
required by subsection (d) of this section as an emergency rule
pursuant to the provisions of article three-a, chapter
twenty-nine-a of this code, subject to the prior approval of the
Legislative Oversight Commission on Education Accountability.
(f) (e) The schedule of all tuition and fees, and any changes
therein in the schedule, shall be entered in the minutes of the
meeting of the appropriate governing board and the board shall file
with the commission or council, or both, as appropriate, and the
Legislative Auditor a certified copy of such the schedule and
changes.
(g) (f) The boards shall establish the rates to be charged
full-time students, as defined in section one-b of this article,
who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit
hours in a regular term shall have their fees reduced pro rata
based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular
term shall have their fees reduced pro rata based upon one ninth of
the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other
nontraditional time periods shall be prorated based upon the number
of credit hours for which the student enrolls in accordance with
the above provisions of this subsection.
(h) (g) All fees are due and payable by the student upon
enrollment and registration for classes except as provided in this
subsection:
(1) The governing boards shall permit fee payments to be made
in installments over the course of the academic term. All fees
shall be paid prior to the awarding of course credit at the end of
the academic term.
(2) The governing boards also shall authorize the acceptance
of credit cards or other payment methods which may be generally
available to students for the payment of fees. The governing boards
may charge the students for the reasonable and customary charges
incurred in accepting credit cards and other methods of payment.
(3) If a governing board determines that a student's finances
are affected adversely by a legal work stoppage, it may allow the
student an additional six months to pay the fees for any academic
term. The governing board shall determine on a case-by-case basis
if the finances of a student are affected adversely.
(4) The commission and council jointly shall propose a rule in
accordance with the provisions of article three-a, chapter
twenty-nine-a of this code defining conditions under which an
institution may offer tuition and fee deferred payment plans
through the institution or through third parties.
(5) An institution may charge interest or fees for any
deferred or installment payment plans.
(i) (h) In addition to the other fees provided in this
section, each governing board may impose, collect and distribute a
fee to be used to finance a nonprofit, student-controlled public
interest research group if the students at the institution
demonstrate support for the increased fee in a manner and method
established by that institution's elected student government. The
fee may not be used to finance litigation against the institution.
(j) (i) Institutions shall retain tuition and fee revenues not
pledged for bonded indebtedness or other purposes in accordance
with the tuition rule proposed by the commission and council
jointly pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and
fees;
(2) Allow institutions to charge different tuition and fees
for different programs;
(3) Provide that a board of governors may propose to the
commission, council or both, as appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the commission, council or
both, as appropriate, and either the students below the senior
level at the institution or the Legislature before becoming
effective;
(B) Increases may not exceed previous state subsidies by more
than ten percent;
(C) The fee may be used only to replace existing state funds
subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy
shall be reduced annually by the amount of money generated for the
institution by the fees. All state subsidies for the auxiliary
services shall cease five years from the date the mandatory
auxiliary fee is implemented;
(E) The commission, council or both, as appropriate, shall
certify to the Legislature annually by the first day of October in
the fiscal year following implementation of the fee, and annually
thereafter, the amount of fees collected for each of the five
years;
(4) Establish methodology, where applicable, to ensure that,
within the appropriate time period under the compact, community and
technical college tuition rates for community and technical college
students in all independently accredited community and technical
colleges will be commensurate with the tuition and fees charged by their peer institutions.
(k) (j) A penalty may not be imposed by the commission or
council upon any institution based upon the number of nonresidents
who attend the institution unless the commission or council
determines that admission of nonresidents to any institution or
program of study within the institution is impeding unreasonably
the ability of resident students to attend the institution or
participate in the programs of the institution. The institutions
shall report annually to the commission or council on the numbers
of nonresidents and such other enrollment information as the
commission or council may request.
(l) (k) Tuition and fee increases of the governing boards,
except for the governing boards of the state institutions of higher
education known as Marshall University and West Virginia
University, are subject to rules adopted by the commission and
council jointly pursuant to this section and in accordance with the
provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivisions (4) and (8) of
this subsection, a governing board of an institution under the
jurisdiction of the commission may propose tuition and fee
increases of up to nine and one-half percent for undergraduate
resident students for any fiscal year. The nine and one-half
percent total includes the amount of increase over existing tuition
and fees, combined with the amount of any newly established specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction
of the council may propose tuition and fee increases of up to four
and three-quarters percent for undergraduate resident students for
any fiscal year except a governing board may propose increases in
excess of four and three-quarters percent if existing tuition and
fee rates at the institution are below the state average for
tuition and fees at institutions under the jurisdiction of the
council. The four and three-quarters percent total includes the
amount of increase over existing tuition and fees, combined with
the amount of any newly established, specialized fee which may be
proposed by a governing board.
(3) The commission or council, as appropriate, shall examine
individually each request from a governing board for an increase.
(4) Subject to the provisions of subdivision (8) of this
subsection the governing boards of Marshall University and West
Virginia University, as these provisions relate to the state
institutions of higher education known as Marshall University and
West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident
students to the maximum allowed by this section without seeking
approval from the commission; and
(B) Set tuition and fee rates for post-baccalaureate resident
students and for all nonresident students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition
and fee rates of the administratively linked institution known as
Marshall Community and Technical College, the administratively
linked institution known as the Community and Technical College at
West Virginia University Institute of Technology, the regional
campus known as West Virginia University at Parkersburg and, until
the first day of July, two thousand seven, the regional campus
known as West Virginia University Institute of Technology.
(5) Any proposed tuition and fee increase for state
institutions of higher education other than the state institutions
of higher education known as Marshall University and West Virginia
University requires the approval of the commission or council, as
appropriate. In determining whether to approve or deny the
governing board's request, the commission or council shall
determine the progress the institution has made toward meeting the
conditions outlined in this subdivision and shall make this
determination the predominate factor in its decision. The
commission or council shall consider the degree to which each
institution has met the following conditions:
(A) Has maximized resources available through nonresident
tuition and fee charges to the satisfaction of the commission or
council;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of
article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for
post-secondary education and the statewide compact established in
articles one and one-a of this chapter;
(D) Has demonstrated to the satisfaction of the commission or
council that an increase will be used to maintain high-quality
programs at the institution;
(E) Has demonstrated to the satisfaction of the commission or
council that the institution is making adequate progress toward
achieving the goals for education established by the Southern
Regional Education Board; and
(F) To the extent authorized, will increase by up to five
percent the available tuition and fee waivers provided by the
institution. The increased waivers may not be used for athletics.
(6) This section does not require equal increases among
institutions or require any level of increase at an institution.
(7) The commission and council shall report to the Legislative
Oversight Commission on Education Accountability regarding the
basis for each approval or denial as determined using the criteria
established in subdivision (5) of this subsection.
(8) Notwithstanding the provisions of subdivisions (1) and (4)
of this subsection, tuition and fee increases at state institutions
of higher education which are under the jurisdiction of the commission, including the state institutions of higher education
known as Marshall University and West Virginia University, are
subject to the following conditions:
(A) Institutions may increase tuition and fees for resident,
undergraduate students by no more than an average of seven and
one-half percent per year during any period covering four
consecutive fiscal years, with the first fiscal year of the first
four-fiscal year cycle beginning on the first day of July, two
thousand seven;
(B) The seven and one-half percent average cap does not apply
to an institution for any fiscal year in which the total state base
operating budget appropriations to that institution are less than
the total state base operating budget appropriations in the fiscal
year immediately preceding;
(C) A new capital fee or an increase in an existing capital
fee is excluded from the tuition and fee increase calculation in
this subdivision:
(i) If the new fee or fee increase is approved by an
institutional governing board or by a referendum of an
institution's undergraduate students, or both, on or before the
first day of February, two thousand six; or
(ii) If the following conditions are met:
(I) The new fee or fee increase was approved by an
institutional governing board or by a referendum of an institution's undergraduate students, or both, on or before the
first day of July, two thousand six;
(II) The institution for which the capital fee is approved has
been designated a university pursuant to the provisions of section
six, article two-a of this chapter by the effective date of this
section; and
(III) The institutional board of governors previously oversaw
a community and technical college that achieved independent
accreditation and consequently acquired its own board of governors;
(D) Institutions shall provide, in a timely manner, any data
on tuition and fee increases requested by the staff of the
commission. The commission has the power and the duty to shall:
(i) Collect such the data from any institution under its
jurisdiction; and
(ii) Annually by the first day of July, provide a detailed
analysis of the institutions' compliance with the provisions of
this subdivision to the Legislative Oversight Commission on
Education Accountability.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers
for students in undergraduate studies at institutions under its
jurisdiction entitling recipients to waiver of tuition, capital and
other fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the governing boards of Marshall University and West Virginia University,
respectively, for the state institutions of higher education known
as Marshall University and West Virginia University, are subject to
the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher
education other than the state institutions of higher education
known as Marshall University and West Virginia University, the
following conditions apply:
(1) An institution may not have in effect at any time a number
of undergraduate fee waivers which exceeds five percent of the
number of totaling more in value than five percent of the tuition
and required fees assessed for all full-time equivalent
undergraduate students registered during the fall semester of the
immediately preceding academic year.
(2) Each undergraduate fee waiver entitles the recipient
thereof of the waiver to attend a designated state institution of
higher education without payment of the tuition, capital and other
fees as may be prescribed by the governing board and is for a
period of time not to exceed eight semesters of undergraduate
study.
(3) The governing board shall make rules pursuant to the
provisions of section six, article one of this chapter governing
the award of undergraduate fee waivers; the issuance and
cancellation of certificates entitling the recipients to the benefits thereof of the waiver; the use of the fee waivers by the
recipients; and the rights and duties of the recipients with
respect to the fee waivers. These rules may not be inconsistent
with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered
in the minutes of the meetings of the governing board.
(5) Students enrolled in an administratively linked community
and technical college shall be awarded a proportionate share of the
total number of undergraduate fee waivers awarded by a governing
board. The number to be awarded to students of the community and
technical college is based upon the full-time equivalent enrollment
of that institution.
(6) An institution may grant fee waivers to its employees,
their spouses and dependents, and these waivers are not counted
when determining the maximum percentage of waivers permitted by
this section.
(7) Any fee waivers mandated by this article or by section
three, article nineteen, chapter eighteen of this code are not
counted when determining the maximum percentage of waivers
permitted by this section.
§18B-10-6. Fee waivers -- Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate
study by the provisions of section five of this article, each
governing board periodically may establish fee waivers for study in graduate and professional schools under its jurisdiction, including
medicine and dentistry, entitling the recipients to waiver of
tuition, capital and other fees, subject to the following
conditions and limitations:
(a) Graduate and professional fee waivers established by the
governing boards of Marshall University and West Virginia
University, respectively, are subject to the provisions of section
six-a of this article;
(b) For the governing boards of state institutions of higher
education other than the state institutions of higher education
known as Marshall University and West Virginia University, the
following conditions apply:
(1) An institution may not have in effect at any time a number
of graduate and professional school fee waivers which exceeds five
percent of the number of totaling more in value than five percent
of the tuition and required fees assessed for all full-time
equivalent graduate and professional students registered during the
corresponding fall semester, spring semester and summer term of the
immediately preceding academic year. In addition to the above five
percent in this subdivision, all graduate assistants employed by
these institutions shall be granted a fee waiver.
(2) Each graduate or professional school fee waiver entitles
the recipient to waiver of the tuition, capital and other fees as
may be prescribed by the governing boards and is for a period of time not to exceed the number of semesters normally required in the
recipient's academic discipline.
(3) The governing boards shall make rules pursuant to the
provisions of section six, article one of this chapter governing
the award of graduate and professional school fee waivers; the
issuance and cancellation of certificates entitling the recipients
to the benefits thereof of the waivers; the use of the fee waivers
by the recipients; and the rights and duties of the recipients with
respect to the fee waivers. These rules may not be inconsistent
with the provisions of this section.
(4) The awarding of graduate and professional school fee
waivers shall be entered in the minutes of the meeting of each
governing board.
(5) An institution may grant fee waivers to its employees,
their spouses and dependents, and these waivers are not counted
when determining the maximum percentage of waivers permitted by
this section.
(6) Any fee waivers mandated by this article or by section
three, article nineteen, chapter eighteen of this code are not
counted when determining the maximum percentage of waivers
permitted by this section.
§18B-10-7. Tuition and fee waivers for children and spouses of
officers, firefighters, National Guard personnel,
reserve personnel and active military duty personnel killed in the line of duty.
(a) Each state institution of higher education shall permit
any person to attend its undergraduate courses and classes if
classroom space is available without charging the person any
tuition or any fees, if (1) the person waive tuition and fees for
any person who is the child or spouse of an individual who was:
(1) Was employed or serving as:
(A) A law-enforcement officer as defined in section one,
article twenty-nine, chapter thirty of this code;
(B) A correctional officer at a state penal institution;
(C) A parole officer;
(D) A probation officer;
(E) A conservation officer; or
(F) A registered firefighter; and
(2) Killed Was killed in the line of duty while:
(A) Employed by the state or any political subdivision of the
state; or
(B) A member of a volunteer fire department serving a
political subdivision of this state.
(b) Each state institution of higher education shall waive
tuition and fees for any person who is the child or spouse of:
(1) A National Guard member or a member of a reserve component
of the armed forces of the United States killed in the line of
duty. The member is considered to have been killed in the line of duty if death resulted from performing a duty required by his or
her orders or commander while in an official duty status, other
than on federal active duty, authorized under federal or state law;
or
(2) A person on federal or state active military duty who is
a resident of this state and is killed in the line of duty. The
person is considered to have been killed in the line of duty if
death resulted from performance of a duty required by his or her
orders or commander while in an official duty status.
(c) Any waiver granted pursuant to this section is subject to
the following:
(1) The recipient may attend any undergraduate course if
classroom space is available;
(2) The recipient has applied and been admitted to the
institution;
(3) The recipient has applied for and submitted the Free
Application for Federal Student Aid;
(4) The recipient has exhausted all other sources of student
financial assistance dedicated solely to tuition and fees that
exceed other grant assistance that are available to him or her,
excluding student loans;
(5) Waiver renewal is contingent upon the recipient continuing
to meet the academic progress standards established by the
institution.
(d) The state institution of higher education may require the
person to pay:
(1) Special fees, including any laboratory fees, if the fees
are required of all other students taking a single course or that
particular course; and
(2) Parking fees.
(c) (e) The governing boards may promulgate rules:
(1) For determining the availability of classroom space;
(2) As it considers necessary to implement this section; and
(3) Regarding requirements for attendance, which may not
exceed such the requirements for other persons.
(d) (f) The governing boards may extend to persons attending
courses and classes under this section any rights, privileges or
benefits extended to other students which it considers
appropriate.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 564--A Bill
to amend and reenact §18-19-2 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §18B-10-1, §18B-10-5,
§18B-10-6 and §18B-10-7 of said code, all relating to higher
education tuition and fees; clarifying eligibility requirements for
tuition and fee waivers for certain applicants; allowing increases in existing tuition and fees at institutions that are below the
state average; changing method of calculating limits on waivers of
tuition and fees; exempting tuition and fee waivers granted to
higher education employees, spouses and dependents and all tuition
and fee waivers authorized by statute from calculation of limits on
percentage of tuition and fee waivers granted by state institutions
of higher education; and requiring waivers of tuition and fees for
certain individuals.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 564, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 564) passed with its House of Delegates amended 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 564) takes effect July 1,
2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 590, Protecting health care
workers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 590--A Bill to amend and
reenact §61-2-10b of the Code of West Virginia, 1931, as amended,
relating to the protection of health care workers and protective
services workers; establishing enhanced criminal penalties for
crimes of violence against listed persons when they are engaged in
official duties; and defining "health care worker" and "protective
services worker".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 590, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 590) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 622, Creating
Voluntary Rural and Outdoor Heritage Conservation Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page twenty-two, section ten, line thirteen, by striking
out the word "twenty" and inserting in lieu thereof the word
"fifteen";
On page twenty-two, section ten, line twenty-two, by striking
out the word "five" and inserting in lieu thereof the word "ten";
And,
On page twenty-three, section ten, lines thirty-one through
forty-two, by striking out all of subdivision (7) and inserting in
lieu thereof a new subdivision (7), to read as follows:
(7) Eleven dollars of each recording fee received pursuant to
subdivision (1) of this subsection shall be retained by the county clerk for the operation of that office and four dollars of each of
the aforesaid recording fees together with five dollars of the
recording fee collected pursuant to subdivision (5) of this
section, shall be paid by the county clerk into the State Treasurer
and deposited in equal amounts for deposit into the Farmland
Protection Fund created in article twelve, chapter eight-a of this
code for the benefit of the West Virginia Agricultural Land
Protection Authority and into the Outdoor Heritage Conservation
Fund created in article two-g, chapter five-b of this code:
Provided, That the funds deposited pursuant to this subdivision may
only be used for costs, excluding personnel costs, associated with
purpose of land conservation, as defined in subsection (f), section
seven, article two-g, chapter five-b of this code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 622, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster,
Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Facemyer, Hall and Sypolt--3.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 622) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 638, Requiring information
collection from catalytic converter purchasers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section fifty-nine, after line seventy-one, by
adding a new subsection, designated subsection (h), to read as
follows:
(h) Nothing in this section is intended to apply to a consumer
purchasing a vehicle which contains a catalytic converter, nor is
it intended to apply to a consumer who purchases a replacement
catalytic converter for a vehicle.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 638, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 638) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 650, Relating to Emergency
Medical Services Retirement System.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages thirty-five through thirty-seven, by striking out
section ten in its entirety;
On page three, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §16-5V-2, §16-5V-6, §16-5V-8, §16-5V-9, §16-5V-14,
§16-5V-18, §16-5V-19, §16-5V-25 and §16-5V-32 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 650--A Bill to amend and
reenact §16-5V-2, §16-5V-6, §16-5V-8, §16-5V-9, §16-5V-14,
§16-5V-18, §16-5V-19, §16-5V-25 and §16-5V-32 of the Code of West
Virginia, 1931, as amended, all relating to the Emergency Medical
Services Retirement System; adding and modifying definitions;
specifying that members hired after the effective date of this plan
are members of the plan as a condition of employment; clarifying
language relating to the participation of public employers in this
plan; clarifying language relating to the transfer of Public
Employees Retirement System service credit and reinstatement of service as an emergency medical services officer; specifying the
date on which contributions are due the fund and providing for
delinquency fees for late payments; clarifying language relating to
purchase of prior service and providing for delinquency fees for
late payments; eliminating minimum required eligible direct
rollover distributions paid directly to an eligible retirement
plan; allowing distributions totaling less than two hundred dollars
within the definition of eligible rollover distribution; clarifying
the language relating to the benefit awarded for a duty disability;
adding provisions for the payment of additional death benefits;
clarifying language relating to the effective date for receipt of
a duty disability benefit; and making a correction to the time
period for which the Joint Committee on Government and Finance
shall conduct an interim study on the potential effects of the
implementation of this plan.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 650, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 650) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 715, Defining certain
Public Employees Insurance Agency eligibility.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page nine, after section two, by adding the following:
§5-16-15. Optional dental, optical, disability and prepaid
retirement plan, and audiology and hearing-aid
service plan.
(a) On and after the first day of July, one thousand nine
hundred eighty-nine, the director shall make available to
participants in the public employees insurance system: (1) A
dental insurance plan; (2) an optical insurance plan; (3) a
disability insurance plan; (4) a prepaid retirement insurance plan;
and (5) an audiology and hearing-aid services insurance plan.
Public employees insurance participants may elect to participate in
any one of these plans separately or in combination.
Notwithstanding anything in this article to the contrary, all All
actuarial and administrative costs of each plan shall be totally
borne by the premium payments of the participants or local
governing bodies electing to participate in that plan. The
director is authorized to employ such administrative practices and
procedures with respect to these optional plans as are authorized
for the administration of other plans under this article. The
director shall establish separate funds: (1) For deposit of dental
insurance premiums and payment of dental insurance claims; (2) for
deposit of optical insurance premium payments and payment of
optical insurance claims; (3) for deposit of disability insurance
premium payments and payment of disability insurance claims; and
(4) for deposit of audiology and hearing-aid service insurance
premiums and payment of audiology and hearing-aid insurance claims.
Such funds shall not be supplemented by nor be used to supplement
any other funds.
(b) The finance board shall study the feasibility of an oral
health benefit for children of participants.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §5-16-2 and §5-16-15 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows
Eng. Com. Sub. for Senate Bill No. 715--A Bill to amend and
reenact §5-16-2 and §5-16-15 of the Code of West Virginia, 1931, as
amended, all relating to the participation in the Public Employees
Insurance Agency of certain retired employees; mandatory
participation in Retiree Health Benefit Trust Fund; requiring
written certification from nonstate employers who opt out of the
other post-employment benefits plan of the fund; providing that
agency is not liable to provide benefit where employer opted out;
and directing the finance board to study an oral health benefit to
children of covered employees.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 715, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 715) passed with its House of Delegates
amended 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 715) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 736, Relating to real
property sales of persons under legal disability.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page nine, section eight, line one hundred twenty-five, by
striking out the words "six hundred" and inserting in lieu thereof
the words "two thousand".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 736, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 736) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 746, Establishing recycling
recovery program for electronics.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section two, line eight, after the word
"barriers" by inserting the words "and other civil engineering
applications";
On page three, section two, line thirteen, after the word
"barriers" by inserting a comma and the words "recapping,
alternative daily cover";
On page seventeen, section twenty-five, line sixteen, by striking out the word "or" and inserting in lieu thereof the word
"and";
On page seventeen, section twenty-five, line thirty-two, after
the word "year" by inserting a comma and the words "either by
actual count or by using average product weights";
On page twenty-one, section twenty-six, line ten, after the
word "separate" by inserting the word "recycling";
And,
On page twenty-two, section twenty-six, line twenty-three, by
striking out the word "are" and inserting in lieu thereof the word
"or".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 746, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 746) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Senate Bill No. 780, Relating to Public Employees
Grievance Procedure.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages four and five, section two, line twenty-five, by
striking out all of subsection (d) and inserting in lieu thereof a
new subsection (d), to read as follows:
(d) "Discrimination" means any differences in the treatment of
similarly situated employees, unless the differences are related to
the actual job responsibilities of the employees or are agreed to
in writing by the employees.;
And,
On page six, section two, line sixty-three, after the word
"employee" by striking out the comma and the words "is agreed to in writing by the employee or is based upon a legitimate reason
related to the employment relationship" and inserting in lieu
thereof the words "or is agreed to in writing by the employee."
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 780, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 780) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Senate Concurrent Resolution No. 28, Designating timber
rattlesnake as state reptile.
On motion of Senator Chafin, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
On page one, in the fifth Whereas, by striking out the words
"therefore, be it" and inserting in lieu thereof the following:
and
Whereas, No fossil has been designated as the official state
fossil for the State of West Virginia; and
Whereas, Interest in fossils and paleontology has become
increasingly widespread throughout the citizenry of this state,
there currently being fossil, rock and gem clubs already organized
in the counties of Cabell, Harrison, Kanawha and Wood; and
Whereas, In 1797, President Thomas Jefferson obtained and
described fossil bones from a limestone cave in what is now Monroe
County; and
Whereas, These bones were again described by Casper Wistar in
1799 as the bones of a giant extinct ground sloth; and
Whereas, Wistar named the bones as a new species, Megalonyx
Jeffersonnii, in honor of President Jefferson; and
Whereas, The bones are from the Ice Age or Pleistocene Epoch
which lasted from 10,000 to 1.8 million years ago; and
Whereas, The designation of a state fossil would aid in the
promotion of interest in geology, paleontology and history; and
Whereas, The bones afford an opportunity for special studies
in American, State, and natural history for the students of the
state; and
Whereas, Thirty-nine of the fifty states have an official
state fossil; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby designates the timber rattlesnake
as West Virginia's state reptile and the fossil Megalonyx
Jeffersonnii as the state fossil; and, be it
Further Resolved, That the Clerk of the Senate is hereby
requested to forward official copies of this resolution to the
citizens and schools in the state.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 28--Designating the timber
rattlesnake as West Virginia's state reptile and designating
Megalonyx Jeffersonnii as West Virginia's state fossil.
Senator Chafin moved that the Senate refuse to concur in the
foregoing House amendments to the resolution (S. C. R. No. 28) and
request the House of Delegates to recede therefrom.
The question being on the adoption of Senator Chafin's aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator
Chafin demanded a division of the vote.
A standing vote being taken, there were seventeen "yeas" and
thirteen "nays".
Whereupon, Senator Tomblin (Mr. President) declared Senator
Chafin's aforestated motion had prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Senate Concurrent Resolution No. 48, Requesting Division of
Highways name bridge in Puritan Mines, Mingo County, "Rev. Glen and
Gladys Merritt Bridge".
On motion of Senator Chafin, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
On page two, in the seventh Whereas clause, by striking out
"30-65/5-1.47 (10525)" and inserting in lieu thereof "30-65/5-
1.08(10523)";
On page two, after the Resolved clause, by striking out "30-65/5-1.47 (10525)" and inserting in lieu thereof "30-65/5-
1.08(10523)";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 48--
Requesting the Division
of Highways name bridge number 30-65/5-1.08 (10523) in Puritan
Mines, Mingo County, the "Rev. Glen and Gladys Merritt Bridge".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R.
No. 48), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
April 1, 2008, and requested the concurrence of the Senate in the
changed effective date, as to
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety
equipment requirements and enhancing penalties for crimes against
mining property.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in
the changed effective date of the bill, that being to take effect
April 1, 2008, instead of ninety days from passage.
Senator Chafin moved that the bill take effect April 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. 4021) takes effect April 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4032, Relating to payment of
wages through a direct deposit system.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4129, Revising licensing
requirements for professional licensing boards, including
authorizing a special volunteer license for health care
professionals.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4331, Eliminating the
requirement to send surrendered driver's licenses back to the
original state of licensure.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4404, Discount Medical Plan
Organizations and Discount Prescription Drug Plan Organizations
Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 4513, Relating to the reimbursement of
costs for newborn screenings.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4617, Allowing
e-notification by using e-certified cards for verification of
certified mail acceptance to the court of origin for service of
process.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4619, Collaborative Family
Law Proceedings.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 280, Modifying Downtown
Redevelopment Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the
Code of West Virginia, 1931, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Development expenditures" means payments for governmental
functions, programs, activities, facility construction,
improvements and other goods and services which a district board is
authorized to perform or provide under section five of this
article;
(2) "District" means an economic opportunity development
district created pursuant to this article;
(3) "District board" means a district board created pursuant
to section ten of this article;
(4) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article; and
(5) "Municipality" is a word of art and shall mean, for the
purposes of this article, only Class I and Class II cities as
classified in section three, article one of this chapter;
(6) "Remediation" means measures undertaken to bring about the
reconditioning or restoration of property located within the boundaries of an economic opportunity development district project
that has been affected by exploration, industrial operations or
solid waste disposal and which measures, when undertaken, will
eliminate or ameliorate the existing state of the property and
enable the property to be commercially developed.
§8-38-5. Development expenditures.
Any municipality that has established an economic opportunity
development district under this article may make, or authorize to
be made by a district board and other public or private parties,
development expenditures as will promote the economic vitality of
the district and the general welfare of the municipality,
including, but not limited to, expenditures for the following
purposes:
(1) Beautification of the district by means such as
landscaping and construction and erection of fountains, shelters,
benches, sculptures, signs, lighting, decorations and similar
amenities;
(2) Provision of special or additional public services such as
sanitation, security for persons and property and the construction
and maintenance of public facilities, including, but not limited
to, sidewalks, parking lots, parking garages and other public
areas;
(3) Making payments for principal, interest, issuance costs,
any of the costs described in section twenty of this article and appropriate reserves for bonds and other instruments and
arrangements issued or entered into by the municipality for
financing the expenditures of the district described in this
section and to otherwise implement the purposes of this article;
(4) Providing financial support for public transportation and
vehicle parking facilities open to the general public, whether
physically situate within the district's boundaries or on adjacent
land;
(5) Acquiring, building, demolishing, razing, constructing,
repairing, reconstructing, refurbishing, renovating,
rehabilitating, expanding, altering, otherwise developing,
operating and maintaining real property generally, parking
facilities, commercial structures and other capital improvements to
real property, fixtures and tangible personal property, whether or
not physically situate within the district's boundaries: Provided,
That the expenditure directly benefits the district;
(6) Developing plans for the architectural design of the
district and portions thereof and developing plans and programs for
the future development of the district;
(7) Developing, promoting and supporting community events and
activities open to the general public that benefit the district;
(8) Providing the administrative costs for a district
management program;
(9) Providing for the usual and customary maintenance and upkeep of all improvements and amenities in the district as are
commercially reasonable and necessary to sustain its economic
viability on a permanent basis;
(10) Providing any other services that the municipality or
district board is authorized to perform and which the municipality
does not also perform to the same extent on a countywide basis;
(11) Making grants to the owners or tenants of economic
opportunity development district for the purposes described in this
section;
(12) Acquiring an interest in any entity or entities that own
any portion of the real property situate in the district and
contributing capital to any entity or entities; and
(13) Remediation of publicly or privately owned landfills,
solid waste facilities or hazardous waste sites to facilitate
commercial development which would not otherwise be economically
feasible; and
(13) (14) To do any and all things necessary, desirable or
appropriate to carry out and accomplish the purposes of this
article notwithstanding any provision of this code to the contrary.
§8-38-7. Application to Development Office for community and
economic development for approval of an economic
opportunity development district project.
(a) General. -- The Development Office shall receive and act
on applications filed with it by municipalities pursuant to section six of this article. Each application must include:
(1) A true copy of the notice described in section six of this
article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its inception:
Provided, That the amounts of the reserves shall not exceed the
amounts that would be required by ordinary commercial capital
market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment of
the district or from another place in this state to the district:
Provided, That for purposes of this article, any entities shall be
designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
Tax Commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain in
the district, for the twelve full calendar months next preceding
the date of the application: Provided, That for purposes of this
article, the aggregate amount is designated as "the base tax
revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The Tax Commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the Development Office; (ii) the
estimated amount of economic opportunity district excise tax that
will be collected during the first twelve months after the month in
which the Tax Commissioner would first begin to collect that tax;
and (iii) the estimated amount of economic opportunity district
excise tax that will be collected during the first thirty-six
months after the month in which the Tax Commissioner would first
begin to collect that tax; and
(14) Any additional information the Development Office may
require.
(b) Review of applications. -- The Development Office shall
review all project proposals for conformance to statutory and
regulatory requirements, the reasonableness of the project's budget
and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located for
the successful establishment or expansion of other industrial or
commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities in
the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) (A) The ability of the municipality and the project
developer or project team to carry out the project: Provided, That
no project may be approved by the Development Office unless the
amount of all development expenditures proposed to be made in the
first twenty-four months following the creation of the district
results in capital investment of more than fifty million dollars in
the district and the municipality submits clear and convincing
information, to the satisfaction of the Development Office, that
such investment will be made if the Development Office approves the
project and the Legislature authorizes the municipality to levy an
excise tax on sales of goods and services made within the economic
opportunity development district as provided in this article.
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, no project involving remediation may
be approved by the Development Office unless the amount of all
development expenditures proposed to be made in the first forty-
eight months following the creation of the district results in
capital investment of more than fifty million dollars in the
district. In addition to the remaining provisions of paragraph (A) of this subdivision, the Development Office may not approve a
project involving remediation authorized under section five of this
article unless the municipality submits clear and convincing
information, to the satisfaction of the Development Office, that
the proposed remediation expenditures to be financed by the
issuance of bonds or notes pursuant to section sixteen of this
article do not constitute more than twenty-five percent of the
total redevelopment expenditures associated with the project.
(c) Additional criteria. -- The Development Office may
establish other criteria for consideration when approving the
applications.
(d) Action on the application. -- The Executive Director of
the Development Office shall act to approve or not approve any
application within thirty days following the receipt of the
application or the receipt of any additional information requested
by the Development Office, whichever is the later.
(e) Certification of project. -- If the Executive Director of
the Development Office approves a municipality's economic
opportunity district project application, he or she shall issue to
the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount,
all of which the Development Office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the Development Office requests from the Tax
Commissioner and the Tax Commissioner provides to the Development
Office: Provided, That in determining the net annual district tax
revenue amount, the Development Office may not use a base tax
revenue amount less than that amount certified by the Tax
Commissioner but, in lieu of confirmation from the Tax Commissioner
of the gross annual district tax revenue amount, the Development
Office may use the estimate of the gross annual district tax
revenue amount provided by the municipality pursuant to subsection
(a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the Executive Director of the
Development Office approves a municipality's economic opportunity
district project application to expand the geographic boundaries of
a previously certified district, he or she shall issue to the
municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount,
all of which the Development Office has determined with respect to
the district's application based on any investigation it considers
reasonable and necessary, including, but not limited to, any
relevant information the Development Office requests from the Tax
Commissioner and the Tax Commissioner provides to the Development
Office: Provided, That in determining the net annual district tax
revenue amount, the Development Office may not use a base tax
revenue amount less than that amount certified by the Tax
Commissioner but, in lieu of confirmation from the Tax Commissioner
of the gross annual district tax revenue amount, the Development
Office may use the estimate of the gross annual district tax
revenue amount provided by the municipality pursuant to subsection
(a) of this section.
(g) Promulgation of rules. -- The Executive Director of the
Development Office may promulgate rules to implement the economic
opportunity development district project application approval
process and to describe the criteria and procedures it has
established in connection therewith. These rules are not subject
to the provisions of chapter twenty-nine-a of this code but shall
be filed with the Secretary of State.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by
ordinance, impose that tax on the privilege of selling tangible
personal property and rendering select services in the district in
accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base of
the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district. Provided, That
Sales of gasoline and special fuel are not subject to special
district excise tax but remain subject to the tax levied by article
fifteen, chapter eleven of this code. Except for the exemption
provided in section nine-f of said article, all exemptions and
exceptions from the consumers sales and service tax shall also
apply to the special district excise tax. and sales of gasoline and
special fuel shall not be subject to special district excise tax
but shall remain subject to the tax levied by said article.
(c) Tax rate. -- The rate or rates of a special district
excise tax levied pursuant to this section shall be stated in an
ordinance enacted by the municipality and equal identical to the
general rate or rates of the consumers sales and service tax
imposed pursuant to article fifteen, chapter eleven of this code on
each dollar of gross proceeds from sales of tangible personal
property and services subject to the tax levied by section three, article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of said section. rendered within the
boundaries of the district authorized by this section.
(d) Collection by Tax Commissioner. -- The ordinance of the
municipality imposing a special district excise tax shall provide
for the tax to be collected by the Tax Commissioner in the same
manner as the tax levied by section three, article fifteen, chapter
eleven of this code is administered, assessed, collected and
enforced.
(1) The State Tax Commissioner may require the electronic
filing of returns related to the special district excise tax
imposed pursuant to this section, and may require the electronic
payment of the special district excise tax imposed pursuant to this
section. The State Tax Commissioner may prescribe by rules
promulgated pursuant to article three, chapter twenty-nine-a of
this code administrative notices, and forms and instructions, the
procedures and criteria to be followed to electronically file such
returns and to electronically pay the special district excise tax
imposed pursuant to this section.
(2) Any rules filed by the State Tax Commissioner relating to
the special district excise tax imposed pursuant to this section
shall set forth the following:
(A) Acceptable indicia of timely payment;
(B) Which type of electronic filing method or methods a
particular type of taxpayer may or may not use;
(C) What type of electronic payment method or methods a
particular type of taxpayer may or may not use;
(D) What, if any, exceptions are allowable and alternative
methods of payment that may be used for any exceptions;
(E) Procedures for making voluntary or mandatory electronic
payments or both;
(F) Any other provisions necessary to ensure the timely
electronic filing of returns related to the special district excise
tax and the making of payments electronically of the special
district excise tax imposed pursuant to this section.
(3) (A) Notwithstanding the provisions of section five-d,
article ten, chapter eleven of this code: (i) So long as bonds are
outstanding pursuant to this article, the Tax Commissioner shall
provide on a monthly basis to the trustee for bonds issued pursuant
to this article information on returns submitted pursuant to this
article; and (ii) the trustee may share the information so obtained
with the county commission that established the economic
opportunity development district that issued the bonds pursuant to
this article and with the bondholders and with bond counsel for
bonds issued pursuant to this article. The Tax Commissioner and
the trustee may enter into a written agreement in order to
accomplish such exchange of information.
(B) Any confidential information provided pursuant to this
subdivision shall be used solely for the protection and enforcement
of the rights and remedies of the bondholders of bonds issued
pursuant to this article. Any person or entity that is in
possession of information disclosed by the Tax Commissioner or
shared by the trustee pursuant to subdivision (a) of this
subsection is subject to the provisions of section five-d, article
ten, chapter eleven of this code as if such person or entity that
is in possession of such tax information is an officer, employee,
agent or representative of this state or of a local or municipal
governmental entity or other governmental subdivision.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special
district excise tax shall provide that the Tax Commissioner deposit
the net amount of tax collected in the special Economic Opportunity
Development District Fund to the credit of the municipality's
subaccount therein for the economic opportunity development
district and that the money in the subaccount may only be used to
pay for development expenditures as provided in this article except
as provided in subsection (f) of this section.
(2) (A) The State Treasurer shall withhold from the
municipality's subaccount in the Economic Opportunity Development
District Fund and shall deposit in the General Revenue Fund of this
state, on or before the twentieth day of each calendar month next following the effective date of a special district excise tax, a
sum equal to one twelfth of the base tax revenue amount last
certified by the Development Office pursuant to section seven of
this article.
(B) In addition to the amounts described in paragraph (A) of
this subdivision, the Tax Commissioner shall deposit in the General
Revenue Fund of this state on the dates specified in said paragraph
not less than twenty percent nor more than fifty percent of the
excess of the special district excise taxes collected during the
preceding month above one twelfth of the base tax revenue, said
percentage to be fixed by the Development Office in conjunction
with its approval of an application in accordance with section
seven of this article based on the amount of state funds, if any,
to be expended in conjunction with the respective economic
opportunity development district project for items including, but
not limited to, the acquisition, construction, reconstruction,
improvement, enlargement or extension of roadways, rights-of-way,
sidewalks, traffic signals, water or sewer lines and other public
infrastructure and such other expenditures of state funds
identified by the Development Office.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance imposing the tax or at any later date expressly designated in the
ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance
levying a special district excise tax, a certified copy of the
ordinance shall be mailed to the State Auditor, as ex officio the
chief inspector and supervisor of public offices, the State
Treasurer and the Tax Commissioner.
§8-38-16. Bonds issued to finance economic opportunity development
district projects.
(a) General. -- The municipality that established the economic
opportunity development district may issue bonds or notes for the
purpose of financing development expenditures, as described in
section five of this article, with respect to one or more projects
within the economic opportunity development district.
(b) Limited obligations. -- All bonds and notes issued by a
municipality under the authority of this article are limited
obligations of the municipality.
(c) Term of obligations. -- No municipality may issue notes,
bonds or other instruments for funding district projects or
improvements that exceed a repayment schedule of thirty years:
Provided, That the maximum repayment schedule of bonds issued to
finance remediation authorized under section five of this article
may not exceed twenty years.
(d) Debt service. -- The principal and interest on the bonds shall be payable out of the funds on deposit in the subaccount
established for the economic opportunity development district
pursuant to section eight of this article, including, without
limitation, any funds derived from the special district excise tax
imposed by section twelve of this article or other revenues derived
from the economic opportunity development district to the extent
pledged for the purpose by the municipality in the resolution
authorizing the bonds.
(e) Surplus funds. -- To the extent that the average daily
amount on deposit in the subaccount established for a district
pursuant to section eight of this article exceeds, for more than
six consecutive calendar months, the sum of: (1) One hundred
thousand dollars; plus (2) the amount required to be kept on
deposit pursuant to the documents authorizing, securing or
otherwise relating to the bonds or notes issued under this section,
then the excess shall be used by the district either to redeem the
bonds or notes previously issued or remitted to the general fund of
this state.
(f) Debt not general obligation of municipality. -- Neither
the notes or bonds and any interest coupons issued under the
authority of this article shall ever constitute an indebtedness of
the municipality issuing the notes or bonds within the meaning of
any constitutional provision or statutory limitation and shall
never constitute or give rise to a pecuniary liability of the municipality issuing the notes or bonds.
(g) Debt not a charge general credit or taxing powers of
municipality. -- Neither the bonds or notes, nor interest thereon,
is a charge against the general credit or taxing powers of the
municipality and that fact shall be plainly stated on the face of
each bond or note.
(h) Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed,
issued and delivered at any time, and from time to time, may be in
a form and denomination, may be of a tenor, must be negotiable but
may be registered as to the principal thereof or as to the
principal and interest thereof, may be payable in any amounts and
at any time or times, may be payable at any place or places, may
bear interest at any rate or rates payable at any place or places
and evidenced in any manner and may contain any provisions therein
not inconsistent herewith, all as provided in the ordinance of the
municipality whereunder the bonds or notes are authorized to be
issued.
(2) The bonds may be sold by the municipality at public or
private sale at, above or below par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be
signed by the authorized representative of the municipality and
attested by the municipal recorder and be under the seal of the
municipality.
(4) Any coupons attached to the bonds shall bear the facsimile
signature of the authorized representative of the municipality. In
case any of the officials whose signatures appear on the bonds,
notes or coupons cease to be officers before the delivery of the
bonds or notes, their signatures shall, nevertheless, be valid and
sufficient for all purposes to the same extent as if they had
remained in office until the delivery.
(i) Additional bonds or notes. -- If the proceeds of the bonds
or notes, by error of calculation or otherwise, are less than the
cost of the economic opportunity development district project, or
if additional real or personal property is to be added to the
district project or if it is determined that financing is needed
for additional development or redevelopment expenditures,
additional bonds or notes may, in like manner, be issued to provide
the amount of the deficiency or to defray the cost of acquiring or
financing any additional real or personal property or development
or redevelopment expenditures and, unless otherwise provided in the
trust agreement, mortgage or deed of trust, are considered to be of
the same issue and shall be entitled to payment from the same fund,
without preference or priority, and shall be of equal priority as
to any security.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 280--A Bill to amend and
reenact §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the
Code of West Virginia, 1931, as amended, all relating to the
Municipal Economic Opportunity Development District Act generally;
adding certain remediation projects to those for which special
district excise taxes may be authorized upon meeting certain
requirements; clarifying the rates of the tax; authorizing the Tax
Commissioner to require the electronic filing of returns and
electronic payment of the tax; providing for the sharing of tax
information and confidentiality of such information; and requiring
additional deposits of the tax into the General Revenue Fund in
certain circumstances.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 280, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 280) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 323, Relating to stormwater
systems generally.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 20. COMBINED SYSTEMS.
§8-20-10. Power and authority of municipality to enact ordinances
and make rules and fix rates, fees or charges; deposit
required for new customers; change in rates, fees or
charges; failure to cure delinquency; delinquent rates, discontinuance of service; reconnecting
deposit; return of deposit; fees or charges as liens;
civil action for recovery thereof; deferral of filing
fees and costs in magistrate court action; limitations
with respect to foreclosure.
(a) (1) The governing body of a municipality availing itself
of the provisions of this article shall have plenary power and
authority to make, enact and enforce all needful necessary rules
for the repair, maintenance, and operation and management of the
combined system of such the municipality and for the use thereof.
and shall also have The governing body of a municipality also has
the plenary power and authority to make, enact and enforce all
needful necessary rules and ordinances for the care and protection
of any such system, which may be conducive to the preservation of
the public for the health, comfort and convenience and to rendering
the
of the public; to provide a clean water supply, of such
municipality pure, the sewerage harmless insofar as it is
reasonably possible so to do, and to provide properly treated
sewage insofar as it is reasonably possible to do and, if
applicable, to properly collecting and controlling the stormwater
as is reasonably possible so to do: Provided, That no municipality
may make, enact or enforce any rule, regulation or ordinance
regulating any highways, road or drainage easements or storm water
facilities constructed, owned or operated by the West Virginia Division of Highways. except in accordance with chapter
twenty-nine-a of this code.
(2) Any A municipality shall have has the plenary power and
authority to charge the users for the use and service of a combined
system and to establish required deposits, rates, fees or charges
for such purpose. Separate deposits, rates, fees or charges may be
fixed for the water and sewer services respectively and, if
applicable, the stormwater services, or combined rates, fees or for
the combined water and sewer services, and, if applicable, the
stormwater services. Such deposits, rates, fees or charges,
whether separate or combined, shall be sufficient at all times to
pay the cost of repair, maintenance and operation of the combined
system, provide an adequate reserve fund, and an adequate
depreciation fund and pay the principal of and interest upon all
revenue bonds issued under this article. Deposits, rates, fees or
charges shall be established, revised and maintained by ordinance
and become payable as the governing body may determine by
ordinance. and such The rates, fees or charges shall be changed,
from time to time, as needful necessary, consistent with the
provisions of this article.
(3) All new applicants for service shall indicate to the
municipality or governing body whether they are an owner or tenant
with respect to the service location.
An entity providing
stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate,
that portion of the fee to be assessed to the tenant.
(4) The municipality or governing body, but only one of them,
may collect from all new applicants for service a deposit of one
hundred dollars or two twelfths of the average annual usage of the
applicant?s specific customer class, whichever is greater, to
secure the payment of water and sewage service rates, fees and
charges in the event they become delinquent as provided in this
section. In any case where a deposit is forfeited to pay service
rates, fees and charges which were delinquent and the user?s
service is disconnected or terminated, no reconnecting or
reinstatement of service may not be made reconnected or reinstated
by the municipality or governing body until another deposit equal
to one hundred dollars or a sum equal to two twelfths of the
average usage for the applicant?s specific customer class,
whichever is greater, is remitted to the municipality or governing
body. After twelve months of prompt payment history, the
municipality or governing body shall return the deposit to the
customer or credit the customer?s account with interest at a rate
as to be set by the Public Service Commission may prescribe:
Provided, That where the customer is a tenant, the municipality or
governing body is not required to return the deposit until the time
the tenant discontinues service with the municipality or governing
body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days
after the same they become due and payable, the user of the
services and facilities provided is delinquent and the user is
liable at law until all rates, fees and charges are fully paid.
The municipality or governing body may under reasonable rules
promulgated by the Public Service Commission, shut off and
discontinue terminate water services to a delinquent user of either
water or sewage facilities, or both, ten days after the water or
sewage services become delinquent regardless of whether the
governing body utilizes the security deposit to satisfy any
delinquent payments:
Provided, That any termination of water
service must comply with all rules and orders of the Public Service
Commission
.
(b) Whenever any rates, fees or charges for services or
facilities furnished remain unpaid for a period of twenty days
after the same they become due and payable, the user of the
services and facilities provided shall be delinquent and the
municipality or governing body may apply any deposit against any
delinquent fee. and the The user shall be held is liable at law
until such time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer
service and, if applicable, stormwater service, whenever
delinquent, as provided by ordinance of the municipality, shall be
liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the
amount thereof upon the real property served. and the The
municipality shall have has the plenary power and authority from
time to time to enforce such lien in a civil action to recover the
money due for services rendered plus court fees and costs and a
reasonable attorney?s fee fees: Provided, That an owner of real
property may not be held liable for the delinquent rates, fees or
charges for services or facilities of a tenant, nor shall any lien
attach to real property for the reason of delinquent rates, fees or
charges for services or facilities of a tenant of the real
property, unless the owner has contracted directly with the
municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing
fees or other fees and costs incidental to the bringing and
maintenance of filing an action in magistrate court for the
collection of the delinquent rates and charges. If the
municipality collects the delinquent account, plus fees and costs,
from its customer or other responsible party, the municipality
shall pay to the magistrate court the filing fees or other fees and
costs which were previously deferred.
(e) No municipality may foreclose upon the premises served by
it for delinquent rates, fees or charges for which a lien is
authorized by this section except through the bringing and
maintenance of a civil action for the purpose brought in the circuit court of the county wherein the municipality lies. In
every such action, the court shall be required to make a finding
based upon the evidence and facts presented that the municipality
had has exhausted all other remedies for the collection of debts
with respect to such delinquencies prior to the bringing of the
action. In no event shall foreclosure procedures be instituted by
any municipality or on its behalf unless the delinquency had has
been in existence or continued for a period of two years from the
date of the first delinquency for which foreclosure is being
sought.
(f) Notwithstanding any other provision contained in this
article, a municipality which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community, as defined in 40 C.
F. R. §122.26, has the authority to enact ordinances or regulations
which allow for the issuance of orders, the right to enter
properties and the right to impose reasonable fines and penalties
regarding correction of violations of municipal stormwater
ordinances or regulations within the municipal watershed served by
the municipal stormwater system, as long as such rules,
regulations, fines or acts are not contrary to any rules or orders
of the Public Service Commission.
(g) Notice of a violation of a municipal stormwater ordinance
or regulation shall be served in person to the alleged violator or by certified mail, return receipt requested. The notice shall
state the nature of the violation, the potential penalty, the
action required to correct the violation and the time limit for
making the correction. Should a person, after receipt of proper
notice, fail to correct violation of the municipal stormwater
ordinance or regulation, the municipality may correct or have the
corrections of the violation made and bring the party into
compliance with the applicable stormwater ordinance or regulation.
The municipality may collect the costs of correcting the violation
from the person by instituting a civil action, as long as such
actions are not contrary to any rules or orders of the Public
Service Commission.
(h) A municipality which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community shall prepare an
annual report detailing the collection and expenditure of rates,
fees or charges and make it available for public review at the
place of business of the governing body and the stormwater utility
main office.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.
§16-13-16. Rates for service; deposit required for new customers;
forfeiture of deposit; reconnecting deposit; tenant's
deposit; change or readjustment; hearing; lien and recovery; discontinuance of services.
The governing body shall have power, and it shall be its A
governing body has the power and duty, by ordinance, to establish
and maintain just and equitable rates, fees or charges for the use
of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every
lot, parcel of real estate or building that is connected with and
uses such works by or through any part of the sewerage system of
the municipality or that in any way uses or is served by such
works; and
(b) Stormwater works, to be paid by the owner of each and
every lot, parcel of real estate or building that in any way uses
or is served by such stormwater works or whose property is improved
or protected by the stormwater works or any user of such stormwater
works.
(c) The governing body may change and readjust such rates,
fees or charges from time to time. However, no rates, fees or
charges for stormwater services may be assessed against highways,
road and drainage easements and/or or stormwater facilities
constructed, owned and/or or operated by the West Virginia Division
of Highways.
(d) All new applicants for service shall indicate to the
governing body whether they are an owner or tenant with respect to
the service location. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the
entire property and, if appropriate, that portion of the fee to be
assessed to the tenant.
(e) The governing body may collect from all new applicants for
service a deposit of fifty dollars or two twelfths of the average
annual usage of the applicant's specific customer class, whichever
is greater, to secure the payment of service rates, fees and
charges in the event they become delinquent as provided in this
section. In any case where a deposit is forfeited to pay service
rates, fees and charges which were delinquent at the time of
disconnection or termination of service, no reconnecting or
reinstatement of service may not be made reconnected or reinstated
by the governing body until another deposit equal to fifty dollars
or a sum equal to two twelfths of the average usage for the
applicant's specific customer class, whichever is greater, is
remitted to the governing body. After twelve months of prompt
payment history, the governing body shall return the deposit to the
customer or credit the customer's account with interest at a rate
as the Public Service Commission may prescribe: Provided, That
where the customer is a tenant, the governing body is not required
to return the deposit until the time the tenant discontinues
service with the governing body. Whenever any rates, fees, rentals
or charges for services or facilities furnished remain unpaid for
a period of twenty days after the same they become due and payable, the user of the services and facilities provided is delinquent. and
the The user is liable at law until all rates, fees and charges are
fully paid. The governing body may, under reasonable rules
promulgated by the Public Service Commission, shut off and
discontinue water services to a delinquent user of sewer facilities
ten days after the sewer services become delinquent regardless of
whether the governing body utilizes the security deposit to satisfy
any delinquent payments.
(f) Such rates, fees or charges shall be sufficient in each
year for the payment of the proper and reasonable expense of
operation, repair, replacements and maintenance of the works and
for the payment of the sums herein required to be paid into the
sinking fund. Revenues collected pursuant to this section shall be
considered the revenues of the works.
(g) No such rates, fees or charges shall be established until
after a public hearing, at which all the users of the works and
owners of property served or to be served thereby and others
interested shall have an opportunity to be heard concerning the
proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates,
fees or charges, and before the same is finally enacted, notice of
such hearing, setting forth the proposed schedule of such rates,
fees or charges, shall be given by publication as a Class II-0
legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for
such publication shall be the municipality. The first publication
shall be made at least ten days before the date fixed in such the
notice for the hearing.
(i) After such the hearing, which may be adjourned, from time
to time, the ordinance establishing rates, fees or charges, either
as originally introduced or as modified and amended, shall be
passed and put into effect. A copy of the schedule of such the
rates, fees and charges so established shall be kept on file in the
office of the board having charge of the operation of such works,
and also in the office of the clerk of the municipality, and shall
be open to inspection by all parties interested. The rates, fees
or charges so established for any class of users or property served
shall be extended to cover any additional premises thereafter
served which fall within the same class, without the necessity of
any hearing or notice.
(j) Any change or readjustment of such rates, fees or charges
may be made in the same manner as such the rates, fees or charges
were originally established as hereinbefore provided: Provided,
That if such a change or readjustment be made substantially pro
rata, as to all classes of service, no hearing or notice shall be
required. The aggregate of the rates, fees or charges shall always
be sufficient for such the expense of operation, repair and
maintenance and for such the sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall
constitute a lien upon the premises served by such works. If any
service rate, fees or charge so established is not paid within
twenty days after the same it is due, the amount thereof, together
with a penalty of ten percent, and a reasonable attorney's fee, may
be recovered by the board in a civil action in the name of the
municipality. and in connection with such action said The lien may
be foreclosed against such lot, parcel of land or building, in
accordance with the laws relating thereto. Provided, That where
Where both water and sewer services are furnished by any
municipality to any premises the schedule of charges may be billed
as a single amount or individually itemized and billed for the
aggregate thereof.
(l) Whenever any rates, rentals, fees or charges for services
or facilities furnished shall remain unpaid for a period of twenty
days after the same shall they become due and payable, the property
and the owner thereof, as well as the user of the services and
facilities shall be delinquent until such time as all rates, fees
and charges are fully paid. When any payment for rates, rentals,
fees or charges becomes delinquent, the governing body may use the
security deposit to satisfy the delinquent payment.
(m) The board collecting such the rates, fees or charges shall
be obligated under reasonable rules to shut off and discontinue
both water and sewer services to all delinquent users of either water, facilities, or sewer facilities or both stormwater
facilities and shall not restore either water facilities or sewer
facilities to any delinquent user of any such facilities until all
delinquent rates, fees or charges for both water facilities, and
sewer and stormwater
facilities, including reasonable interest and
penalty charges, have been paid in full, as long as such actions
are not contrary to any rules or orders of the Public Service
Commission.
§16-13-23a. Additional powers of municipality
to cease pollution.
(a) Notwithstanding any other provision contained in this
article, and in addition thereto, the governing body of any
municipal corporation municipality which has received or which
hereafter receives an order issued by the Director of the Division
of Secretary of the Department of Environmental Protection or the
Environmental Quality Board requiring such municipal corporation
the municipality to cease the pollution of any stream or waters, is
hereby authorized and empowered to fix, establish and maintain, by
ordinance, just and equitable rates, fees or charges for the use of
the services and facilities of the existing municipal sewer system
and/or and/or stormwater system of such municipal corporation,
and/or or for the use of the services and facilities to be rendered
upon completion of any works and system necessary by virtue of said
order, to be paid by the owner, tenant or occupant of each and
every lot or parcel of real estate or building that is connected with and uses any part of such sewer system or stormwater system,
or that in any way uses or is served thereby, and may change and
readjust such rates, fees or charges from time to time.
(b) Such The rates, fees or charges shall be sufficient for
the payment of to all the proper and reasonable costs and expenses
of the acquisition and construction of plants, machinery and works
for the collection, and/or treatment, purification and disposal of
sewage or stormwater and the repair, alteration and extension of
existing sewer facilities or stormwater facilities, as may be
necessary to comply with such order of the Director of the Division
Secretary of the Department of Environmental Protection or the
Environmental Quality Board, and for the operation, maintenance and
repair of the entire works and system.
(c) The governing body shall create, by ordinance, a sinking
fund to accumulate and hold any part or all of the proceeds derived
from rates or charges until completion of the construction, to be
remitted to and administered by the Municipal Bond Commission by
expending and paying the costs and expenses of construction and
operation in the manner as provided by said ordinance.
(d) After the completion of the construction such the rates,
fees or charges shall be sufficient in each year for the payment of
the proper and reasonable costs and expenses of operation,
maintenance, repair, replacement and extension, from time to time,
of the entire sewer and works or entire stormwater works.
(e) No such rates, fees or charges shall be established until
after a public hearing, at which all the potential users of the
works and owners of property served or to be served thereby and
others shall have had an opportunity to be heard concerning the
proposed rates or charges.
(f) After introduction of the ordinance fixing rates, fees or
charges, and before the same is finally enacted, notice of such
hearing, setting forth the proposed schedule of rates, fees or
charges, shall be given by publication of notice as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. and the The publication
area for such publication is the municipality. The first
publication shall be made at least ten days before the date fixed
therein for the hearing.
(g) After such hearing, which may be adjourned from time to
time, the ordinance establishing the rates, fees or charges, either
as originally introduced or as modified and amended, may be passed
and put into effect. A copy of the schedule of the rates, fees and
charges so established shall be kept on file in the office of the
sanitary board having charge of the construction and operation of
such works and also in the office of the clerk of the municipality.
and The schedule of rates, fees and charges shall be open to
inspection by all parties interested. The rates, fees or charges
so established for any class of users or property served shall be extended to cover any additional premises thereafter served which
fall within the same class, without the necessity of any hearing or
notice.
(h) Any change or readjustment of rates, fees or charges may
be made in the same manner as rates, fees or charges were
originally established as hereinbefore provided: Provided, That if
such change or readjustment be made substantially pro rata, as to
all classes of service, no hearing or notice is required.
(i) If any rate, fee or charge so established is not paid
within thirty days after the same it is due, the amount thereof,
together with a penalty of ten percent, and a reasonable attorney's
fee, may be recovered by the sanitary board of such municipal
corporation the municipality in a civil action in the name of the
municipality.
(j) Any municipal corporation municipality exercising the
powers given herein has the authority to construct, acquire,
improve, equip, operate, repair and maintain any plants, machinery
or works necessary to comply with the order of the Director of the
Division Secretary of the Department of Environmental Protection or
the Environmental Quality Board and the authority provided herein
to establish, maintain and collect rates, fees or charges is an
additional and alternative method of financing such works and
matters, and is independent of any other provision of this article
insofar as the article provides for or requires the issuance of revenue bonds or the imposition of rates, fees and charges in
connection with the bonds: Provided, That except for the method of
financing such works and matters, the construction, acquisition,
improvement, equipment, custody, operation, repair and maintenance
of any plants, machinery or works in compliance with an order of
the Director of the Division Secretary of the Department of
Environmental Protection or the Environmental Quality Board and the
rights, powers and duties of the municipal corporation municipality
and the respective officers and departments thereof, including the
sanitary board, are governed by the provisions of this article.
Provided, however, That the
(k) The jurisdiction and authority provided by this section
does not extend to highways, road and drainage easements and/or and
stormwater facilities constructed, owned and/or or operated by the
West Virginia Division of Highways and no rates, fees or charges
for stormwater services or costs of compliance may be assessed
against highways, road and drainage easements and/or stormwater
facilities constructed, owned and/or operated by the West Virginia
Division of Highways.
(l) A municipality which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community, as defined in 40 C.
F. R. §122.26, has the authority to enact ordinances or regulations
which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties
regarding correction of violations of municipal stormwater
ordinances or regulations within the municipal watershed served by
the municipal stormwater system, as long as such rules,
regulations, fines or actions are not contrary to any rules or
orders of the Public Service Commission.
(m) Notice of a violation of a municipal stormwater ordinance
or regulation shall be served in person to the alleged violator or
by certified mail, return receipt requested. The notice shall
state the nature of the violation, the potential penalty, the
action required to correct the violation and the time limit for
making the correction. Should a person, after receipt of proper
notice, fail to correct the violation of the municipal stormwater
ordinance or regulation, the municipality may make or have made the
corrections of the violation and bring the party into compliance
with the applicable stormwater ordinance or regulation. The
municipality may collect the costs of correcting the violation from
the person by instituting a civil action, as long as such actions
are not contrary to any rules or orders of the Public Service
Commission.
(n) A municipality which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community shall prepare an
annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the
place of business of the governing body and the stormwater utility
main office.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; required water and sewer connections; lien
for delinquent fees.
(a) (1) The board may make, enact and enforce all needful
rules in connection with the acquisition, construction,
improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or
controlled by the district. The board shall establish rates, fees
and charges for the services and facilities it furnishes, which
shall be sufficient at all times, notwithstanding the provisions of
any other law or laws, to pay the cost of maintenance, operation
and depreciation of the public service properties and principal of
and interest on all bonds issued, other obligations incurred under
the provisions of this article and all reserve or other payments
provided for in the proceedings which authorized the issuance of
any bonds under this article. The schedule of the rates, fees and
charges may be based upon:
(A) The consumption of water or gas on premises connected with
the facilities, taking into consideration domestic, commercial,
industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the
facilities located on the various premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this
subdivision; or
(E) May be determined on any other basis or classification
which the board may determine to be fair and reasonable, taking
into consideration the location of the premises served and the
nature and extent of the services and facilities furnished.
However, no rates, fees or charges for stormwater services may be
assessed against highways, road and drainage easements or
stormwater facilities constructed, owned or operated by the West
Virginia Division of Highways.
(2) Where water, sewer, stormwater or gas services, or any
combination thereof, are all furnished to any premises, the
schedule of charges may be billed as a single amount for the
aggregate of the charges. The board shall require all users of
services and facilities furnished by the district to designate on
every application for service whether the applicant is a tenant or
an owner of the premises to be served. If the applicant is a
tenant, he or she shall state the name and address of the owner or
owners of the premises to be served by the district.
Notwithstanding the provisions of section eight, article three,
chapter twenty-four of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to
two twelfths of the average annual usage of the applicant's
specific customer class or fifty dollars, with the district to
secure the payment of service rates, fees and charges in the event
they become delinquent as provided in this section. If a district
provides both water and sewer service, all new applicants for
service shall deposit the greater of a sum equal to two twelfths of
the average annual usage for water service or fifty dollars and the
greater of a sum equal to two twelfths of the average annual usage
for wastewater service of the applicant's specific customer class
or fifty dollars. In any case where a deposit is forfeited to pay
service rates, fees and charges which were delinquent at the time
of disconnection or termination of service, no reconnection or
reinstatement of service may be made by the district until another
deposit equal to the greater of a sum equal to two twelfths of the
average usage for the applicant's specific customer class or fifty
dollars has been remitted to the district. After twelve months of
prompt payment history, the district shall return the deposit to
the customer or credit the customer's account at a rate as the
Public Service Commission may prescribe: Provided, That where the
customer is a tenant, the district is not required to return the
deposit until the time the tenant discontinues service with the
district. Whenever any rates, fees, rentals or charges for
services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the user of the
services and facilities provided is delinquent and the user is
liable at law until all rates, fees and charges are fully paid.
The board may, under reasonable rules promulgated by the Public
Service Commission, shut off and discontinue water or gas services
to all delinquent users of either water or gas facilities, or both,
ten days after the water or gas services become delinquent.
(b) In the event that any publicly or privately owned utility,
city, incorporated town, other municipal corporation or other
public service district included within the district owns and
operates separately either water facilities, or sewer facilities or
stormwater facilities and the district owns and operates the other
another kind of facilities facility either water or sewer, or both,
as the case may be, then the district and the publicly or privately
owned utility, city, incorporated town or other municipal
corporation or other public service district shall covenant and
contract with each other to shut off and discontinue the supplying
of water service for the nonpayment of sewer or stormwater service
fees and charges: Provided, That any contracts entered into by a
public service district pursuant to this section shall be submitted
to the Public Service Commission for approval. Any public service
district providing which provides water and sewer service, to its
customers water and stormwater service or water, sewer and
stormwater service has the right to terminate water service for delinquency in payment of either water, or sewer or stormwater
bills. Where one public service district is providing sewer
service and another public service district or a municipality
included within the boundaries of the sewer or stormwater district
is providing water service and the district providing sewer or
stormwater service experiences a delinquency in payment, the
district or the municipality included within the boundaries of the
sewer or stormwater district that is providing water service, upon
the request of the district providing sewer or stormwater service
to the delinquent account, shall terminate its water service to the
customer having the delinquent sewer or stormwater account:
Provided, however, That any termination of water service must
comply with all rules and orders of the Public Service Commission.
(c) Any district furnishing sewer facilities within the
district may require, or may by petition to the circuit court of
the county in which the property is located, compel or may require
the Division of Health to compel all owners, tenants or occupants
of any houses, dwellings and buildings located near any sewer
facilities where sewage will flow by gravity or be transported by
other methods approved by the Division of Health, including, but
not limited to, vacuum and pressure systems, approved under the
provisions of section nine, article one, chapter sixteen of this
code, from the houses, dwellings or buildings into the sewer
facilities, to connect with and use the sewer facilities and to cease the use of all other means for the collection, treatment and
disposal of sewage and waste matters from the houses, dwellings and
buildings where there is gravity flow or transportation by any
other methods approved by the Division of Health, including, but
not limited to, vacuum and pressure systems, approved under the
provisions of section nine, article one, chapter sixteen of this
code and the houses, dwellings and buildings can be adequately
served by the sewer facilities of the district and it is declared
that the mandatory use of the sewer facilities provided for in this
paragraph is necessary and essential for the health and welfare of
the inhabitants and residents of the districts and of the state.
If the public service district requires the property owner to
connect with the sewer facilities even when sewage from dwellings
may not flow to the main line by gravity and the property owner
incurs costs for any changes in the existing dwellings' exterior
plumbing in order to connect to the main sewer line, the Public
Service District Board shall authorize the district to pay all
reasonable costs for the changes in the exterior plumbing,
including, but not limited to, installation, operation, maintenance
and purchase of a pump or any other method approved by the Division
of Health. Maintenance and operation costs for the extra
installation should be reflected in the users charge for approval
of the Public Service Commission. The circuit court shall
adjudicate the merits of the petition by summary hearing to be held not later than thirty days after service of petition to the
appropriate owners, tenants or occupants.
(d) Whenever any district has made available sewer facilities
to any owner, tenant or occupant of any house, dwelling or building
located near the sewer facility and the engineer for the district
has certified that the sewer facilities are available to and are
adequate to serve the owner, tenant or occupant and sewage will
flow by gravity or be transported by other methods approved by the
Division of Health from the
house, dwelling or building into the
sewer facilities, the district may charge, and the owner, tenant or
occupant shall pay, the rates and charges for services established
under this article only after thirty-day notice of the availability
of the facilities has been received by the owner, tenant or
occupant. Rates and charges for sewage services shall be based
upon actual water consumption or the average monthly water
consumption based upon the owner's, tenant's or occupant's specific
customer class.
(e) Whenever any district has made available a stormwater
system to any owner, tenant or occupant of any real property
located near the stormwater system and where stormwater from real
property affects or drains into the stormwater system, it is hereby
found, determined and declared that the owner, tenant or occupant
is being served by the stormwater system and it The owner, tenant
or occupant of any real property may be determined and declared to be served by a stormwater system only after each of the following
conditions is met: (1) The district has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community, as defined in 40 C.
F. R. §122.26; (2) the district's authority has been properly
expanded to operate and maintain a stormwater system; (3) the
district has made available a stormwater system where stormwater
from the real property affects or drains into the stormwater
system; and (4) the real property is located in the Municipal
Separate Storm Sewer System's designated service area. It is
further hereby found, determined and declared that the mandatory
use of the stormwater system is necessary and essential for the
health and welfare of the inhabitants and residents of the district
and of the state. The district may charge, and the owner, tenant
or occupant shall pay the rates, fees and charges for stormwater
services established under this article only after thirty-day
notice of the availability of the stormwater system has been
received by the owner.
An entity providing stormwater service
shall provide a tenant a report of the stormwater fee charged for
the entire property and, if appropriate, that portion of the fee to
be assessed to the tenant.
(f) All delinquent fees, rates and charges of the district for
either water facilities, sewer facilities, gas facilities or
stormwater systems or stormwater management programs are liens on the premises served of equal dignity, rank and priority with the
lien on the premises of state, county, school and municipal taxes.
In addition to the other remedies provided in this section, public
service districts are granted a deferral of filing fees or other
fees and costs incidental to the bringing and maintenance of an
action in magistrate court for the collection of delinquent water,
sewer, stormwater or gas bills. If the district collects the
delinquent account, plus reasonable costs, from its customer or
other responsible party, the district shall pay to the magistrate
the normal filing fee and reasonable costs which were previously
deferred. In addition, each public service district may exchange
with other public service districts a list of delinquent accounts:
Provided, That an owner of real property may not be held liable for
the delinquent rates or charges for services or facilities of a
tenant, nor may any lien attach to real property for the reason of
delinquent rates or charges for services or facilities of a tenant
of the real property, unless the owner has contracted directly with
the public service district to purchase the services or facilities.
(g) Anything in this section to the contrary notwithstanding,
any establishment, as defined in section three, article eleven,
chapter twenty-two of this code, now or hereafter operating its own
sewage disposal system pursuant to a permit issued by the
Department of Environmental Protection, as prescribed by section
eleven, article eleven, chapter twenty-two of this code, is exempt from the provisions of this section.
(h) A public service district which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community shall prepare an
annual report detailing the collection and expenditure of rates,
fees or charges and make it available for public review at the
place of business of the governing body and the stormwater utility
main office.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 323, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and
Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Facemyer, Hall, Sprouse, Sypolt
and Yoder--7.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 323) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 503, Requiring solid waste facility
permit applicants furnish fingerprints for criminal background
checks.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the
division department. Subject to section seven of this article and
other provisions of law, the secretary shall organize the
department into such offices, sections, agencies and other units of
activity as may be found by the secretary to be desirable for the
orderly, efficient and economical administration of the department
and for the accomplishment of its objects and purposes. The
secretary may appoint a deputy secretary, chief of staff, assistants, hearing officers, clerks, stenographers and other
officers, technical personnel and employees needed for the
operation of the department and may prescribe their powers and
duties and fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate
supervisory officers or other officers or employees of the
department to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any
hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the secretary. The secretary has the power to
delegate, as he or she considers appropriate, to supervisory
officers or other officers or employees of the department his or
her powers, duties, authority and responsibility relating to
issuing permits, hiring and training inspectors and other employees
of the department, conducting hearings and appeals and such other
duties and functions set forth in this chapter or elsewhere in this
code.
(c) The secretary has responsibility for the conduct of the
intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner
which supplements and complements the environmental policies,
programs and procedures of the federal government, other state
governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the division
department consult with individuals responsible for making policy
relating to environmental issues in the federal government, other
state governments and other instrumentalities of this state
concerning differences over environmental policies, programs and
procedures and concerning the impact of statutory law and rules
upon the environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the secretary by this chapter, the
secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
Department of Environmental Protection any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations, partnerships
or individuals: Provided, That the powers granted to the secretary
to enter into agreements or contracts and to make expenditures and
obligations of public funds under this subdivision may not exceed
or be interpreted as authority to exceed the powers granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of
statutes or rules which the division department is charged with
enforcing; to serve and execute warrants and processes; to make
arrests; issue orders, which for the purposes of this chapter
include consent agreements; and to otherwise enforce the statutes
or rules which the division department is charged with enforcing;
(4) Require any applicant or holder of a permit to install,
establish, modify, operate or close a solid waste facility to
furnish the fingerprints of the applicant or permittee; any
officer, director or manager of the applicant or permittee; any
person owning a five percent or more interest, beneficial or
otherwise, in the applicant's or permittee's business; or any other
person conducting or managing the affairs of the applicant or
permittee or of the proposed licensed premises, in whole or in
part. These fingerprints may be used to obtain and review any
police record for the purposes that may be relevant pursuant to
section five, article fifteen of this chapter, and to use the
fingerprints furnished to conduct a criminal records check through
the Criminal Identification Bureau of the West Virginia State
Police and a national criminal history check through the Federal
Bureau of Investigation. The results of the checks shall be
provided to the secretary.
(4) (5) Acquire for the state in the name of the Department of Environmental Protection by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
Department of Environmental Protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in property;
(5) (6) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to ensure adequate standards of
public service in the department. The secretary may provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The secretary is
authorized to pay out of federal or state funds, or both, as such
funds are available, fees and expenses incidental to such the
educational programs, training and instruction. Eligibility for
participation by employees will shall be in accordance with
guidelines established by the secretary;
(6) (7) Issue certifications required under 33 U. S. C. §1341
of the federal Clean Water Act and enter into agreements in
accordance with the provisions of section seven-a, article eleven
of this chapter. Prior to issuing any certification the secretary
shall solicit from the Division of Natural Resources reports and
comments concerning the possible certification. The Division of
Natural Resources shall direct the reports and comments to the secretary for consideration; and
(7) (8) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the secretary and the department, including, but not limited to,
representing the secretary, any chief, the department or any office
thereof in any administrative proceeding or in any proceeding in
any state or federal court. Additionally, the secretary may call
upon the Attorney General for legal assistance and representation
as provided by law.
(e) The secretary shall be appointed by the Governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the Governor.
(f) At the time of his or her initial appointment, the
secretary must be at least thirty years old and must shall be
selected with special reference and consideration given to his or
her administrative experience and ability, to his or her
demonstrated interest in the effective and responsible regulation
of the energy industry and the conservation and wise use of natural
resources. The secretary must have at least a bachelor's degree in
a related field and at least three years of experience in a
position of responsible charge in at least one discipline relating
to the duties and responsibilities for which the secretary will be
responsible upon assumption of the office. The secretary may not
be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately
forfeit and vacate his or her office as secretary in the event he
or she becomes a candidate for or accepts appointment to any other
public office or political party committee.
(g) The secretary shall receive an annual salary as provided
in section two-a, article seven, chapter six of this code and will
be is allowed and shall be paid necessary expenses incident to the
performance of his or her official duties. Prior to the assumption
of the duties of his or her office, the secretary shall take and
subscribe to the oath required of public officers prescribed by
section five, article IV of the Constitution of West Virginia and
shall execute a bond, with surety approved by the Governor, in the
penal sum of ten thousand dollars, which executed oath and bond
will be filed in the Office of the Secretary of State. Premiums on
the bond will shall be paid from the department funds.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 503, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 503) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 504, Relating
to child support enforcement.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting clause and
inserting in lieu thereof the following:
That
§38-3-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §48-1-205, §48-1-225, §48-1-230 and
§48-1-302 of said code be amended and reenacted; that §48-11-103
and §48-11-105 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §48-13-
804; that §48-14-102, §48-14-106, §48-14-203, §48-14-302, §48-14-
404, §48-14-407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and
§48-14-801 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §48-14-108;
that §48-15-201 of said code be amended and reenacted; that §48-17-
101, §48-17-102, §48-17-103, §48-17-105, §48-17-106, §48-17-107 and
§48-17-109 of said code be amended and reenacted; that §48-18-102,
§48-18-118, §48-18-120, §48-18-202, §48-18-205 and §48-18-206 of
said code be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §48-18-118a, all to
read as follows:
CHAPTER 38. LIENS.
ARTICLE 3. JUDGMENT LIENS.
§38-3-18. Limitations on enforcement of judgments.
(a) On a judgment, execution may be issued within ten years
after the date thereof. Where execution issues within ten years as
aforesaid, other executions may be issued on such judgment within
ten years from the return day of the last execution issued thereon,
on which there is no return by an officer, or which has been
returned unsatisfied.
(b) For any order for child support in an action filed on and
after the amendment and reenactment of this section during the
legislative session of two thousand eight, an execution may be issued upon a judgment for child support, as those terms are
defined in chapter forty-eight of this code, within ten years after
the emancipation of the child: Provided, That in cases where the
support order is for more than one child, the limitations set forth
in subsection (a) of this section commence when the youngest child
who is the subject of the order on which the execution is based
reaches the age of eighteen or is otherwise legally emancipated.
(c)An action, suit or scire facias may be brought upon a
judgment where there has been a change of parties by death or
otherwise at any time within ten years next after the date of the
judgment; or within ten years from the return day of the last
execution issued thereon on which there is no return by an officer
or which has been returned unsatisfied. But if such action, suit
or scire facias be against the personal representative of a
decedent, it shall be brought within five years from the
qualification of such representative.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a
parent but which may be attributed to the parent because he or she
is unemployed, is not working full time or is working below full
earning capacity or has nonperforming or underperforming assets.
Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving
consideration to relevant evidence that pertains to the parent's
work history, qualifications, education and physical or mental
condition) and determines that the parent is unemployed, is not
working full time or is working below full earning capacity.
Income may also be attributed to a parent if the court finds that
the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full earning capacity;
(2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is not
seeking employment in the manner that a reasonably prudent person
in his or her circumstances would do, then an alternative method
for the court to determine gross income is to attribute to the
person an earning capacity based on his or her previous income. If
the obligor's work history, qualifications, education or physical
or mental condition cannot be determined, or if there is an
inadequate record of the obligor's previous income, the court may,
as a minimum, base attributed income on full-time employment (at
forty hours per week) at the federal minimum wage in effect at the
time the support obligation is established. In order for the court
to consider attribution of income, it is not necessary for the
court to find that the obligor's termination or alteration of employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below full
earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom both of the parties owe a joint legal responsibility for
support and such children are of preschool age or are handicapped
or otherwise in a situation requiring particular care by the
parent;
(2) The parent is pursing a plan of economic self-improvement
which will result, within a reasonable time, in an economic benefit
to the children to whom the support obligation is owed, including,
but not limited to, self-employment or education: Provided, That
if the parent is involved in an educational program, the court
shall ascertain that the person is making substantial progress
toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances
exist which would make the attribution of income inequitable:
Provided, That in such case the court may decrease the amount of
attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming
or underperforming assets, other than the parent's primary residence. Assets may be considered to be nonperforming or
underperforming to the extent that they do not produce income at a
rate equivalent to the current six-month certificate of deposit
rate or such other rate that the court determines is reasonable.
§48-1-225. Extraordinary medical expenses defined.
"Extraordinary medical expenses" means uninsured medical
expenses in excess of two hundred fifty dollars per year per child
which are recurring and can reasonably be predicted by the court at
the time of establishment or modification of a child support order.
Such expenses shall include, but not be limited to, insurance
copayments and deductibles, reasonable costs for necessary
orthodontia, dental treatment, asthma treatments, physical therapy,
prescription pharmaceuticals, vision therapy and eye care and any
uninsured chronic health problem.
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income
due or to be due in the future to an individual from his or her
employer and successor employers;
(2) Any payment due or to be due in the future to an
individual from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, Social Security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes and overtime pay;
(3) Any amount of money which is owing to an individual as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency, this
state or any political subdivision of this state, any other state
or a political subdivision of another state or any other legal
entity which is indebted to the obligor;
(4) Any amount of money which is held by the Regional Jail
Authority for an inmate in an inmate's concession account.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an
obligation to pay interest arises under this chapter, the rate of
interest is ten five percent per annum and proportionate thereto
for a greater or lesser sum, or for a longer or shorter time.
Interest awarded shall only be simple interest and nothing in this
section may be construed to permit awarding of compound interest.
Interest accrues only upon the outstanding principal of such
obligation.
(b) Notwithstanding any other provision of law, no court may
award or approve prejudgment interest in a domestic relations
action against a party unless the court finds, in writing, that the
party engaged in conduct that would violate subsection (b), Rule 11
of the West Virginia Rules of Civil Procedure. If prejudgment
interest is awarded, the court shall calculate prejudgment interest
from the date the offending representation was presented to the court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may
petition the court to enter an order conditionally suspending the
collection of all or part of the interest that has accrued on
past-due child support prior to the date of the agreement:
Provided, That said agreement shall also establish a reasonable
payment plan which is calculated to fully discharge all arrearages
within twenty-four months. Upon successful completion of the
payment plan, the court shall enter an order which permanently
relieves the obligor of the obligation to pay the accrued interest.
If the obligor fails to comply with the terms of the written
agreement, then the court shall enter an order which reinstates the
accrued interest.
(d) Amendments to this section enacted by the Legislature
during the two thousand six regular session shall become effective
the first day of January, two thousand seven.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a) Upon a specific finding of good cause shown and upon
findings of fact and conclusions of law in support thereof, a An
order for child support may shall provide that payments of such
support continue beyond the date when the child reaches the age of
eighteen, so long as the child is unmarried and residing with a
parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making
substantial progress towards a diploma: Provided, That such
payments may not extend past the date that the child reaches the
age of twenty.
(b) Nothing herein shall be construed to abrogate or modify
existing case law regarding the eligibility of handicapped or
disabled children to receive child support beyond the age of
eighteen.
(c) The reenactment of this section during the regular session
of the Legislature in the year one thousand nine hundred
ninety-four shall not, by operation of law, have any effect upon or
vacate any order or portion thereof entered under the prior
enactment of this section which awarded educational and related
expenses for an adult child accepted or enrolled and making
satisfactory progress in an educational program at a certified or
accredited college. Any such order or portion thereof shall
continue in full force and effect until the court, upon motion of
a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of
the original order have changed, in which case the order may be
modified;
(2) The facts and circumstances which supported the entry of
the original order no longer exist because the child has not been
accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college or the
parent ordered to pay such educational and related expenses is no
longer able to make such payments, in which case the order shall be
vacated;
(3) The child, at the time the order was entered, was under
the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an
application of child support guidelines in accordance with the
provisions of article 13-101, et seq., of this chapter, or
legislative rules promulgated thereunder, in which case the order
may be modified or vacated; or
(5) The order was entered after the fourteenth day of March,
one thousand nine hundred ninety-four, in which case the order
shall be vacated.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the
benefit of the child, when a motion is made that alleges a change
in the circumstances of a parent or another proper person or
persons. A motion for modification of a child support order may be
brought by a custodial parent or any other lawful custodian or
guardian of the child, by a parent or other person obligated to pay
child support for the child or by the Bureau for Child Support
Enforcement of the Department of Health and Human Resources of this
state.
(b) The provisions of the order may be modified if there is a
substantial change in circumstances. If application of the
guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered a
substantial change.
(c) An order that modifies the amount of child support to be
paid shall conform to the support guidelines set forth in article
13-101, et seq., of this chapter unless the court disregards the
guidelines or adjusts the award as provided for in section 13-702.
(d) The Supreme Court of Appeals shall make available to the
courts a standard form for a petition for modification of an order
for support, which form will allege that the existing order should
be altered or revised because of a loss or change of employment or
other substantial change affecting income or that the amount of
support required to be aid is not within fifteen percent of the
child support guidelines. The clerk of the circuit court and the
secretary-clerk of the family court shall make the forms available
to persons desiring to represent themselves in filing a motion for
modification of the support award.
(e) Upon entry of an order modifying a child support amount
the court shall, no later than five days from entry of the order,
provide a copy of the modified order to the Bureau for Child
Support Enforcement. If an overpayment to one of the parties
occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement
pursuant the terms of the original order shall not be returned
until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which support is to be established,
if a party has been served with proper pleadings and notified of
the date, time and place of a hearing before a family court judge
and does not enter an appearance or file a response, the family
court judge shall prepare a default order for entry establishing
the defaulting party's child support obligation consistent with the
child support guidelines contained in this article.
(1) When applying the child support guidelines, the court may
accept financial information from the other party as accurate,
pursuant to Rule 13(b) of the Rules of Practice and Procedure for
Family Court; or
(2) If financial information is not available, the court may
attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal
amount unless, in the court's discretion, a zero support order
should be entered.
(b) All orders shall provide for automatic withholding from
income of the obligor pursuant to Part 4, article fourteen of this
chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section
14-101 by:
(1)A custodial parent of a child when the divorce order or
other order which granted custody did not make provision for the
support of the child by the obligor;
(2)A primary caretaker of a child;
(3)A guardian of the property of a child or the committee
for a child; or
(4)The Bureau for Child Support Enforcement, on behalf of
the state, when the Department of Health and Human Resources is
providing assistance on behalf of the child or the person to whom
a duty of support is owed, in the form of temporary assistance to
needy families or medical assistance, and any right to support has
been assigned to the department or in any other case wherein a
party has applied for child support enforcement services from the
Bureau for Child Support Enforcement.
§48-14-106. Modification of support order.
(a)At any time after the entry of an order for support, the
court may, upon the verified petition of an obligee or the obligor, revise or alter such order and make a new order as the altered
circumstances or needs of a child, an obligee or the obligor may
render necessary to meet the ends of justice.
(b) The Supreme Court of Appeals shall make available to the
family courts a standard form for a petition for modification of an
order for support, which form will allege that the existing order
should be altered or revised because of a loss or change of
employment or other substantial change affecting income or that the
amount of support required to be paid is not within fifteen percent
of the child support guidelines. The clerk of the circuit court
and the secretary-clerk of the family court shall make such forms
available to persons desiring to petition the court pro se for a
modification of the support award.
(c) Upon entry of an order modifying a child support amount
the court shall, no later than five days from entry of the order,
provide a copy of the modified order to the Bureau for Child
Support Enforcement. If an overpayment to one of the parties
occurs as a result of the modified terms of the order, funds
properly withheld by the Bureau for Child Support Enforcement
pursuant the terms of the original order shall not be returned
until such time as the Bureau for Child Support Enforcement
receives repayment from the party in possession of the overpayment.
§48-14-108. Deceased parties in support cases.
(a) In the event of the death of any party to a domestic relations support action, support payments or a refund of support
payments due to the party by the obligee, obligor or the Bureau for
Child Support Enforcement, not in excess of one thousand dollars,
may, upon proper demand, be paid, in the absence of actual notice
of the pendency of probate proceedings, without requiring letters
testamentary or of administration in the following order of
preference to decedent's:
(1) Surviving spouse;
(2) Children eighteen years of age and over in equal shares;
(3) Father and mother, or survivor; and
(4) Sisters and brothers.
(b) Payments under this section shall release and discharge
the obligee, obligor or the Bureau for Child Support Enforcement to
the amount of such payment.
§48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support may be filed with the
clerk of the circuit court in the county in which the obligee or
the obligor resides, in the county where the order originated or
where the obligor's source of income is located.
The affidavit may be filed when a payment required by such
order has been delinquent, in whole or in part, for a period of
fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and shall list the last four digits of the obligor's Social Security
number or numbers, if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) State the total amount of accrued support which has not
been paid by the obligor; and
(4) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment; and
(5) (4) State the name and address of the obligor's source of
income, if known.
§48-14-302. Affidavit of accrued support.
The affidavit and abstract as provided in section four,
article three, chapter thirty-eight of this code shall be filed
with the clerk of the county commission in which the real property
is located or in the county where the order originated. The
affidavit shall:
(1) Identify the obligee and obligor by name and address, and
shall list the last four digits of the obligor's Social Security
number or numbers, if known;
(2) Name the court which entered the support order and set
forth the date of such entry;
(3) Allege that the support obligor is at least thirty days in
arrears in the payment of child support; and
(4) State the total amount of accrued support which has not
been paid by the obligor. and
(5) List the date or dates when support payments should have
been paid but were not, and the amount of each such delinquent
payment.
§48-14-404. Enforcement of withholding by Bureau for Child
Support Enforcement.
The withholding from an obligor's income of amounts payable as
spousal or child support or fees awarded by a court of competent
jurisdiction to the state in connection with the establishment of
paternity and support or the enforcement of a support order shall
be enforced by the Bureau for Child Support Enforcement in
accordance with the provisions of part 4 of this article. If an
overpayment of spousal or child support occurs and an arrearage
exists, the Bureau for Child Support Enforcement shall first offset
the overpayment of spousal or child support against the arrearage.
If no arrearage exists with which to offset the overpayment or the
arrearage is not sufficient to offset the overpayment and the
obligee does not enter into a repayment agreement with the Bureau
for Child Support Enforcement, the Bureau for Child Support
Enforcement may issue an income withholding to the obligee's
employer to recoup the amount of the overpayment. The income
withholding shall be in the same manner as provided in this
article: Provided, That in no circumstances may the amount withheld exceed thirty-five percent of the disposable earnings for
the period, regardless of the length of time that the overpayment
has been owed.
§48-14-407. Contents of notice to source of income.
(a) The source of income of any obligor who is subject to
withholding, upon being given notice of withholding, shall withhold
from such obligor's income the amount specified by the notice and
pay such amount to the Bureau for Child Support Enforcement for
distribution. The notice given to the source of income shall
contain only such information as may be necessary for the source of
income to comply with the withholding order and no source of income
may require additional information or documentation. Such notice
to the source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable
earnings and a statement that the amount to be withheld for support
and other purposes, including the fee specified under subdivision
(3) of this subsection, may not be in excess of the maximum amounts
permitted under Section 303(b) of the federal Consumer Credit
Protection Act or limitations imposed under the provisions of this
code;
(2) That the source of income shall send the amount to be
withheld from the obligor's income to the Bureau for Child Support
Enforcement, along with such identifying information as may be
required by the bureau, the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the
provisions of subdivision (1) of this subsection, the source of
income may deduct a fee, not to exceed one dollar, for
administrative costs incurred by the source of income for each
withholding;
(4) That withholding is binding on the source of income until
further notice by the Bureau for Child Support Enforcement or until
the source of income notifies the Bureau for Child Support
Enforcement of a termination of the obligor's employment in
accordance with the provisions of section four hundred twelve of
this article;
(5) That the source of income is subject to a fine for
discharging an obligor from employment, refusing to employ or
taking disciplinary action against any obligor because of the
withholding;
(6) That when the source of income fails to withhold income in
accordance with the provisions of the notice, the source of income
is liable for the accumulated amount the source of income should
have withheld from the obligor's income;
(7) That the withholding under the provisions of this part
shall have priority over any other legal process under the laws of
this state against the same income and shall be effective despite
any exemption that might otherwise be applicable to the same
income;
(8) That when an employer has more than one employee who is an
obligor who is subject to wage withholding from income under the
provisions of this code, the employer may combine all withheld
payments to the Bureau for Child Support Enforcement when the
employer properly identifies each payment with the information
listed in this part. A source of income is liable to an obligee,
including the State of West Virginia or the Department of Health
and Human Resources where appropriate, for any amount which the
source of income fails to identify with the information required by
this part and is therefore not received by the obligee;
(9) That the source of income shall implement withholding no
later than the first pay period or first date for payment of income
that occurs after fourteen days following the date the notice to
the source of income was mailed; and
(10) That the source of income shall notify the Bureau for
Child Support Enforcement promptly when the obligor terminates his
or her employment or otherwise ceases receiving income from the
source of income and shall provide the obligor's last known address
and the name and address of the obligor's new source of income, if
known.
(b) The commission Bureau for Child Support Enforcement shall,
by administrative rule, establish procedures for promptly refunding
to obligors amounts which have been improperly withheld under the
provisions of this part. When a court reduces an order of support, the Bureau for Child Support Enforcement is not liable for
refunding amounts which have been withheld pursuant to a court
order enforceable at the time that the bureau received the funds
unless the funds were kept by the state. The obligee or obligor
who received the benefit of the withheld amounts shall be liable
for promptly refunding any amounts which would constitute an
overpayment of the support obligation.
§48-14-408. Determination of amounts to be withheld.
Notwithstanding any other provision of this code to the
contrary which provides for a limitation upon the amount which may
be withheld from earnings through legal process, the amount of an
obligor's aggregate disposable earnings for any given workweek
which may be withheld as support payments is to be determined in
accordance with the provisions of this subsection, as follows:
(1) After ascertaining the status of the payment record of the
obligor under the terms of the support order, the payment record
shall be examined to determine whether any arrearage is due for
amounts which should have been paid prior to a twelve-week period
which ends with the workweek for which withholding is sought to be
enforced.
(2) Prior to the first day of January, two thousand one, when
none of the withholding is for amounts which came due prior to such
twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed
withholding is being sought, the amount withheld may not exceed
fifty percent of the obligor's disposable earnings for that week;
and
(B) When the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty percent of the obligor's
disposable earnings for that week.
(3) Prior to the first day of January, two thousand one, when
a part of the withholding is for amounts which came due prior to
such twelve-week period, then:
(A) Where the obligor is supporting another spouse or
dependent child other than the spouse or child for whom the
proposed withholding is being sought, the amount withheld may not
exceed fifty-five percent of the obligor's disposable earnings for
that week; and
(B) Where the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed sixty-five percent of the
obligor's disposable earnings for that week.
(4) Beginning the first day of January, two thousand one, when
none of the withholding is for amounts which came due prior to such
twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed
withholding is being sought, the amount withheld may not exceed
forty percent of the obligor's disposable earnings for that week;
and
(B) When the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed fifty percent of the obligor's
disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when
a part of the withholding is for amounts which came due prior to
such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent
child other than the spouse or child for whom the proposed
withholding is being sought, the amount withheld may not exceed
forty-five percent of the obligor's disposable earnings for that
week; and
(B) Where the obligor is not supporting another spouse or
dependent child as described in paragraph (A) of this subdivision,
the amount withheld may not exceed fifty-five percent of the
obligor's disposable earnings for that week.
(6) In addition to the percentage limitations set forth in
subdivisions (2) and (3) of this section, it shall be a further
limitation that when the current month's obligation plus arrearages
are being withheld from salaries or wages in no case shall the total amounts withheld for the current month's obligation plus
arrearage exceed the amounts withheld for the current obligation by
an amount greater than twenty-five percent of the current monthly
support obligation.
(7) The provisions of this section shall apply directly to the
withholding of disposable earnings of an obligor regardless of
whether the obligor is paid on a weekly, biweekly, monthly or other
basis.
(8) The Bureau for Child Support Enforcement has the authority
to prorate the current support obligation in accordance with the
pay cycle of the source of income. This prorated current support
obligation shall be known as the "adjusted support obligation". The
current support obligation or the adjusted support obligation is
the amount, if unpaid, on which interest will be charged.
(9) When an obligor acts so as to purposefully minimize his or
her income and to thereby circumvent the provisions of part 4 of
this article which provide for withholding from income of amounts
payable as support, the amount to be withheld as support payments
may be based upon the obligor's potential earnings rather than his
or her actual earnings, and such obligor may not rely upon the
percentage limitations set forth in this subsection which limit the
amount to be withheld from disposable earnings.
(10) Notwithstanding any other provision of this section, the
Bureau for Child Support Enforcement may withhold not more than fifty percent of any earnings denominated as an employment-related
bonus to satisfy an outstanding child support arrearage.
§48-14-502. Willful failure or refusal to comply with order to
pay support.
If the court finds that the obligor willfully failed or
refused to comply with an order requiring the payment of support,
the court shall find the obligor in contempt and may do one or more
of the following:
(1) Require additional terms and conditions consistent with
the court's support order.
(2) After notice to both parties and a hearing, if requested
by a party, on any proposed modification of the order, modify the
order in the same manner and under the same requirements as an
order requiring the payment of support may be modified under the
provisions of Part 5-701, et seq. A modification sought by an
obligor, if otherwise justified, shall not be denied solely because
the obligor is found to be in contempt.
(3) Order that all accrued support and interest thereon be
paid under such terms and conditions as the court, in its
discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a
plan approved by the Bureau for Child Support Enforcement or to
participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section 1-304:
(A) Commit the contemnor to the county or regional jail; or
(B) Commit the contemnor to the county or regional jail with
the privilege of leaving the jail, during such hours as the court
determines and under such supervision as the court considers
necessary, for the purpose of allowing the contemnor to go to and
return from his or her place of employment.
§48-14-503. Limitation on length of commitment.
(a) A In a commitment under subdivision (5) of section
14-502, shall not exceed forty-five days for the first adjudication
of contempt or ninety days for any subsequent adjudication of
contempt the court shall confine the contemnor for an indeterminate
period not to exceed six months or until such time as the contemnor
has purged himself or herself, whichever shall first occur.
(b) An obligor committed under subdivision (5) of section
14-502 shall be released by court order if the court has reasonable
cause to believe that the obligor will comply with the court's
order.
§48-14-701. Posting of bonds or giving security to guarantee
payment of overdue support.
(a) An obligor with a pattern of overdue support may be
required by order of the court to post bond, give security or some
other guarantee to secure payment of overdue support. The
guarantee may include an order requiring that stocks, bonds or
other assets of the obligor be held in escrow by the court until the obligor pays the support.
(b) No less than fifteen days before such an order may be
entered, the Bureau for Child Support enforcement attorney shall
cause the mailing of a notice by first class mail to the obligor
informing the obligor of the impending action, his or her right to
contest it, and setting forth a date, time and place for a meeting
with the Bureau for Child Support enforcement attorney and the
date, time and place of a hearing before the family court if the
impending action is contested.
§48-14-801. When monthly payments may be increased to satisfy
overdue support.
(a) For the purpose of securing overdue support, the Bureau
for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as one hundred
dollars per month to satisfy the arrearage when:
(1) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for six months if the order requires support to be paid in monthly
installments; or
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twenty-seven weeks if the order requires support to be paid in
weekly or biweekly installments.
(b) For the purpose of securing overdue support, the Bureau for Child Support Enforcement has the authority to increase the
monthly support payments of an obligor by as much as two hundred
dollars per month to satisfy the arrearage when:
(1) An obligor's gross income equals or exceeds sixty-five
thousand dollars; and
(2) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for twelve months if the order requires support to be paid in
monthly installments; or
(3) An obligor has failed to make payments as required by a
support order and arrears are equal to an amount of support payable
for fifty-four weeks if the order requires support to be paid in
weekly or biweekly installments.
(b) (c) An increase in monthly support under this section will
be in addition to any amounts withheld from income pursuant to this
article.
(c) (d) This increase in monthly support may be enforced
through the withholding process.
ARTICLE 15. Enforcement of support order through action against
license.
Part 2. Action Against License.
§48-15-201. Licenses subject to action.
The following licenses are subject to an action against a
license as provided for in this article:
(1) A business registration certificate issued under article
twelve, chapter eleven of this code authorizing a person to
transact business in the State of West Virginia;
(1) (2) A permit or license issued under chapter seventeen-b
of this code authorizing a person to drive a motor vehicle;
(2) (3) A commercial driver's license issued under chapter
seventeen-e of this code authorizing a person to drive a class of
commercial vehicle;
(3) (4) A permit, license or stamp issued under article two or
two-b, chapter twenty of this code regulating a person's activities
for wildlife management purposes, authorizing a person to serve as
an outfitter or guide or authorizing a person to hunt or fish;
(4) (5) A license or registration issued under chapter thirty
of this code authorizing a person to practice or engage in a
profession or occupation;
(5) (6) A license issued under article twelve, chapter
forty-seven of this code authorizing a person to transact business
as a real estate broker or real estate salesperson;
(6) (7) A license or certification issued under article
fourteen, chapter thirty-seven of this code authorizing a person to
transact business as a real estate appraiser;
(7) (8) A license issued under article twelve, chapter
thirty-three of this code authorizing a person to transact
insurance business as an agent, broker or solicitor;
(8) (9) A registration made under article two, chapter
thirty-two of this code authorizing a person to transact securities
business as a broker-dealer, agent or investment advisor;
(9) (10) A license issued under article twenty-two, chapter
twenty-nine of this code authorizing a person to transact business
as a lottery sales agent;
(10) (11) A license issued under article thirty-two or
thirty-four, chapter sixteen of this code authorizing persons to
pursue a trade or vocation in asbestos abatement or radon
mitigation;
(11) (12) A license issued under article eleven, chapter
twenty-one of this code authorizing a person to act as a
contractor;
(12) (13) A license issued under article two-c, chapter
nineteen of this code authorizing a person to act as an auctioneer;
and
(13) (14) A license, permit or certificate issued under
chapter nineteen of this code authorizing a person to sell, market
or distribute agricultural products or livestock.
ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.
§48-17-101. Creation of Support Enforcement Commission; number of
members.
The West Virginia Support Enforcement Commission, consisting
of eight nine members, is hereby created in the Department of Health and Human Resources and may use the administrative support
and services of that department. The commission is not subject to
control, supervision or direction by the Department of Health and
Human Resources, but is an independent, self-sustaining commission
that shall have the powers and duties specified in this chapter.
The commission is a part-time commission whose members perform
such duties as specified in this chapter. The ministerial duties
of the commission shall be administered and carried out by the
Commissioner of the Bureau for Child Support Enforcement, with the
assistance of such staff of the Department of Health and Human
Resources as the Secretary may assign.
Each member of the commission shall devote the time necessary
to carry out the duties and obligations of the office and the seven
members appointed by the Governor may pursue and engage in another
business, occupation or gainful employment that is not in conflict
with the duties of the commission.
While the commission is self-sustaining and independent, it,
its members, its employees and the commissioner are subject to
article nine-a, chapter six of this code, chapter six-b of this
code, chapter twenty-nine-a of this code and chapter twenty-nine-b
of this code.
§48-17-102. Appointment of members of Support Enforcement
Commission; qualifications and eligibility.
(a) Of the eight nine members of the commission, seven members are to be appointed by the Governor: Provided, That no more than
five members of the commission may belong to the same political
party.
(1) One member is to be a lawyer licensed by, and in good
standing with, the West Virginia State Bar, with at least five
years of professional experience in domestic relations law and the
establishment and enforcement of support obligations;
(2) One member is to be a person experienced as a public
administrator in the supervision and regulation of a governmental
agency;
(3) One member is to be an employer experienced in withholding
support payments from the earnings of obligors;
(4) One member is to be a practicing family court judge, as an
ex officio member, who will serve in an advisory capacity, without
compensation or voting rights; and
(5) Three members are to be representatives of the public at
large, with at least one being an obligor and one being an obligee.
(b) One member is to be the Commissioner of the Bureau for
Children and Families, Department of Health and Human Resources or
his or her designee.
(c) The Commissioner of the Bureau for Child Support
Enforcement, or his or her designee, is an ex officio nonvoting
member of the commission.
(c) (d) Each member of the commission is to be a citizen of the United States, a resident of the State of West Virginia and at
least twenty-one years of age.
§48-17-103. Terms of commission members; conditions of membership.
(a) Beginning the first day of June, two thousand eight, and
every four years thereafter, the Governor shall convene the
commission to review the child support guidelines, in accordance
with the Code of Federal Regulations, Part 45, Section
302.56(C)(3)(e).
(b) The Governor shall make appointments by the first day of
June, two thousand eight, and on the first day of June every four
years thereafter.
(c) The Commissioner shall report the commission's findings
and recommendations to the Legislative Oversight Commission on
Health and Human Resources Accountability by the first day of July,
two thousand nine, and by the first day of July every four years
thereafter.
(d) The commissioners' terms shall expire on the first day of
July in the year in which they submit the required report to the
Legislature as set forth in subsection (c) of this section.
§48-17-105. Commission chairman.
The Commissioner of the Bureau for Child Support Enforcement
shall serve as the chair of the commission.
§48-17-106. Compensation of members; reimbursement for expenses.
(a) Each voting member of the commission shall receive one hundred dollars for each day or portion thereof spent in the
discharge of his or her official duties.
(b) Each member of the commission shall be reimbursed for all
actual and necessary expenses and disbursements involved in the
execution of official duties.
§48-17-107. Meeting requirements.
(a) The commission shall meet within the state at least twice
per calendar year and at such other times as the chairman may
decide. The commission shall also meet upon a call of four or more
members upon seventy-two hours written notice to each member. at
least twice during the one-year term for the sole purpose of
reviewing the child support guidelines set forth in article
thirteen of this chapter. The commission may determine if it needs
to convene more frequently to effectively study the guidelines, but
shall not meet more than eight times during the one-year term.
(b) Four voting members of the commission are a quorum for the
transaction of any business and for the performance of any duty.
(c) A majority vote of the voting members present is required
for any final determination by the commission.
(d) The commission may elect to meet in executive session
after an affirmative vote of a majority of its members present
according to section four, article nine-a, chapter six of this
code.
(e) The commission shall keep a complete and accurate record of all its meetings according to section five, article nine-a,
chapter six of this code.
§48-17-109. General duties of support enforcement commission.
(a) Federal law requires that each state periodically review
the formula used to set child support obligations to determine
appropriate awards for the support of children. States are
required to consider current research and data on the costs of and
expenditures necessary for rearing children. A process for review
of the guidelines should be established to ensure the integrity of
the formula and reviews undertaken to comply with federal law.
(b) The commission shall review and analyze:
(1) The current child support guidelines;
(2) Relevant research and data regarding the cost of child
rearing;
(3) Research and data on the application of, and deviations
from, the child support guidelines;
(4) Current law, administrative rules and practices regarding
child support; and
(5) Any other data the commission deems relevant to the review
of the current child support guidelines.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner.
whose duties include the ministerial management and administration of the office of the support enforcement commission. The
commissioner shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any
other profession or occupation, including the holding of a
political office in the state either by election or appointment,
while serving as commissioner;
(4) Be a lawyer licensed by, and in good standing with, the
West Virginia State Bar; and
(5) Have responsible administrative experience, possess
management skills and have knowledge of the law as it relates to
domestic relations and the establishment and enforcement of support
obligations.
Before entering upon the discharge of the duties as
commissioner, the commissioner shall take and subscribe to the oath
of office prescribed in section five, article IV of the
Constitution of West Virginia.
(b) The duties of the commissioner shall include the
following:
(1) To direct and administer the daily operations of the
commission Bureau for Child Support Enforcement;
(2) To administer the Child Support Enforcement Fund created
pursuant to section 18-107 of this article;
(3) To chair the commission set forth in article seventeen of
this chapter for the purpose of conducting the federally required
review of the child support formula every four years and make a
report to the Legislative Oversight Commission on Health and Human
Resources Accountability of the commission's findings;
(3) (4) To keep the records and papers of the commission,
including a record of each proceeding; and
(4) (5) To prepare, issue and submit reports of the
commission. and
(5) To perform any other duty that the commission directs.
(c) All payments to the commissioner as compensation shall be
made from the Child Support Enforcement Fund. The commissioner is
entitled to:
(1) A reasonable and competitive compensation package to be
established by the secretary; and
(2) Reimbursement for expenses under the standard state travel
regulations.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past-due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article
twenty-one, chapter eleven of this code.
(b) The Commissioner for the Bureau for Child Support Enforcement shall establish procedures necessary for the Bureau for
Child Support Enforcement to enforce a support order through a
notice to the Tax Commissioner which will cause any refund of state
income tax which would otherwise be payable to an obligor to be
reduced by the amount of overdue support owed by such obligor.
(1) Such legislative rule The procedures shall, at a minimum,
prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past-due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner
for the full cost of applying the procedure whereby past-due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. This procedure may not require a
deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families
in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past-due support
which will be owed, at the time the withholding is to be made, will
be one hundred dollars or more. In determining whether the amount
of past-due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all
unpaid past-due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the Social
Security number or numbers and the address or addresses of any
obligor, and the name or names and address or addresses of any
employer or employers, in order to provide notice between such
agencies to aid the Bureau for Child Support Enforcement in
requesting state income tax deductions and to aid the Tax
Commissioner in enforcing such deductions. In each such case, the
Tax Commissioner, in processing the state income tax deduction,
shall notify the Bureau for Child Support Enforcement of the
obligor's home address and Social Security number or numbers. The Bureau for Child Support Enforcement shall provide this information
to any other state involved in processing the support order;
(d) For the purposes of this section, "past-due support" means
the amount of unpaid past-due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living;
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past-due
support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to
notifying the Tax Commissioner of past-due support, a notice to the
obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past-due support is owed or the amount of the
past-due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past-
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at
the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U. S. C. §657.
§48-18-118a. Obtaining refunds of overpaid support from state
income tax refunds.
(a) Definitions. --
(1) "Obligee" means the same as that term is defined in
section two hundred thirty-four, article one of this chapter.
(2) "Obligor" means the same as that term is defined in
section two hundred thirty-five, article one of this chapter.
(3) "Overpaid support" means the same as that term is defined
in section two hundred thirty-five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner
of the Bureau for Child Support Enforcement in establishing and
implementing procedures for the collection of overpaid child
support from state income tax refunds that are payable to obligees.
The Tax Commissioner shall collect the refunds and send the amounts
to the Bureau for Child Support Enforcement for distribution to
obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement shall provide annual
monthly statements of their account to each obligor and obligee
without charge. Additional statements of account shall be provided
at a fee of five dollars, unless such fee is waived pursuant to a
rule promulgated by the commission. Statements provided under this
subsection are in addition to statements provided for judicial
hearings. The commissioner shall establish procedures whereby an
obligor or obligee can contest or correct a statement of account.
§48-18-202. Request for assistance by party.
(a) To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child
Support Enforcement on a form provided by the bureau. The written
request form shall include all of the requesting party's
information known to the party that is relevant to determine the
child support amount. The request shall be accompanied by:
(1) A copy of the order being modified or, in the discretion
of the bureau, information sufficient to permit the bureau to
retrieve or identify the order;
(2) A form containing a statement of all of the requesting
party's information known to the party that is relevant to
determining the amount of child support, including a general
statement or argument advancing the reason the request is being
made;
(3) Copies of documentation reasonably available to the
requesting party setting forth all of the requesting party's
information that is relevant to determine the amount of child
support;
(4) A statement setting forth the relevant information
pertaining to the responding party's earnings and child support
that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting
party may have in its possession which would be relevant to
determining the responding party's child support obligations; and
(6) A statement of all other known proceedings pending court proceedings or other pending requests for assistance involving the
parties or related to the child or children whose support is being
reevaluated.
(b) Upon receipt of notification that an obligor is
incarcerated in a regional jail or a state or federal correctional
facility, the Bureau for Child Support Enforcement shall determine
whether the expected incarceration will exceed six months. If the
incarceration will exceed six months, the bureau shall file a
petition to modify child support.
§48-18-205. Bureau action on request of recalculation and
presentation of proposed order.
(a) If the bureau determines that no credible information
exists to establish finding of a substantial change in
circumstances as required by section one hundred five, article
eleven of this chapter or section one hundred six, article fourteen
of this chapter, the Bureau for Child Support Enforcement shall
notify the parties of that fact and notify the parties that the
Bureau for Child Support Enforcement will not be preparing a
petition of proposed order seeking modification of the parties'
child support obligation. Under those circumstances, if the
parties disagree with the Bureau for Child Support Enforcement's
assessment and wish to independently file a petition for
modification, the parties may still seek modification of child
support by filing a petition for modification of an order for support with the family court under the provisions of section one
hundred five or one hundred six, article eleven of this chapter or
under the provisions of section one hundred six, article fourteen
of this chapter.
(b) If the Bureau for Child Support Enforcement determines
that there has been a substantial change of circumstances as
required by section one hundred five, article eleven of this
chapter or by section one hundred six, article fourteen of this
chapter, then the Bureau for Child Support Enforcement shall
prepare a petition and proposed order modifying the child support
order to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support
Enforcement filed pursuant to this article shall include the
following:
(1) A copy of the proposed order;
(2) A print-out of the child support guidelines calculations;
(3) A notice of the bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the bureau is
required or determines to include; and
(6) A form and instructions for filing an objection to the
proposed order, should a party wish to do so, which form shall
require a statement of the ground or grounds for filing the
objection.
(d) The Bureau for Child Support Enforcement's proposed order
shall be based on the child support guidelines: Provided, That the
bureau may disregard the child support guidelines or adjust the
amount as allowed by section seven hundred two, article thirteen of
this chapter in the following instances:
(1) When the previous child support order disregarded the
child support guidelines, the grounds for the disregarding or
adjusting the guidelines are stated in the worksheet or previous
order or are agreed upon by the parties, or are otherwise clear,
and those grounds continue to exist and can be applied to the
current circumstances; or
(2) If new grounds for the disregard or adjustment are fully
explained in the proposed order.
(e) Within six months of the time that a child support
obligation becomes one thousand dollars in arrears, the Bureau for
Child Support Enforcement shall notify the obligor that he or she
may be in violation of section twenty-nine, article five, chapter
sixty-one of this code, felony nonsupport, should the arrearage
increase to eight thousand dollars. The notice shall also advise
the obligor of the availability of child support modification, the
amnesty program established in section three hundred two, article
one of this chapter and the possibility of establishing a payment
plan with the bureau: Provided, That where the monthly child
support obligation is greater than one thousand dollars, the notice shall be sent when the arrearage equals to or greater than three
months child support obligation.
(1) If the obligor fails to respond within thirty days, the
Bureau for Child Support Enforcement shall file a petition for
contempt pursuant to section five hundred three, article fourteen
of this chapter.
(2) If the obligor responds within thirty days, the Bureau for
Child Support Enforcement shall review the response and file
appropriate pleadings which may include a motion for modification
of child support.
(3) The Bureau for Child Support Enforcement will have one
year from the amendment and reenactment of this section during the
two thousand eight legislative session to notify obligors who
currently owe one thousand dollars or more in child support
arrearages or, where the monthly child support obligation is
greater than one thousand dollars, the arrearage is equal to or
greater than three months child support obligation, of the child
support modification options available to them.
§48-18-206. Family court action on petition and proposed order
prepared by Bureau for Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed
order prepared by the Bureau for Child Support Enforcement in
accordance with the provisions of this article, the circuit clerk
shall serve a copy of the petition and the proposed order upon all parties to the proceeding by personal service or by United States
certified mail, return receipt requested, and direct the parties to
file any objections to the proposed modified child support order
within twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for
modification and proposed order, the circuit clerk shall notify the
family court.
(c) If no party files timely objection to the proposed order
or timely requests a hearing on the petition after receiving such
notice, then the family court may shall proceed to review the
petition and proposed order sua sponte, and may shall issue the
proposed order. If the family court receives no objection, but the
family court concludes that the proposed order should not be
entered or should be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition
or proposed order, the family court shall set a date and time for
hearing.
(e) At any hearing on the proposed order, the family court
shall treat the proposed order as a motion for modification made by
the party requesting the bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall
not be an appeal from the bureau's recommended order. The family
court shall notify the parties of the hearing and of the parties'
rights and the procedures to be followed.
(f) The fees to be assessed for filing and service of the
petition and the disbursement of the fee for petitions filed
pursuant to this section shall be the same as the fee charged by
the clerk for petitioning for an expedited modification of a child
support order, as set forth in section eleven, article one, chapter
fifty-nine of this code.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 504--A Bill
to amend and reenact §38-3-18 of the Code of West Virginia, 1931,
as amended; to amend and reenact §48-1-205, §48-1-225, §48-1-230
and §48-1-302 of said code; to amend and reenact §48-11-103 and
§48-11-105 of said code; to amend said code by adding thereto a new
section, designated §48-13-804; to amend and reenact §48-14-102,
§48-14-106, §48-14-108, §48-14-203, §48-14-302, §48-14-404, §48-14-
407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and §48-14-801
of said code; to amend and reenact §48-15-201 of said code; to
amend and reenact §48-17-101, §48-17-102, §48-17-103, §48-17-105,
§48-17-106, §48-17-107 and §48-17-109 of said code; to amend and
reenact §48-18-102, §48-18-118, §48-18-120, §48-18-202, §48-18-205
and §48-18-206 of said code; and to amend said code by adding
thereto a new section, designated §48-18-118a, all relating
generally to child support enforcement; providing for extension of statute of limitations for child support in certain instances;
clarifying findings of fact in court orders when income is
attributed for purposes of setting child support; clarifying that
prescription drugs are included in medical support; providing that
inmate concession accounts are income for withholding purposes;
reducing the interest rate on unpaid child support from ten percent
per annum to five percent per annum; providing for support to
continue past age eighteen by operation of law under certain
circumstances; establishing a procedure for refunding of properly
withheld amounts when a support order is modified; requiring copy
of modification order be sent to Bureau for Child Support
Enforcement within five days; requiring family court judges enter
default orders setting child support; allowing the Bureau for Child
Support Enforcement to bring an action for medical support;
providing refund procedures when a party to a support order is
deceased; clarifying that an affidavit of accrued support may be
filed in the court where the original order was entered; allowing
the collection through income withholding of court-ordered fees;
clarifying that withholding limitations do not apply to bonuses;
creating consistency among civil contempt penalties; authorizing
the Bureau for Child Support Enforcement to collect an additional
two hundred dollars when arrearage triggers are met; eliminating
the requirement that the Bureau for Child Support Enforcement
attorney meet with the parties prior to the posting of a bond; authorizing the Tax Commissioner to deny issuance or reissuance of
a business license; reconstituting the Child Support Enforcement
Commission to allow for review of the child support formula by the
commission; clarifying the duties of the Bureau for Child Support
Enforcement Commissioner with respect to review of the child
support formula; requiring report to the Legislative Oversight
Commission on Health and Human Resources Accountability; allowing
the Tax Commissioner to supply names and addresses of an obligor's
employer to the Bureau for Child Support Enforcement for
enforcement of support obligations; allowing collection of
overpayments to support obligees from state tax refunds; requiring
that parties receive monthly statements of child support accounts;
requiring Bureau for Child Support Enforcement determine when
person owing child support will be incarcerated more than six
months and modify child support; requiring Bureau for Child Support
Enforcement send notice to obligors in arrears one thousand dollars
or more of modification options; requiring petition for contempt in
certain cases; requiring motion for modification in certain cases;
providing Bureau for Child Support Enforcement one year to send
notification of modification options to obligors currently in
arrears one thousand dollars or more; clarifying that when
attorneys for the Bureau for Child Support Enforcement enter a
proposed order to modify a child support obligation without
objection, a modification order will be entered; and making technical corrections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 504, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 504) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 545, Relating to tax
administration efficiency.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page six, section seven-d, line twenty-nine, by striking
out the word "on" and inserting in lieu thereof the word "one";
And,
On page thirteen, section five, line one hundred thirty-seven,
after the word "canceled" by inserting a comma and the word
"revoked".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 545, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 545) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Senate Bill No. 784, Relating to reforming, altering or
modifying county government.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page three, section one, line twenty-seven, after the word
"created" by inserting the words "on or after the first day of
July, two thousand eight,";
And,
On page eleven, section one-a, line one hundred thirty-three,
by striking out the word "acceptable" and inserting in lieu thereof
the words "guidelines for".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 784, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 784) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Hunter, the Senate requested the return
from the House of Delegates of
Senate Concurrent Resolution No. 28, Designating timber
rattlesnake as state reptile.
Having been received as a House message in earlier proceedings
tonight; for the purpose of subsequently moving reconsideration of
the vote on Senator Chafin's motion to refuse to concur in the House of Delegates amendments to the resolution.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence as to the recall
of Senate Concurrent Resolution No. 28.
On motion of Senator Chafin, the Senate recessed until 10 p.m.
tonight.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2008, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 239, Creating Senior
Citizen Property Tax Payment Deferment Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the
enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-6H-1, §11-6H-2,
§11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10 and §11-6H-11; and that said code be amended by adding
thereto a new section, designated §11-21-24, all to read as
follows:
ARTICLE 6H. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.
§11-6H-1. Short title.
This article shall be known as the Senior Citizen Property Tax
Payment Deferment Act.
§11-6H-2. Definitions.
As used in this article, the following terms shall have the
meaning ascribed to them in this section, unless the context in
which the term is used clearly requires a different meaning or a
specific different definition is provided:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Deferment" means a delay or postponement.
(3) "Homestead" means a homestead qualified for the homestead
property tax exemption authorized in article six-b of this chapter,
but limited to a single family residential house, including a
mobile or manufactured or modular home, and the land, not exceeding
one acre, surrounding such structure that is owned by the owner of
the single family residential house, including a mobile or
manufactured or modular home; or a mobile or manufactured or
modular home regardless of whether the land upon which such mobile
or manufactured or modular home is situated is owned by another.
(4) "Owner" means the person who is possessed of the
homestead, whether in fee or for life. A person seized or entitled
in fee subject to a mortgage or deed of trust shall be considered
the owner. A person who has an equitable estate of freehold, or is
a purchaser of a freehold estate who is in possession before
transfer of legal title shall also be considered the owner.
Personal property mortgaged or pledged shall, for the purpose of
taxation, be considered the property of the party in possession.
(5) "Sixty-five years of age or older" includes a person who
attains the age of sixty-five on or before the thirtieth day of
June following the July first assessment day.
(6) "Tax increment" means the increase of ad valorem taxes
assessed on the homestead, determined as the difference between the
ad valorem taxes assessed on the homestead for the current tax year
and the ad valorem taxes assessed on the homestead for the tax year
immediately preceding the tax year for which the taxpayer's
application for property tax deferment specified in this article is
approved by the assessor, or otherwise finally approved in
accordance with the provisions of this article.
(7) "Used and occupied exclusively for residential purposes"
means that the property is used as an abode, dwelling or habitat
for more than six consecutive months of the calendar year prior to
the date of application by the owner thereof; and that subsequent
to making application for deferment, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial
use.
(8) "Tax year" means the calendar year following the July
first assessment day.
§11-6H-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment
provided in subsection (b) of this section:
(1) Any homestead owned by an owner sixty-five years of age or
older and used and occupied exclusively for residential purposes by
such owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who,
as a result of illness, accident or infirmity, is residing with a
family member or is a resident of a nursing home, personal care
home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) (1) For tax years commencing on or after the first day of
January, two thousand nine, the owner of a homestead meeting the
qualifications set forth in subsection (a) of this section may
apply for a deferment in the payment of the tax increment of ad
valorem taxes assessed under the authority of article three of this
chapter on the homestead: Provided, That the deferment may be authorized only when the tax increment is the greater of three
hundred dollars or ten percent or more: Provided, however, That
all deferred taxes are not subject to any rate of interest.
(2) In lieu of the deferment of the tax increment authorized
pursuant to this article, a taxpayer entitled to such deferment may
elect to instead apply the senior citizen property tax relief
credit authorized under section twenty-four, article twenty-one of
this chapter. Any taxpayer making such election shall be fully
subject to the terms and limitations set forth in section twenty-
four, article twenty-one of this chapter.
§11-6H-4. Application for deferment; renewals; waiver of
deferment.
(a) General. -- No deferment may be allowed under this article
unless an application for deferment is filed with the assessor of
the county in which the homestead is located, on or before the
first day of November following mailing of the tax ticket in which
the tax increment that is the subject of the application is
contained, such tax ticket being mailed pursuant to section eight,
article one, chapter eleven-a of this code. In the case of
sickness, absence or other disability of the owner, the application
may be filed by the owner or his or her duly authorized agent.
(b) Renewals. -- After the owner has filed an application for
deferment with his or her assessor, there shall be no need for that
owner to refile an application for the taxes so deferred.
(c) Waiver of deferment. -- Any person otherwise qualified who
does not apply for deferment from payment of a tax increment on or
before the first day of November as specified in this article is
considered to have waived his or her right to apply for deferment
from such payment for that tax year.
§11-6H-5. Determination; notice of denial of application for
deferment.
(a) The assessor shall, as soon as practicable after an
application for deferment is filed, review that application and
either approve or deny it. The assessor shall approve or disapprove
an application for deferment within thirty days of receipt. Any
application not approved or denied within thirty days is deemed
approved. If the application is denied, the assessor shall
promptly, but not later than the first day of January, serve the
owner with written notice explaining why the application was denied
and furnish a form for filing with the county commission, should
the owner desire to take an appeal. The notice required or
authorized by this section shall be served on the owner or his or
her authorized representative either by personal service or by
certified mail.
(b) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a deferment, is no longer eligible for the
deferment, he or she shall, within thirty days after forming this reasonable belief, revoke the deferment and serve the owner with
written notice explaining the reasons for the revocation and
furnish a form for filing with the county commission should the
owner desire to take an appeal.
§11-6H-6. Appeals procedure.
(a) Notice of appeal; thirty days. -- Any owner aggrieved by
the denial of his or her claim for application for deferment or the
revocation of a previously approved deferment may appeal to the
county commission of the county within which the property is
situated. All such appeals shall be filed within thirty days after
the owner's receipt of written notice of the denial of an
application or the revocation of a previously approved deferment,
as applicable, pursuant to section five of this article.
(b) Review; determination; appeal. -- The county commission
shall complete its review and issue its determination as soon as
practicable after receipt of the notice of appeal, but in no event
later than the twenty-eighth day of February following the tax year
for which the deferment was sought. In conducting its review, the
county commission may hold a hearing on the application. The
assessor or the owner may apply to the circuit court of the county
for review of the determination of the county commission in the
same manner as is provided for appeals from the county commission
in section twenty-five, article three of this chapter.
§11-6H-7. Termination of deferment.
Any deferment approved in accordance with the provisions of
section five of this article shall terminate immediately when any
of the following events occur:
(1) The death of the owner of the property for which the
deferment was authorized;
(2) The sale of the property for which the deferment was
approved;
(3) A determination by the assessor that the property for
which the deferment was approved no longer qualifies for the
deferment in accordance with the provisions of this article;
(4) The owner of the property for which the deferment was
approved fails to maintain a fire insurance policy on the property
that, if the property is destroyed, is sufficient to pay all debts
for which the property is used as collateral and all tax increments
that have been deferred and other charges provided by law;
(5) The owner of the property for which the deferment was
approved fails to maintain a flood insurance policy that, if the
property is destroyed, is sufficient to pay all debts for which the
property is used as collateral and all tax increments that have
been deferred and other charges provided by law: Provided, That
the provisions of this subdivision shall apply only to the
following property: (A) Property within a flood elevation that has
a one percent chance of being equaled or exceeded each year, as
determined by the Federal Emergency Management Agency; (B) property within a one hundred year floodplain as designated by the Federal
Emergency Management Agency; or (C) property within a special flood
hazard area as determined by the Federal Emergency Management
Agency or as shown on the most current National Flood Insurance
Program flood hazard boundary map, flood insurance rate map, or
flood boundary and floodway map; or
(6) The tax increments deferred from payment and other charges
provided by law, are paid in full.
§11-6H-8. Property tax books; lien on property.
(a) Property book entry. -- The amount deferred from payment
of the tax increment shall be shown and continued on the property
books until paid.
(b) Lien; statement to homestead owner. -- The amount of the
tax increment deferred from payment, and other charges as provided
by law, shall be a lien on the real property for which the tax was
assessed that continues until paid in full, and is not subject to
the requirements for the collection of taxes provided in chapter
eleven-a of this code. For purposes of this article [CLERK'S NOTE:
Text shown as submitted at Clerk's desk.]
(c) When lien is to be paid. -- The lien required by this
section shall be paid no later than ninety days following the
occurrence of any one of the events set forth in section seven of
this article.
(d) Limitation on execution on lien and limitation on transfer of lien. -- No county or levying body nor any official, agent or
representative thereof, shall execute upon, or collect upon any
lien created pursuant to this article, until one of the conditions
for termination of deferment set forth in section seven of this
article has occurred. No county or levying body nor any official,
agent or representative thereof, shall assign or transfer any right
to execute upon or collect upon any such lien to any other person
or entity until one of the conditions for termination of deferment
set forth in section seven of this article has occurred.
§11-6H-9. Forms, instructions and regulations.
The Tax Commissioner shall prescribe and supply all necessary
instructions and forms for administration of this article.
Additionally, the Tax Commissioner may propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, as the Tax Commissioner
considers necessary for the implementation of this article.
§11-6H-10. Criminal penalties; restitution.
(a) False or fraudulent claim for deferment. -- Any owner who
willfully files a fraudulent application for deferment, and any
person who knowingly assisted in the preparation or filing of such
fraudulent application for deferment or who knowingly supplied
information upon which the fraudulent application for deferment was
prepared or allowed, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty nor more than five hundred dollars, or imprisoned in jail for not
more than one year, or both fined and imprisoned.
(b) Failure to notify assessor. -- Any owner who knowingly,
prior to the next first day of July, fails to notify the assessor
of the county wherein property subject to the tax increment
deferment is located, that title to that property or a portion
thereof was transferred by deed, grant, sale, gift, will or by the
laws of this state regulating descent and distribution, or that the
property is no longer used and occupied for residential purposes
exclusively by the owner, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars, or imprisoned in jail for not more than one year, or both
fined and imprisoned.
(c) In addition to the criminal penalties provided above, upon
conviction of any of the above offenses, the court shall order that
the defendant make restitution unto the county for all taxes not
paid due to an improper deferment, or continuation of a deferment,
for the owner.
§11-6H-11. Severability.
If any provision of this article or the application thereof to
any person or circumstance is held unconstitutional or invalid,
such unconstitutionality or invalidity does not affect, impair or
invalidate other provisions or applications of the article, and to
this end the provisions of this article are declared to be severable.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-24. Senior citizen property tax relief credit.
(a) Definitions. -- As used in this section, the following
terms shall have the meaning ascribed to them in this subsection,
unless the context in which the term is used clearly requires a
different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined
under article three of this chapter.
(2) "Real property taxes paid" means, for the tax years
beginning on or after the first day January, two thousand nine, the
aggregate of regular levies, excess levies and bond levies extended
against the homestead that are paid during the calendar year and
determined after any application of any discount for early payment
of taxes but before application of any penalty or interest for late
payment of property taxes.
(3) "Senior citizen property tax relief tax credit" means the
tax credit authorized under this section.
(4) "Gross household income" means gross household income as
defined in section twenty-three of this article.
(5) "Homestead" means a homestead qualified for the homestead
property tax exemption authorized in article six-b of this chapter,
but limited to a single family residential house, including a
mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of
the single family residential house, including a mobile or
manufactured or modular home; or a mobile or manufactured or
modular home regardless of whether the land upon which such mobile
or manufactured or modular home is situated is owned by another.
(6) "Owner" or "homeowner" means the person who is possessed
of the homestead, whether in fee or for life. A person seized or
entitled in fee subject to a mortgage or deed of trust shall be
considered the owner. A person who has an equitable estate of
freehold, or is a purchaser of a freehold estate who is in
possession before transfer of legal title shall also be considered
the owner. Personal property mortgaged or pledged shall, for the
purpose of taxation, be considered the property of the party in
possession.
(7) "Sixty-five years of age or older" includes a person who
attains the age of sixty-five on or before the thirtieth day of
June following the July first assessment day.
(8) "Tax increment" means the increase of ad valorem taxes
assessed on the homestead, determined as the difference between the
ad valorem taxes assessed on the homestead for the current tax year
and the ad valorem taxes assessed on the homestead for the tax year
immediately preceding the tax year for which the taxpayer's
application for tax credit specified in this section is approved by
the assessor, or otherwise finally approved in accordance with the provisions of this article.
(9) "Tax year" means the property tax calendar year following
the July first assessment day.
(10) "Used and occupied exclusively for residential purposes"
means that the property is used as an abode, dwelling or habitat
for more than six consecutive months of the calendar year prior to
the date of application by the owner thereof; and that subsequent
to making application for tax credit, the property is used only as
an abode, dwelling or habitat to the exclusion of any commercial
use.
(b) Refundable credit. -- Subject to the requirements and
limitations of this section, for the tax years beginning on or
after the first day of January, two thousand nine, any homeowner
having a gross household income equal to or less than twenty-five
thousand dollars for the tax year, living in his or her homestead
shall be allowed a refundable credit against the taxes imposed by
this article equal to the amount of real property taxes paid that
are attributable to the tax increment of ad valorem taxes assessed
under the authority of article three of this chapter on the
homestead: Provided, That the gross household income shall be
adjusted annually in accordance with the consumer price index. The
credit shall be applied against the personal income tax in the
personal income tax year of the taxpayer when the property tax
increment was actually paid.
(1) Due to the administrative cost of processing, the
refundable credit authorized by this section may not be refunded if
less than ten dollars.
(2) The credit for each property tax year shall be claimed by
filing a claim for refund within twelve months after the real
property taxes are paid on the homestead.
(3) Notwithstanding the provisions of section twenty-one or
twenty-three of this article, for property tax years that begin on
or after the first day of January, two thousand nine, a homeowner
is eligible to benefit from this section, section twenty-one or
twenty-three of this article, whichever section provides the most
benefit as determined by the homeowner. No homeowner may receive
benefits under this section, section twenty-one or twenty-three of
this article, during the same taxable year. Nothing in this section
shall be interpreted to deny any lawfully entitled taxpayer of the
homestead exemption provided in section three, article six-b of
this chapter.
(c) Qualification for credit. --
(1) The following homesteads shall qualify for the tax credit
provided in this section:
(A) Any homestead owned by an owner sixty-five years of age or
older and used and occupied exclusively for residential purposes by
such owner; and
(B) Any homestead that:
(i) Is owned by an owner sixty-five years of age or older who,
as a result of illness, accident or infirmity, is residing with a
family member or is a resident of a nursing home, personal care
home, rehabilitation center or similar facility;
(ii) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(iii) Has been retained by the owner for noncommercial
purposes.
(2) (A) For tax years commencing on or after the first day of
January, two thousand nine, the owner of a homestead meeting the
qualifications set forth in subdivision (1) of this subsection may
apply for a tax credit in the amount of the tax increment of ad
valorem taxes assessed under the authority of article three of this
chapter on the homestead, subject to the limitations set forth in
this section: Provided, That the tax credit may be authorized only
when the tax increment is the greater of three hundred dollars or
ten percent or more.
(B) In lieu of the tax credit authorized under this section,
a taxpayer entitled to such credit may elect to instead apply the
deferment of the tax increment authorized pursuant to article six-h
of this chapter. Any taxpayer making such election shall be fully
subject to the terms and limitations set forth in article six-h of
this chapter.
(d) Application for tax credit; renewals; waiver of tax credit. --
(1) General. -- No tax credit may be allowed under this
section unless an application for tax credit is filed with the
assessor of the county in which the homestead is located, on or
before the first day of November following mailing of the tax
ticket in which the tax increment that is the subject of the
application is contained, such tax ticket being mailed pursuant to
section eight, article one, chapter eleven-a of this code. In the
case of sickness, absence or other disability of the owner, the
application may be filed by the owner or his or her duly authorized
agent.
(2) Renewals. -- After the owner has filed an application for
tax credit with his or her assessor, there shall be no need for
that owner to refile an application for the tax credit. However,
the taxpayer shall in all cases be required to file a personal
income tax return in order to claim the credit in any tax year.
(e) Determination; notice of denial of application for tax
credit. --
(1) The assessor shall, as soon as practicable after an
application for tax credit is filed, review that application and
either approve or deny it. If the application is denied, the
assessor shall promptly, but not later than the first day of
January, serve the owner with written notice explaining why the
application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The
notice required or authorized by this section shall be served on
the owner or his or her authorized representative either by
personal service or by certified mail. The assessor shall approve
or disapprove an application for tax credit within thirty days of
receipt. Any application not approved or denied within thirty days
is deemed approved.
(2) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a tax credit, is no longer eligible for the tax
credit, he or she shall, within thirty days after forming this
reasonable belief, revoke the tax credit and serve the owner with
written notice explaining the reasons for the revocation and
furnish a form for filing with the county commission should the
owner desire to take an appeal.
(f) Appeals procedure. --
(1) Notice of appeal; thirty days. -- Any owner aggrieved by
the denial of his or her claim for application for tax credit or
the revocation of a previously approved tax credit may appeal to
the county commission of the county within which the property is
situated. All such appeals shall be filed within thirty days after
the owner's receipt of written notice of the denial of an
application or the revocation of a previously approved tax credit,
as applicable, pursuant to subsection (e) of this section.
(2) Review; determination; appeal. -- The county commission
shall complete its review and issue its determination as soon as
practicable after receipt of the notice of appeal, but in no event
later than the twenty-eighth day of February following the tax year
for which the tax credit was sought. In conducting its review, the
county commission may hold a hearing on the application. The
assessor or the owner may apply to the circuit court of the county
for review of the determination of the county commission in the
same manner as is provided for appeals from the county commission
in section twenty-five, article three of this chapter.
(g) Termination of tax credit. --
(1) Any tax credit approved in accordance with the provisions
of this section shall terminate immediately when any of the
following events occur:
(A) The death of the owner of the property for which the tax
credit was authorized;
(B) The sale of the property for which the tax credit was
approved; or
(C) A determination by the assessor that the property for
which the tax credit was approved no longer qualifies for the tax
credit in accordance with the provisions of this section.
(h) Forms, instructions and regulations. -- The Tax
Commissioner shall prescribe and supply all necessary instructions
and forms for administration of this section. Additionally, the Tax Commissioner may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, as the Tax Commissioner considers necessary
for the implementation of this section.
(i) Criminal penalties; restitution. --
(1) False or fraudulent claim for tax credit. -- Any owner who
willfully files a fraudulent application for tax credit, and any
person who knowingly assisted in the preparation or filing of such
fraudulent application for tax credit or who knowingly supplied
information upon which the fraudulent application for tax credit
was prepared or allowed, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty
nor more than five hundred dollars, or imprisoned in jail for not
more than one year, or both fined and imprisoned.
(2) In addition to the criminal penalties provided above, upon
conviction of any of the above offenses, the court shall order that
the defendant make restitution unto this state for all taxes not
paid due to an improper tax credit, or continuation of a tax
credit, for the owner and interest thereon at the legal rate until
paid.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 239--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H-
5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10 and §11-6H-11;
and to amend said code by adding thereto a new section, designated
§11-21-24, all relating to the taxation of real property owned by
senior citizens; providing definitions; providing deferment for
payment of property tax increment; specifying that the senior
citizen property tax relief tax credit may be applied in lieu of
such deferment; authorizing rules; requiring application for the
deferment; providing for deferment renewal and waiver of deferment;
providing procedures for the review and approval of application by
the assessor; providing an appeals procedure; authorizing creation
of a lien on property for which deferment is approved; specifying
conditions for liens and lien payment and termination; requiring
the Tax Commissioner to prescribe necessary forms and instructions;
authorizing the Tax Commissioner to propose legislative rules;
establishing criminal penalties; authorizing severability of
provisions of the article; creating the Senior Citizen Property Tax
Relief Credit Act; providing definitions; providing tax credit
against personal income tax for payment of a specified property tax
increment under certain circumstances; specifying that the Senior
Citizen Property Tax Payment Deferment may be applied in lieu of
such credit; requiring application for the tax credit; providing
for tax credit renewal; providing procedures for the review and approval of application by the assessor; providing an appeals
procedure; requiring the Tax Commissioner to prescribe necessary
forms and instructions; and establishing criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 239, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 239) passed with its House of Delegates
amended 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 239) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 474, Creating limited sales
tax holiday for certain Energy Star appliance purchases.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages two and three, section nine-j, by striking out all of
subsection (a) and inserting in lieu thereof a new subsection (a),
to read as follows:
(a) There is established an annual sales tax holiday on the
sale of specified Energy Star qualified products from the taxes imposed by this article if:
(1) (A) The sales price of the specified Energy Star qualified
product is two thousand five hundred dollars or less per purchase
for noncommercial home or personal use; and
(B) The sale takes place in two thousand eight during a period
beginning at 12:01 a.m. eastern daylight time on the first day of
September and ending at 11:59 p.m. eastern daylight time on the
seventh day of September; or
(2) (A) The sales price of the specified Energy Star qualified
product is five thousand dollars or less per purchase for
noncommercial home or personal use; and
(B) The sale takes place:
(i) In two thousand nine during a period beginning at 12:01
a.m. eastern daylight time on the first day of September and ending
at 11:59 p.m. eastern daylight time on the thirtieth day of
November; or
(C) In two thousand ten during a period beginning at 12:01
a.m. eastern daylight time on the first day of September and ending
at 11:59 p.m. eastern daylight time on the thirtieth day of
November.;
And,
On pages three and four, section nine-j, by striking out all
of subsection (c) and inserting in lieu thereof a new subsection
(c), to read as follows:
(c) Definition. -- As used in this section, the term "Energy
Star qualified product" means a product that meets the energy
efficient guidelines set by the United States Environmental
Protection Agency and the United States Department of Energy that
are authorized to carry the Energy Star label. Covered products
are those listed at www.energystar.gov or successor address.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 474, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 474) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendment
to the Senate amendments, as to
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 motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. House Bill No. 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
the procedure, assessment, collection, efficient administration and
technical advancements for certain taxes; 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; 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.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed House Bill No. 3201, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3201) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments to the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 4484, Relating to the
criminal offense of stalking.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendment to the bill were reported by the Clerk:
On
page two, section nine-a, subsection (c), by striking out
the words "law master" and inserting in lieu thereof the words
"court judge";
On page three, section nine-a, subsection (e), after the words
"protective order" by inserting the words "for injunctive relief";
On page three, section nine-a, subsection (e), by striking out
"§48-27-403" and inserting in lieu thereof the words "section five
hundred one, article twenty-seven, chapter forty-eight";
On page three, section nine-a, subsection (e), by striking out
the words "a final order protection entered pursuant to the
provisions of §48-5-601" and inserting in lieu thereof the words
"section six hundred eight, article five, chapter forty-eight";
On page three, section nine-a, after subsection (e), by
inserting the following:
"(f) For the purposes of this section:";
On page four, section nine-a,
subsection (f), subdivision (2),
after the words "carried out" by striking out the word "and";
On page four, section nine-a,
subsection (f), after the words
"resided in the household" by changing the period to a semicolon
and inserting the word "and";
On page four, section nine-a, after subsection (f),
subdivision (5), by inserting "(g)" before the word "Nothing";
And relettering the remaining subsections;
On pages five and six, section nine-a, by striking out all of
subsection (k) and inserting in lieu thereof a new subsection,
designated subsection (l), to read as follows:
(l) 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 of the West Virginia Foundation for Rape
Information and Services, is authorized to promulgate legislative
rules and emergency rules pursuant to article three, chapter
twenty-nine-a of this code, establishing appropriate standards for
the enforcement of this section by state, county and municipal law-
enforcement officers and agencies.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendment to
the bill.
Engrossed Committee Substitute for House Bill No. 4484, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4484) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its Senate amended
title, and requested the concurrence of the Senate in the adoption
thereof, as to
Eng. House Bill No. 4557, Relating to continuing education for
insurance producers.
Whereupon, Senator Minard, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. House Bill No. 4557, Relating to continuing education for
insurance producers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 4557 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the Senate on page six, section eight, line
seventy-nine, and that the Senate and House agree to the same as
follows:
On page six, section eight, after line seventy-nine, by
inserting the following:
(f) Subject to the approval by the commissioner, the active
annual membership by an individual insurance producer in an
organization or association recognized and approved by the
commissioner as a state, regional or national professional
insurance organization or association may be approved by the
commissioner for up to two hours of continuing insurance education:
Provided, That not more than two hours of continuing insurance
education may be awarded to an individual insurance producer for
membership in a professional insurance organization during a
biennnial reporting period. Credit for continuing insurance
education pursuant to this subdivision may only be awarded to
individual insurance producers who are required to complete more
than six hours of continuing education biennially.;
And relettering the remaining subsections;
And,
That the House of Delegates agree to the amendment of the
Senate to the title of the bill.
Respectfully submitted,
K. Steven Kominar, Chair, David G. Perry, Bob Ashley,
Conferees on the part of the House of Delegates.
Joseph M. Minard, Chair, Michael A. Oliverio II, Andy
McKenzie, Conferees on the part of the Senate.
Senator Minard, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken
up for immediate consideration and adopted.
Engrossed House Bill No. 4557, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4557) passed with its Senate amended title.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4364, Amending various
requirements for motor vehicle dealers.
Whereupon, Senator Chafin
, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4364, Amending various
requirements for motor vehicle dealers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 4364 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and
§17A-6-18a
of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §17A-6E-2 of said code be amended and
reenacted; and that §
46A-3-109
of said code be amended and
reenacted, all to read as follows:
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.
§17A-6-1b. Dealers authorized to issue motor vehicle registration.
(a) Notwithstanding any other provision in this chapter, the
division may allow a licensed motor vehicle dealer as defined in
section one of this article, authority to issue or transfer motor
vehicle registrations for vehicles sold by the dealer. The
authority to issue and transfer motor vehicle registrations shall
be contingent upon the dealer collecting all fees and taxes
required for the titling and registration of vehicles, receiving
proof of insurance as described in subsection (e), section three,
article three of this chapter, and if applicable receiving the
receipt showing full payment of personal property taxes in
accordance with section three-a, article three of this chapter.
(b) Authorization to issue and transfer motor vehicle
registrations shall be contingent on the dealer completing an
application provided by the division and meeting all criteria established by the division. The authority shall also be
contingent upon the dealer agreeing to participate fully in a
computerized system of electronic submission of registration,
titling and lien information and all fees and taxes required under
the provisions of this chapter, either directly to the division or
through an authorized service provider selected and approved by the
division. Any transaction conducted under the provisions of this
section shall be conditional pending the determination by the
division that the application for title, registration and lien
recordation is complete, accurate and in accordance with the
provisions of this chapter.
(c) The authority to participate in the electronic
transmission of title, registration and lien information shall be
immediately revoked upon revocation or cancellation of a dealer's
license issued under the provisions of this chapter: Provided,
That the authority to issue and transfer motor vehicle
registrations may be revoked by the division immediately and
separately from any other action against the dealer's license if
the division determines that the terms of the agreement or
agreements authorizing issuance, transfer or renewal of a vehicle
registration or the electronic transmission of information have
been violated.
(d) A fee established by the Motor Vehicle Dealers Advisory
Board may be charged by a motor vehicle dealer for its services required under this section.
(e) Only motor vehicle registrations of a type specified by
the division may be issued, transferred or renewed by the
authorized dealer.
(f) All fees and taxes collected by an authorized dealer under
the provisions of this section shall be deposited in a financial
institution designated by the division or the service provider in
the manner prescribed by the division.
(g) The division may authorize a service provider to supply an
authorized dealer with the necessary forms, supplies, registration
plates and registration renewal decals necessary to enable the
authorized dealer to perform the duties and functions specified in
this section.
(1) Any service provider authorized to perform services under
the provisions of this section shall post a bond of the applicant
in the penal sum of one million dollars, in the form prescribed by
the commissioner, conditioned that the applicant will not in the
conduct of business practice any fraud which, or make any
fraudulent representation which, shall cause a financial loss to
any dealer, financial institution or agency, or the State of West
Virginia, with a corporate surety thereon authorized to do business
in this state, which bond shall be effective as of the date on
which the authorization to provide services commences.
(2) The service provider is solely responsible for the inventory, tracking, safety and reconciliation of all supplies,
registration plates, registration decals or other motor vehicle
credentialing items in accordance with procedures established by
the division and subject to audits by the division.
(3) The division may rescind without notice the authority of
a service provider to perform services when the division has cause
to believe that any state or federal law has been violated or that
the service provider is not adhering to the terms and conditions of
the authorization agreement.
(h) The service provider and the authorized dealer assume full
responsibility for the care, custody, control, disclosure and use
of any information provided by the division in order to execute the
duties and responsibilities required by this section. Each service
provider and each authorized dealer agrees to ensure that the
disclosure of information to it and its handling of information
received from the division complies with all federal and state
statutes and division directives governing the disclosure and
protection of such information.
(i) The commissioner may enter into agreements with other
states and jurisdictions granting licensed dealers regulated by
other states and jurisdictions the authority to issue or transfer
motor vehicle registrations for vehicles sold by the dealer in the
same manner as dealers licensed by this state.
§17A-6-2a. Dealer Recovery Fund created.
(a) There is hereby created a special fund in the State
Treasury which is to be designated the Dealer Recovery Fund. The
fund shall consist of certain moneys received from persons engaged
in the business of selling new or used motor vehicles, new or used
motorcycles, trailers, semi-trailers or recreational vehicles or
from grants, gifts, bequests or awards arising out of the
settlement or adjudication of a claim. The fund is not to be
treated by the Auditor and Treasurer as part of the general revenue
of the state. The fund is to be a special revolving fund paid out
upon order of the Commissioner of Motor Vehicles based on the
recommendation of the Dealer Recovery Fund Control Board created in
this section, solely for the purposes specified in this section.
The commissioner may use up to one percent of funds from the Dealer
Recovery Fund for the administrative expenses of operating the
Dealer Recovery Fund program.
(b) The Dealer Recovery Fund Control Board shall consist of
the Commissioner of Motor Vehicles or his or her designee, the
Attorney General's designee representing the Office of Consumer
Protection and one representative selected by the Motor Vehicle
Dealers Advisory Board. The Commissioner of Motor Vehicles or his
or her designee shall serve as chair and the board shall meet at
least once a year during the month of July, and as required by the
commissioner. The commissioner may propose rules for promulgation
in accordance with article three, chapter twenty-nine-a of this code that are necessary to effectuate the provisions of this
section. The commissioner may employ the necessary staff needed to
operate the program. The board may prorate the amount paid on
claims when the amount of valid claims submitted would exceed
thirty-three percent of the fund. However, claims presented by the
Division of Motor Vehicles for taxes and fees shall be paid in
full. The board may purchase insurance at a cost not to exceed one
percent of the fund to cover extraordinary or excess claims from
the fund.
(c) Every applicant for either an original dealer license or
renewal of an existing dealer license of the type enumerated in
subsection (a) of this section shall pay, in addition to any other
license fee, an annual Dealer Recovery Fund fee of one hundred
fifty dollars. All dealers shall continue to maintain a surety
bond as required by this article and the Dealer Recovery Fund
payment unless exempt by one of the following requirements:
(1) Any dealer who, for the three years immediately preceding
assessment of the fees, has not had a claim paid against their bond
or against the Dealer Recovery Fund, whose license has not been
suspended or revoked and who has not been assessed any civil
penalties is not required to continue to keep the bond required by
this article. However, no dealer can submit a claim against the
fund unless it has contributed to the fund for at least three
years.
(2) If the Dealer Recovery Fund reaches or exceeds the amount
of three million dollars as of the first day of July of any year,
a dealer who meets the requirements of subdivision (1) of this
subsection, is exempt from payment of the annual Dealer Recovery
Fund Fee. However, if the fund should, as of the first day of
April of any year, drop below three million dollars, all dealers,
regardless of any previous exemption shall pay the annual dealer
recovery fee of one hundred fifty dollars. The exemption
prescribed in subdivision (1) of this subsection remains in effect
regardless of the status of the fund.
(d) The Dealer Recovery Fund control board may consider
payment only after any dealer surety bond required pursuant to the
provisions of section four of this article has been exhausted.
(e) When the fund reaches two hundred fifty thousand dollars,
the board shall consider claims for payment.
(f) Claims against the fund are not to be made for any act or
omission which occurred prior to the first day of July, two
thousand two.
(g) Claims for payment shall be submitted within six months of
the date of sale or the date the division is made aware of the
claim.
(h) The board shall pay claims in the following order:
(1) Claims submitted by the Division of Motor Vehicles for
unpaid taxes and fees;
(2) Claims submitted by a retail purchaser of a vehicle from
a dealer covered by the fund with an undisclosed lien or a retail
purchaser of a vehicle from a dealer covered by the fund who finds
that the lien on the vehicle traded in has not been satisfied by
the selling dealer if the lien satisfaction was a condition of the
purchase agreement;
(3) Claims submitted by a motor vehicle dealer contributing to
the fund, which has purchased a vehicle or vehicles from another
dealer covered by the fund with an undisclosed lien; or
(4) Claims submitted by a retail purchaser of third-party
goods or services from a dealer covered by the fund for the unpaid
charges when the dealer fails to pay the third party for the goods
or services; or
(5) Claims submitted by the Division of Motor Vehicles, a
retail purchaser or a motor vehicle dealer contributing to the
fund, not authorized by subdivisions (1) through (4), inclusive, of
this subsection, but otherwise payable under the bond described in
section four of this article, may be considered for payment by the
board up to the amount of fifty thousand dollars for each licensing
year the West Virginia dealer that is the subject of the complaint
did not maintain the bond
: Provided, That the board may not
consider claims submitted by or on behalf of a financial
institution for money owed by a dealer upon a loan to a dealer or
credit extended to a dealer that is secured by a lien upon the inventory of the dealer, commonly referred to as a floor planner.
(i) The maximum claim against the fund for any unpaid lien of
a used vehicle is the unpaid balance of the lien up to the loan
value of the vehicle as of the date of the sale or other
transaction as shown by a generally accepted motor vehicle value
guide. The maximum claim against the fund for any new or unused
vehicle is the amount of the invoice less any amounts rebated or to
be rebated to the dealer from the manufacturer. Payment is only to
be made to a secured party who agrees to accept payment from the
Dealer Recovery Fund and who accepts the payment in full settlement
of any claims, and who releases the lien and the title, if
applicable, prior to receiving payment. Any dealer who agrees to
accept payment from the Dealer Recovery Fund shall release the
title prior to receiving payment.
(j) On payment by the board to a claimant from the fund, the
board shall immediately notify the licensee against whom a claim
was paid and request full reimbursement within thirty days of
notification. If a dealer fails to fully reimburse the board
within the specified period of time, the commissioner shall
immediately and without prior hearing revoke the dealer license of
dealer against whom the claim was paid. No applicant with an
unpaid claim is eligible for renewal or relicensure until the full
amount of the reimbursement plus interest as determined by the
board is paid to the fund. Nothing in this section shall limit the authority of the commissioner to suspend, revoke or levy civil
penalties against a dealer, nor shall full repayment of the amount
owed to the fund necessarily nullify or modify the effect of any
action by the commissioner.
(k) Nothing in this section shall limit the right for any
person to seek relief though civil action against any other person.
(l) The provisions of this section do not apply to those class
DTR dealers in the business of selling manufactured housing and
covered by the state manufactured housing recovery fund established
by the Division of Labor pursuant to a legislative rule.
§17A-6-4. Application for license certificate; insurance; bonds;
investigation; information confidential
.
(a) Application for any license certificate required by
section three of this article shall be made on a form prescribed by
the commissioner. There shall be attached to the application a
certificate of insurance certifying that the applicant has in force
an insurance policy issued by an insurance company authorized to do
business in this state insuring the applicant and any other person,
as insured, using any vehicle or vehicles owned by the applicant
with the express or implied permission of the named insured,
against loss from the liability imposed by law for damages arising
out of the ownership, operation, maintenance or use of the vehicle
or vehicles, subject to minimum limits, exclusive of interest and
costs, with respect to each vehicle, as follows: Twenty thousand dollars because of bodily injury to or death of one person in any
one accident and, subject to the limit for one person, forty
thousand dollars because of bodily injury to or death of two or
more persons in any one accident, and ten thousand dollars because
of injury to or destruction of property of others in any one
accident.
(b) In the case of an application for a license certificate to
engage in the business of new motor vehicle dealer, used motor
vehicle dealer or house trailer dealer, the application shall
disclose, but not be limited to, the following:
(1) The type of business for which a license certificate is
sought;
(2) If the applicant is an individual, the full name and
address of the applicant and any trade name under which he or she
will engage in the business;
(3) If the applicant is a copartnership, the full name and
address of each partner in the copartnership, the name of the
copartnership, its post office address and any trade name under
which it will engage in the business;
(4) If the applicant is a corporation, its name, the state of
its incorporation, its post office address and the full name and
address of each officer and director of the corporation;
(5) The location of each place in this state at which the
applicant will engage in the business and whether the business is owned or leased by the applicant;
(6) Whether the applicant, any partner, officer or director of
the business has previously engaged in the business or any other
business required to be licensed under the provisions of this
article and if so, with or for whom, at what location and for what
periods of time;
(7) Whether the applicant, any partner, officer, director or
employer of the business has previously applied for a license
certificate under the provisions of this article or a similar
license certificate in this or any other state, and if so, whether
the license certificate was issued or refused and, if issued,
whether it was ever suspended or revoked;
(8) A statement of previous general business experience and
the past history of the applicant; and
(9) Any other information that the commissioner may reasonably
require which may include information relating to any contracts,
agreements or understandings between the applicant and other
persons respecting the transaction of the business, and any
criminal record of the applicant if an individual, or of each
partner if a copartnership, or of each officer and director, if a
corporation.
(c) In the case of an application for a license certificate to
engage in the business of new motor vehicle dealer, the application
shall, in addition to the matters outlined in subsection (b) of this section disclose:
(1) The make or makes of new motor vehicles which the
applicant will offer for sale in this state during the ensuing
fiscal year; and
(2) The exact number of new and used motor vehicles, if any,
sold at retail and wholesale by the applicant or his or her
predecessor, if any, during the preceding fiscal year, and if no
new and used motor vehicles were sold at retail and wholesale by
the applicant or his or her predecessor, if any, during the
preceding fiscal year, the number of new and used motor vehicles
the applicant reasonably expects to sell at retail and wholesale
during the ensuing fiscal year.
(d) In the case of an application for a license certificate to
engage in the business of used motor vehicle dealer, the
application shall in addition to the matters outlined in subsection
(b) of this section, disclose the exact number of used motor
vehicles, if any, sold at retail and wholesale by the applicant or
his or her predecessor, if any, during the preceding fiscal year,
and if no used motor vehicles were sold at retail and wholesale by
the applicant or his or her predecessor, if any, during the
preceding fiscal year, the number of used motor vehicles the
applicant reasonably expects to sell at retail and wholesale during
the ensuing fiscal year.
(e) In the case of an application for a license certificate to engage in the business of trailer dealer, recreational vehicle
dealer, motorcycle dealer, used parts dealer or wrecker/
dismantler/rebuilder, the application shall disclose any
information that the commissioner may reasonably require.
(f) The application shall be verified by the oath or
affirmation of the applicant, if an individual, or if the applicant
is a copartnership or corporation, by a partner or officer thereof,
as the case may be. Except as provided in section two-a of this
article, the application shall be accompanied by a bond of the
applicant in the penal sum of ten twenty-five thousand dollars, in
the form prescribed by the commissioner, conditioned that the
applicant will not in the conduct of his or her business practice
any fraud which, or make any fraudulent representation which, shall
cause a financial loss to any purchaser, seller or financial
institution or agency, or the State of West Virginia, with a
corporate surety thereon authorized to do business in this state.
The bond shall be effective as of the date on which the license
certificate sought is issued.
(g) Upon receipt of any fully completed application, together
with any bond required under subsection (f) of this section, the
certificate of insurance as required in subsection (a) of this
section and the appropriate fee provided for in section ten of this
article, the commissioner may conduct any investigation he or she
considers necessary to determine the accuracy of any statements contained in the application and the existence of any other facts
which he or she considers relevant in considering the application.
To facilitate the investigation, the commissioner may withhold
issuance or refusal of the license certificate for a period not to
exceed twenty days.
(h) Any application for a license certificate under the
provisions of this article and any information submitted with the
application is confidential for the use of the division. No person
shall divulge any information contained in any application or any
information submitted with the application except in response to a
valid subpoena or subpoena duces tecum issued pursuant to law.
§17A-6-7. When application to be made; expiration of license
certificate; renewal.
(a) Every license certificate issued in accordance with the
provisions of this article shall, unless sooner suspended or
revoked, expire on the thirtieth day of June next following the
issuance thereof.
(b) A license certificate may be renewed each year in the same
manner, for the same fee as prescribed in section ten of this
article and upon the same basis as an original license certificate
is issued under section six of this article: Provided, That the
commissioner may not renew the license of any new or used motor
vehicle dealer who has sold less than eighteen vehicles during the
preceding year subject to the following:
(1) This proviso does not apply to a dealer in the business of
selling commercial motor vehicles of a gross vehicle weight of
twenty-six thousand one pounds or more;
(2) The commissioner may approve the renewal of a dealer
selling less than eighteen vehicles based on a finding of
extenuating circumstances including, but not limited to, the
illness of the dealer, adverse business conditions or sales
credited to other types of dealer licenses held by the dealer; and
(3) Any dealer may appeal the commissioner's refusal to the
Motor Vehicle Dealers Advisory Board which may consider extenuating
circumstances and approve the renewal.
All applications for the renewal of any license certificate
shall be filed with the commissioner at least thirty days before
the expiration thereof. Any application for renewal of any license
certificate not filed at least thirty days before the expiration
may not be renewed except upon payment of the same fee as an
original license certificate as prescribed in subsection (a),
section ten of this article. The commissioner may allow the
delinquent applicant to complete an abbreviated application for
renewal in lieu of an original application.
§17A-6-15. Temporary registration plates or markers.
(a) In order to permit a vehicle which is sold to a purchaser
by a dealer to be operated on the streets and highways pending
receipt of the annual registration plate from the division for such vehicle, the commissioner may, subject to the limitations and
conditions hereinafter set forth, deliver temporary vehicle
registration plates or markers to dealers who in turn may, subject
to the limitations and conditions hereinafter set forth, issue the
same to purchasers of vehicles, but such purchasers must comply
with the pertinent provisions of this section.
(b) Application by a dealer to the commissioner for such
temporary registration plates or markers shall be made on the form
and in the manner prescribed and furnished by the commissioner for
such purpose and shall be accompanied by a fee of three dollars for
each such temporary registration plate or marker. The commissioner
may require the fee to be remitted to the division in an electronic
format. No refund or credit of fees paid by dealers to the
commissioner for temporary registration plates or markers shall be
allowed, except that in the event the commissioner discontinues the
issuance of such temporary plates or markers, dealers returning
temporary registration plates or markers to the commissioner may
petition for and be entitled to a refund or a credit thereof. No
temporary registration plates or markers shall be delivered by the
commissioner to any dealer in house trailers only, and no such
temporary plates or markers shall be issued for or used on any
house trailer for any purpose.
(c) Every dealer who has made application for and received
temporary registration plates or markers shall maintain in permanent form a record of all temporary registration plates or
markers delivered to him a manner prescribed by the commissioner,
a record of all temporary registration plates or markers issued by
him or her, and a record of any other information pertaining to the
receipt or the issuance of temporary registration plates or markers
which the commissioner may require. Each such record shall be kept
for a period of at least three years from the date of the making
thereof. Every dealer who issues a temporary registration plate or
marker shall, within five working days after he issues such plate
or marker, send to the division a copy of the temporary
registration plate or marker certificate properly executed by such
dealer and the purchaser notify the division in the manner
prescribed by the commissioner. No temporary registration plates
or markers may be delivered to any dealer until such dealer has
fully accounted to the commissioner for the temporary registration
plates or markers last delivered to such dealer, by showing the
number issued to purchasers by such dealer and any on hand.
(d) A dealer shall may not issue, assign, transfer or deliver
a temporary registration plate or marker to anyone other than the
bona fide purchaser of the vehicle to be registered; nor shall may
a dealer issue a temporary registration plate or marker to anyone
possessed of an annual registration plate for a vehicle which has
been sold or exchanged, except a dealer may issue a temporary
registration plate or marker to the bona fide purchaser of a vehicle to be registered who possesses an annual registration plate
of a different class and makes application to the division to
exchange such annual registration plate of a different class in
accordance with the provisions of section one, article four of this
chapter; nor shall may a dealer lend to anyone, or use on any
vehicle which he or she may own, a temporary registration plate or
marker. It shall be is unlawful for any dealer to issue any
temporary registration plate or marker knowingly containing any
misstatement of fact, or knowingly to insert any false information
upon the face thereof.
(e) Every dealer who issues temporary registration plates or
markers shall affix or insert clearly and indelibly on the face of
each temporary registration plate or marker in the manner
prescribed by the commissioner, the date of issuance and expiration
thereof, and the make and motor or serial number of the vehicle for
which issued.
(f) If the commissioner finds that the provisions of this
section or his or her directions are not being complied with by a
dealer, he or she may suspend the right of such dealer to issue
temporary registration plates or markers.
(g) Every person to whom a temporary registration plate or
marker has been issued shall permanently destroy such temporary
registration plate or marker immediately upon receiving the annual
registration plate for such vehicle from the division: Provided, That if the annual registration plate is not received within sixty
days of the issuance of the temporary registration plate or marker,
the owner shall, notwithstanding the fact that the annual
registration plate has not been received, immediately and
permanently destroy the temporary registration plate or marker:
Provided, however, That not more than one temporary registration
plate or marker shall be issued to the same bona fide purchaser for
the same vehicle.
(h) A temporary registration plate or marker shall expire and
become void upon the receipt of the annual registration plate from
the division or upon the rescission of the contract to purchase the
vehicle in question, or upon the expiration of sixty days from the
date of issuance, depending upon whichever event shall first occur.
(i) For the purpose of this section, the term "dealer"
includes a wrecker/dismantler/rebuilder and in the context of
issuing temporary registration plates, any other business licensed
by the division in accordance with the provisions of this chapter
and authorized to issue temporary registration plates or markers.
(j) The commissioner may require participation in an
electronic temporary plate issuance system by all dealers as a
precondition for authority for a dealer to issue temporary license
plates or markers.
§17A-6-18a. Motor Vehicle Dealers Advisory Board.
(a) There is continued a Motor Vehicle Dealers Advisory Board to assist and to advise the commissioner on the administration of
laws regulating the motor vehicle industry; to work with the
commissioner in developing new laws, rules or policies regarding
the motor vehicle industry; to advise the commissioner on setting
documentary charges or similar charges motor vehicle dealers may
charge consumers for documentary services in relation to securing
a title, which such charges the commissioner is hereby granted
authority to set; and to give the commissioner any further advice
and assistance as he or she may, from time to time, require.
The board shall consist of nine members and the Commissioner
of Motor Vehicles, or his or her representative, who shall be an ex
officio member. Two members shall represent new motor vehicle
dealers, with one of these two members representing dealers that
sell less than one hundred new vehicles per year; one member shall
represent used motor vehicle dealers; one member shall represent
wrecker/dismantler/rebuilders; one member shall represent
automobile auctions; one member shall represent recreational
dealers; one member shall represent the West Virginia Attorney
General's office; and two members shall represent consumers. All
of the representatives, except the Attorney General representative
who shall be designated by the Attorney General, shall be appointed
by the Governor with the advice and consent of the Senate, with no
more than five representatives being from the same political party.
The terms of the board members shall be for three years. The attorney general representative shall serve continuously.
The board shall meet at least four times annually and at the
call of the commissioner.
(b) The commissioner shall consult with the board before he or
she takes any disciplinary action against a dealer, an automobile
auction or a license service to revoke or suspend a license, place
the licensee on probation or levy a civil penalty, unless the
commissioner determines that the consultation would endanger a
criminal investigation.
(c) The commissioner may consult with the board by mail, by
facsimile, by telephone or at a meeting of the board, but the
commissioner is not bound by the recommendations of the board. The
commissioner shall give members seven days from the date of a
mailing or other notification to respond to proposed actions,
except in those instances when the commissioner determines that the
delay in acting creates a serious danger to the public's health or
safety or would unduly compromise the effectiveness of the action.
(d) No action taken by the commissioner is subject to
challenge or rendered invalid on account of his or her failure to
consult with the board.
(e) The appointed members shall serve without compensation,
however, members are entitled to reimbursement of travel and other
necessary expenses actually incurred while engaged in legitimate
board activities in accordance with the guidelines of the Travel Management Office of the Department of Administration or its
successor agency.
ARTICLE 6E. MOTOR VEHICLE SALESPERSON LICENSE.
§17A-6E-2. Definitions.
The following words as used in this article, unless the
context otherwise requires, have the following meanings:
(1) "Applicant" means any person making application for an
original or renewal of a salesperson license;
(2) "Dealer" means any motor vehicle or auction business
regulated under the provisions of article six or six-c of this
chapter;
(3) "Licensee" means any person holding a license issued under
the provisions of this article;
(4) "Motor vehicle salesperson" or "salesperson" means any
person employed by a dealer to sell, buy, display and offer for
sale or deal in motor vehicles, recreational vehicles or trailers,
as those terms are defined in section one, article one of this
chapter, for a commission or other valuable consideration, but does
not mean any public officer performing his or her official duties
or the dealer licensee. A person employed by a dealer as a finance
and insurance representative is for the purposes of this article a
salesperson. For the purposes of this article, the term "motor
vehicle salesperson" does not apply to persons employed by a dealer
in the business of selling commercial motor vehicles with a gross vehicle weight of twenty-six thousand one pounds or more, employees
of financial institutions or to businesses licensed as auctions.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 3. FINANCE CHARGES AND RELATED PROVISIONS.
§46A-3-109. Additional charges; credit life or health insurance;
notice of cancellation; when refund required;
obligations of creditor and insurer; civil penalty;
rules relating to insurance.
(a) In addition to the sales finance charge or loan finance
charge permitted by this chapter, a creditor may contract for and
receive the following additional charges in connection with a
consumer credit sale or a consumer loan:
(1) Official fees and taxes;
(2) Charges for insurance as described in subsection (b) of
this section: Provided, That nothing contained in this section
with respect to insurance in any way limits the power and
jurisdiction of the Insurance Commissioner of this state in the
premises;
(3) Annual charges, payable in advance, for the privilege of
using a lender credit card or similar arrangement which entitles
the user to purchase goods or services from at least one hundred
persons not related to the issuer of the lender credit card or
similar arrangement, under an arrangement pursuant to which the
debts resulting from the purchases are payable to the issuer;
(4) Charges for other benefits, including insurance, conferred
on the consumer, if the benefits are of value to him or her and if
the charges are reasonable in relation to the benefits, are of a
type which is not for credit and are excluded as permissible
additional charges from the sales finance charge or loan finance
charge by rule adopted by the commissioner: Provided, That as to
insurance, the policy as distinguished from a certificate of
coverage thereunder may only be issued by an individual licensed
under the laws of this state to sell the insurance and the
determination of whether the charges therefor are reasonable in
relation to the benefits shall be determined by the Insurance
Commissioner of this state;
(5) Reasonable closing costs with respect to a debt secured by
an interest in land; and
(6) Documentary charge or any other similar charge for
documentary services in relation to securing a title, so long as
said charge is applied equally to cash customers and credit
customers alike and so long as such documentary charge does not
exceed fifty dollars.
and there is a reasonable relationship
between said charge and the benefit conferred on the customer.
(b) A creditor may take, obtain or provide reasonable
insurance on the life and earning capacity of any consumer
obligated on the consumer credit sale or consumer loan, reasonable
insurance on any real or personal property offered as security subject to the provisions of this subsection and section one
hundred nine-a of this article and vendor's or creditor's single
interest insurance with respect to which the insurer has no right
of subrogation. Only one policy of life insurance and/or one
policy of health and accident insurance and/or one policy of
accident insurance and/or one policy of loss of income insurance on
any one consumer may be in force with respect to any one contract
or agreement at any one time, but one policy may cover both a
consumer and his or her spouse:
(1) The amount, terms and conditions of property insurance
shall have a reasonable relation to the existing hazards or risk of
loss, damage or destruction and be reasonable in relation to the
character and value of the property insured or to be insured; and
the term of the insurance shall be reasonable in relation to the
terms of credit: Provided, That nothing may prohibit the consumer
from obtaining, at his or her option, greater coverages for longer
periods of time if he or she so desires;
(2) Life insurance shall be in an initial amount not to exceed
the total amount repayable under the consumer credit agreement, and
where a consumer credit sale or consumer loan is repayable in
installments, such insurance may at no time exceed the scheduled or
actual amount of unpaid indebtedness, whichever is greater. Life
insurance authorized by this subdivision shall provide that the
benefits be paid to the creditor to reduce or extinguish the unpaid indebtedness: Provided, That if a separate charge is made for the
insurance and the amount of insurance exceeds the unpaid
indebtedness, where not prohibited, then the excess is payable to
the estate of the consumer. The initial term of the life insurance
in connection with a consumer credit sale, other than a sale
pursuant to a revolving charge account, or in connection with a
consumer loan, other than a loan pursuant to a revolving loan
account, may not exceed the scheduled term of the consumer credit
agreement by more than fifteen days. The aggregate amount of
periodic benefits payable by credit accident and health insurance
in the event of disability, as defined in the policy, and loss of
income insurance in the event of involuntary loss of employment, as
defined in the policy, may not exceed the unpaid amount of such
indebtedness; periodic benefits payable in connection with a
consumer credit sale pursuant to a revolving charge account or of
a consumer loan pursuant to a revolving loan account may be based
upon the authorized credit limit;
(3) When the insurance is obtained or provided by or through
a creditor, the creditor may collect from the consumer or include
as part of the cash price of a consumer credit sale or as part of
the principal of a consumer loan or deduct from the proceeds of any
consumer loan the premium or, in the case of group insurance, the
identifiable charge. The premium or identifiable charge for the
insurance required or obtained by a creditor may equal, but may not exceed the premium rate filed by the insurer with the insurance
commissioner. In any case when the creditor collects the entire
premium for such insurance in advance, the premium shall be
remitted by the creditor to the insurer or the insurance agent, as
specified by the insurer, within ten days from or after the end of
the month in which the collection was made;
(4) With respect to insurance against loss of or damage to
property or against liability, the creditor shall furnish a clear
and specific statement in writing to the debtor setting forth the
cost of the insurance if obtained from or through the creditor and
stating that the debtor may choose the person through whom the
insurance is to be obtained;
(5) With respect to consumer credit insurance providing life,
accident, health or loss of income coverage, no creditor may
require a consumer to purchase the insurance or to purchase the
insurance from the creditor or any particular agent, broker or
insurance company as a condition precedent to extending credit to
or on behalf of such consumer;
(6) When a consumer credit sale or consumer loan, refinancing
or consolidation is paid in full, the creditor receiving the
payment shall inform the debtor of the cancellation of any consumer
credit insurance providing life, accident, health or loss of income
coverage and advise the debtor of the application of any unearned
premiums to the loan balance. Notices required by this subdivision shall be made in the following manner:
(A) If the insurance was not sold or provided by the creditor,
the creditor receiving the payment shall notify the debtor that he
or she may have the right to receive a refund of unearned premiums
from any other seller or provider of the insurance and advise the
debtor of his or her obligation to notify any other insurer of the
payment of the loan balance and the cancellation of the consumer
credit insurance and request a refund or credit of unearned
premiums, if applicable. Such notice shall be sent on a form as
prescribed by the insurance commissioner as provided in chapter
twenty-nine-a of this code and shall contain the name and address
of the seller and the insurer; or
(B) If the creditor was the seller or provider of the consumer
credit insurance, the creditor shall:
(i) Notify the insurer or shall cause the insurer to be
notified of the cancellation of such insurance; and
(ii) Notify the debtor of the cancellation of the insurance
and of the application of any unearned premiums to the loan
balance, which notice may be on a form consistent with the general
course of business of the creditor;
(7) Upon receipt by the insurer of notification of the
cancellation of consumer credit insurance, the insurer shall cancel
the insurance effective no later than thirty days from the date of
receipt of the notice. Within forty-five days following the date of notification of cancellation of the insurance, the insurer shall
pay any refund of unearned premiums to the debtor-insurer or such
other person as directed by the debtor-insurer; and
(8) An insurer, seller or creditor who fails to refund any
unused insurance premium or provide the proper notification of
payoff is liable for civil damages up to three times the amount of
the unused premium as well as other remedies as provided by section
one hundred nine, article seven of this chapter.
(c) The Insurance Commissioner of this state shall promulgate
legislative rules in accordance with the provisions of chapter
twenty-nine-a of this code to implement the provisions of this
article relating to insurance and the authority of the Insurance
Commissioner to promulgate the rules is exclusive notwithstanding
any other provisions of this code to the contrary.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4364--A Bill to amend and
reenact §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and
§17A-6-18a
of the Code of West Virginia, 1931, as amended; to amend
and reenact §17A-6E-2 of said code; and to amend and reenact §
46A-
3-109 of said code, all relating to motor vehicle dealers
generally; allowing the Commissioner of the Division of Motor
Vehicles to enter into agreements with other states to allow out-of-state dealers to issue vehicle registrations; expanding
authority of Dealer Recovery Fund Control Board to consider claims
against the fund; increasing minimum bond requirement for certain
dealers from ten thousand dollars to twenty-five thousand dollars;
establishing minimum number of sales by a dealer prior to renewal
of a dealer's license and opportunity for appeal; exempting
salespersons employed by dealers selling commercial vehicles,
financial institutions and auctions from the requirement to obtain
a salesperson license; requirements for issuing temporary
registration plates; authorizing the commissioner to require
participation in an electronic temporary plates or markers program
as a precondition for issuance of temporary plates; and
transferring to commissioner authority
to set documentary or
similar charges motor vehicle dealers may charge consumers for
documentary services in relation to securing a title, with the
advice of the Motor Vehicle Dealers Advisory Board
.
Respectfully submitted,
Lidella Wilson Hrutkay, Chair, Robert C. Tabb, Robert A.
Schadler, Conferees on the part of the House of Delegates.
H. Truman Chafin, Chair, Ron Stollings, J. Frank Deem,
Conferees on the part of the Senate.
Senator Chafin, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Chafin, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4364, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4364) passed with its conference amended
title.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments to the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 4438, Relating to air
pollution control.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendment to the bill were reported by the Clerk:
On page eight, section eleven-a, subsection (a), subdivision
(11), after the word "publication." by inserting the following:
The applicant shall post a visible and accessible sign, at a
minimum two feet square, at the entrance to the source or proposed
site. The sign must be clearly marked indicating that an air
quality permit has been applied for and include the West Virginia
Division of Air Quality permitting section telephone number and web
site for additional information. The applicant must post the sign
for the duration of the public notice period.;
And,
On page nine, section eleven-a, subsection (d), after the
words "is complete," by inserting the words "unless the secretary
for good cause shown, extends the fifteen-day time period for up to
an additional fifteen calendar days,".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendment to
the bill.
Engrossed Committee Substitute for House Bill No. 4438, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr.
President)--32.
The nays were: White--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4438) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the eighth order of business.
The end of today's third reading calendar having been reached,
the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4476, Public-Private
Transportation Facilities Act.
Having been read a third time in earlier proceedings today,
and now coming up in deferred order, was again reported by the
Clerk.
On motion of Senator Chafin, the Senate reconsidered its
action by which on yesterday, Friday, March 7, 2008, it adopted the
Finance committee amendment to the bill, as amended (shown in the
Senate Journal of that day, pages 223 to 243, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Finance
committee amendment to the bill, as amended.
On motion of Senator Chafin, the following amendments to the
Finance committee amendment to the bill (Eng, Com. Sub. for H. b.
No. 4476), as amended, were reported by the Clerk, considered
simultaneously, and adopted:
On page nineteen, section nine, after line two, by inserting
a new subsection, designated subsection (f), to read as follows:
(f) Any changes in the terms of the comprehensive agreement,
agreed upon by the parties and subject to the requirements of
subsection (h) of this section, shall be added to the comprehensive
agreement by written amendment.;
On page nineteen, section nine, line three, by striking out
"(f)" and inserting in lieu thereof "(g);
On page nineteen, section nine, lines seven through eleven, by
striking out all of subsection (g) and inserting in lieu thereof
the following:
(h) 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.
(i) Notwithstanding any provision of this article to the
contrary, the division may not enter into a comprehensive agreement until the comprehensive agreement has been approved by the
Legislature by the adoption of a concurrent resolution: Provided,
That all voting on the floor of both houses on the question of the
adoption of any concurrent resolution approving a comprehensive
agreement shall be by yeas and nays to be entered on the Journals.
If the Legislature approves the comprehensive agreement, the
division shall submit the comprehensive agreement to the Governor
for his or her approval or disapproval.;
And,
On page twenty-five, section seventeen, by striking out all of
subsections (b) and (c).
The question now being on the adoption of the Finance
committee amendment to the bill, as amended, the same was put and
prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4476), as just amended, was then 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, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Unger and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4476) passed.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, unanimous consent being granted,
the unreported Transportation and Infrastructure committee
amendment to the title of the bill was withdrawn.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the title of the bill was withdrawn.
On motion of Senator Chafin, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4476--A Bill to amend the
Code of West Virginia, 1931, as 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 relating to establishment of the
Public-Private Transportation Facilities Act; setting forth
legislative findings and purposes; defining terms; providing
prerequisites for acquiring, constructing or improving of a
transportation facility; creating public-private transportation
oversight within the Division of Highways; creating the powers and
duties of the division and any other agencies that are part of the department; providing for the submission of proposals and approval
by the division; providing for service contracts; providing for the
dedication of public property; setting forth the powers and duties
of a developer; requiring a comprehensive agreement; requiring that
comprehensive agreement be adopted by the Legislature by concurrent
resolution; requiring yeas and nays to be entered in Journal;
providing for federal, state and local assistance; addressing the
issues of material default and remedies; prohibiting governmental
entities from pledging full faith and credit; providing for the
exercise of condemnation; addressing utility crossings and
relocations; addressing dedication of assets; qualifying
transportation facilities as public improvements; providing for an
exemption of qualifying transportation facilities from taxation;
and addressing liberal construction and application of article.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its Senate amended
title, to take effect July 1, 2008, and requested the concurrence
of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge
Community and Technical College.
Whereupon, Senator Plymale, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the
administrative link between Shepherd University and Blue Ridge
Community and Technical College.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 3215 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That the House agree to the amendments of the Senate to the
bill and its title.
Respectfully submitted,
Mary M. Poling, Chair, Brady Paxton, Larry A. Williams, John
Doyle, Lynwood Ireland (Did not sign), Conferees of the part of the
House of Delegates.
Robert H. Plymale, Chair, Larry J. Edgell, Roman W. Prezioso,
Jr., Erik P. Wells, Karen L. Facemyer, Conferees on the part of the
Senate.
Senator Plymale, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Plymale, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 3215, as
amended by the conference report, was then put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 3215 pass?"
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Plymale, Prezioso, Stollings, Unger,
Wells, White, Yoder and Tomblin (Mr. President)--27.
The nays were: Boley, Caruth, Deem, Oliverio, Sprouse and
Sypolt--6.
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 with its Senate amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Bowman,
Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Plymale, Prezioso, Stollings, Unger, Wells, White, Yoder and
Tomblin (Mr. President)--27.
The nays were: Boley, Caruth, Deem, Oliverio, Sprouse and
Sypolt--6.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3215) takes effect July 1, 2008.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Jenkins, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68
Authority territory.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Senate
Bill No. 72 having met, after full and free conference, have agreed
to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates on page three, section two,
and that the Senate and House agree to the same as follows:
On page three, section two, line six, by striking out the word
"before" and inserting in lieu thereof the words "on or after";
And,
On page three, section two, line seven, by striking out the
word "eight" and inserting in lieu thereof the word "nine";
And,
That the House recede from its amendment to the title of the
bill.
Respectfully submitted,
Evan H. Jenkins, Chair, Robert H. Plymale, John Yoder,
Conferees on the part of the Senate.
Dale Martin, Chair, Tal Hutchins, Kelli Sobonya, Conferees on
the part of the House of Delegates.
On motions of Senator Jenkins, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Senate Bill No. 72, as amended by the conference
report, was then put upon its passage.
Pending discussion and a point of inquiry to the President,
with resultant response thereto,
The question being "Shall Engrossed Senate Bill No. 72 pass?"
On this question, the yeas were: Bowman, Chafin, Facemyer,
Foster, Hall, Helmick, Jenkins, Minard, Plymale, Stollings, Unger
and Tomblin (Mr. President)--12.
The nays were: Bailey, Barnes, Boley, Caruth, Deem, Edgell,
Fanning, Green, Guills, Hunter, Kessler, Love, McCabe, McKenzie, Oliverio, Prezioso, Sprouse, Sypolt, Wells, White and Yoder--21.
Absent: Sharpe--1.
So, a majority of all the members present and voting not
having voted in the affirmative, the President declared the bill
(Eng. S. B. No. 72) rejected.
Senator Jenkins, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain
firefighters' workers' compensation benefits.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Committee
Substitute for Senate Bill No. 571 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That the Senate agree to the amendment of the House of
Delegates, striking out everything after the enacting section,
excepting on pages seven and eight, that both houses recede from
their respective positions as to the amendment of the House of
Delegates on pages seven and eight, section one, subsection (h),
and that the Senate and House of Delegates agree to the same as
follows:
On page seven, section one, line fifteen, after "(h)" by
inserting "(1)";
On page seven, section one, line sixteen, after the word
"professional" by striking out the words "or volunteers";
On page seven, section one, line twenty-one, after the words
"professional firefighter" by striking out the words "or as a
volunteer firefighter";
On page eight, section one, line nine, after the word
"professional" by striking out the words "and volunteer";
And,
On page eight, section one, after line five, by adding the
following:
(2) The Insurance Commissioner shall study the effects of the
rebuttable presumptions created in this subsection on the premiums
charged for workers' compensation for professional municipal
firefighters; the probable effects of extending these presumptions
to volunteer firefighters, and the overall impact of the risk
management programs, wage replacement, premium calculation, the
number of hours worked per volunteer, treatment of nonactive or
"social" members of a volunteer crew, and the feasibility of
combining various volunteer departments under a single policy on
the availability and cost of providing workers compensation
coverage to volunteer firefighters. The Insurance Commissioner
shall file the report with the Joint Committee on Government and
Finance no later than the first day of December, two thousand
eight.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to a new title to read as follows:
Eng. Com. Sub. for Senate Bill No. 571--
A Bill to amend and
reenact §23-4-1 of the Code of West Virginia, 1931, as amended,
relating to creating a rebuttable presumption that cardiovascular
injury, disease or death or pulmonary disease or death of a
professional firefighter is an occupational injury if certain
criteria are met; providing that sufficient notice of occupational
injury, disease or death has been provided under such
circumstances; establishing presumption that death or injury was
not self inflicted
; and requiring the Insurance Commissioner
conduct a study and report back to the Joint Committee on
Government and Finance.
Respectfully submitted,
Evan H. Jenkins, Chair, Joseph M. Minard, Andy McKenzie,
Conferees on the part of the Senate.
Barbara Evans Fleischauer, Chair, Nancy Peoples Guthrie, John
N. Ellem (Did not sign), Conferees on the part of the House of
Delegates.
On motions of Senator Jenkins, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 571, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 571) passed with its conference amended
title.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate and request concurrence
therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
Whereupon, Senator Foster, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes
to the West Virginia State Police Retirement System.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee
Substitute for House Bill No. 4471 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That the House of Delegates agree to the amendment of the
Senate to the bill, striking out everything after the enacting
clause, excepting on page twenty, section nine, that both houses
recede from their respective positions as to the amendment of the
Senate, and that the Senate and House of Delegates agree to the
same as follows:
On page twenty, section nine, line eighteen, following the
word "lifetime" by inserting a comma and the words "or until the
retirant attains the age of fifty-five;
That both houses recede from their positions as to the
amendment of the Senate to the enacting section and agree to the
same as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §15-2-24b; and that
§15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a,
§15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10,
§15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14,
§15-2A-15, §15-2A-17 and §15-2A-19 of said code be amended and
reenacted, all to read as follows:;
And,
That both houses recede from their positions as to the title
of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4471--
A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §15-2-24b; and to amend and reenact §15-2A-2,
§15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a, §15-2A-6c,
§15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11,
§15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15,
§15-2A-17 and §15-2A-19 of said code, all relating to the West
Virginia State Police Retirement Fund; requiring the State Police
to collect a fee for certain fingerprinting services and deposit
the fees into the retirement system; adding, deleting and modifying
definitions; specifying the title of West Virginia State Police
Retirement System; clarifying the usage of the terms "employee",
"member" and "retirant or retiree" as defined; clarifying the usage
of the terms "fund", "plan", "system" or "retirement system" as
defined; clarifying the usage of the term "base salary" as defined; clarifying the usage of the term "agency" as defined; authorizing
the board to increase or decrease the employee's contribution rate
under specified circumstances; reducing the normal retirement age
for members; eliminating minimum required eligible direct rollover
distributions paid directly to an eligible retirement plan;
allowing distributions totaling less than two hundred dollars
within the definition of "eligible rollover distribution";
clarifying the usage of the term "surviving spouse" as defined;
clarifying surviving spouse payments when calculating the pro rata
share of annuity adjustments; specifying the time frame that a
retirant may receive deferred annuity payments; clarifying the age
requirement for a retirant receiving a duty disability annuity;
requiring the base salary of a member receiving a duty disability
annuity to be annualized until the member has worked twelve months;
specifying the title of the West Virginia Insurance Commission;
clarifying the time frame for which a duty disability retirant
receives a retirement benefit; specifying that disability petitions
certify the job description of an employee applying for a
disability retirement; specifying the time frame for receipt of
awards and benefits to dependents of deceased employees; clarifying
that death awards and benefits be calculated for the last full
twelve-month employment period; requiring that death awards and
benefits be paid to a named beneficiary or to the estate of the
deceased member if there is no surviving spouse or dependents; eliminating duplicate language referring to a single receipt of
state retirement benefits; and adding provisions specifying the
time frame for receipt of beneficiary payments.
Respectfully submitted,
Doug Stalnaker, Chair, Kevin J. Craig, Allen V. Evans,
Conferees on the part of the House of Delegates.
Dan Foster, Chair, Brooks F. McCabe, Jr., Karen L. Facemyer,
Conferees on the part of the Senate.
Senator Foster, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Foster, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4471, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4471) passed with its conference amended
title.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect July 1, 2008, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
Whereupon, Senator Minard, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4022, Relating to
compensation and expenses of panel attorneys providing public
defender services.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee
Substitute for House Bill No. 4022 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to amendment of the Senate, striking out everything after the enacting
section, and agree to the same 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, closing or merging 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, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Three lawyers, one from each congressional district, who
have significant experience in the defense of criminal cases or
have demonstrated a strong commitment to quality representation of
indigent defendants;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing
legal services to the indigent;
(5) One person who is a member of an organization that advocates on behalf of people with mental illness and developmental
disabilities; and
(6) One attorney with significant experience in the defense of
juvenile delinquency and abuse and neglect cases.
(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) Of the initial appointments made to the commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section. Thereafter, terms of office shall
be for four years, each term ending on the same day of the same
month of the year as did the term which it succeeds. Each member
shall hold office from the date of his or her appointment until the
end of the term for which he or she was appointed or until his or
her successor qualifies for office. When a vacancy occurs as a
result of death, resignation or removal in the membership of this
commission, it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same
manner as original appointments. No member shall serve more than
two consecutive full or partial terms and no person may be
reappointed to the commission until at least two years have elapsed
after the completion of a second successive term;
(e) The appointed members of the commission serve four-year
terms that shall coincide with the term of the Governor.
(f) 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 compensation and
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 study the feasibility and need of creating 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;
(7) To study the potential for the dissolution of public
defender corporations;
(8) To study, monitor, evaluate and make recommendations
regarding the training, experience and background necessary for a
public defender or panel attorney to competently represent indigent
defendants in capital cases; and
(9) 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.
(g) On or before the fifteenth day of January, two thousand
nine, the commission shall report to the Legislature its findings
and recommendations on the feasibility and need for the creation of additional public defender corporations; the activation of public
defender corporations; the formation of multicircuit or regional
public defender corporations; or the dissolution of public defender
corporations in accordance with the provisions of section eight 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 designate or her 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, merger or
dissolution of a public defender corporation in a judicial circuit
where the creation, merger or dissolution of such a 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, merger or dissolution of a public defender
corporation in accordance with this subsection, the commission
shall provide a report to the Legislature pursuant subsection (g),
section three-b of this article for approval of the creation,
merger, or dissolution of any public defender corporation.
(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 executive director, with the approval of the
Indigent Defense Commission, determines there is a need to
activate, merge or dissolve a corporation in a judicial circuit of
the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial
consideration to the recommendation of the judge of a single-judge
circuit or the chief judge of a multijudge 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. The executive director shall
allocate funds to those corporations so certifying in the order in
which he or she deems most efficient and cost effective.
(c) Public defender corporations may apply in writing to the
executive director for permission to merge to form multi-circuit or
regional public defender corporations. 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 and the commission 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.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 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
submission of report to Legislature; requiring public defender
corporations to submit monthly financial statements and reports;
providing requirements for the creation, activation, merger or
dissolution of public defender corporations; authorizing employment
of certain attorneys; requiring consultation with judge; 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.
Respectfully submitted,
Mary M. Poling, Chair, Alex Shook, John N. Ellem, Conferees on
the part of the House of Delegates.
Joseph M. Minard, Chair, Mike Green, John Yoder, Conferees on
the part of the Senate.
Senator Minard, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4022, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4022) passed with its conference amended 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 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 of the Senate communicate to the House
of Delegates the action of the Senate.
The Senate proceeded to the ninth order of business.
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.
On second reading, coming up in 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:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION, AND RENEWAL.
§17B-2-3a. Graduated driver's license.
(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 and
satisfactory academic progress 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 unexpired, or a valid 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 Driver's
Eligibility Certificate 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 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 and is making
satisfactory academic progress 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 9-1-1 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 Driver's
Eligibility Certificate 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 and is making
satisfactory academic progress 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 9-1-1
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; and
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
(E) Presents a Driver's Eligibility Certificate or otherwise shows compliance with the provisions of section eleven, article
eight, chapter eighteen 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 two intermediate driver's license, is
quality 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.
ARTICLE 3. CANCELLATION, SUSPENSION, OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license;
hearing.
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a showing by
its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of
a driver's license is required upon conviction;(2) Has by reckless or unlawful operation of a motor vehicle,
caused or contributed to an accident resulting in the death or
personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to indicate a disrespect for traffic laws and a disregard for the
safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor
vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if
committed in this state would be a ground for suspension or revocation;
(7) Has failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by a
magistrate court or municipal court within ninety days, as required
by section two-a, article three, chapter fifty or section two-a,
article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a
magistrate court or municipal court when charged with a motor
vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either
voluntarily or involuntarily due to misconduct from a secondary
school or has failed to maintain satisfactory academic progress, as
provided in section eleven, article eight, chapter eighteen of this code; or
(10) Has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court has ordered the suspension of the
license as provided in article five-a, chapter forty-eight-a of
this code and the child support enforcement division has forwarded
to the division a copy of the court order suspending the license,
or has forwarded its certification that the licensee has failed to
comply with a new or modified order that stayed the suspension and
provided for the payment of current support and any arrearage due.
(b) The driver's license of any person having his or her
license suspended shall be reinstated if:
(1) The license was suspended under the provisions of
subdivision (7), subsection (a) of this section and the payment of
costs, fines, forfeitures or penalties imposed by the applicable
court has been made;
(2) The license was suspended under the provisions of
subdivision (8), subsection (a) of this section, and the person
having his or her license suspended has appeared in court and has
prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of
subdivision (10), subsection (a) of this section, and the division
has received a court order restoring the license or a certification
by the child support enforcement division that the licensee is complying with the original support order or a new or modified
order that provides for the payment of current support and any
arrearage due.
(c) Any reinstatement of a license under subdivision (1), (2)
or (3), subsection (b) of this section shall be subject to a
reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as
hereinbefore in this section authorized, the division shall
immediately notify the licensee in writing, sent by certified mail,
return receipt requested, to the address given by the licensee in
applying for license, and upon his request shall afford him an
opportunity for a hearing as early as practical within not to
exceed twenty days after receipt of such request in the county
wherein the licensee resides unless the division and the licensee
agree that such hearing may be held in some other county. Upon
such hearing the commissioner or his duly authorized agent may
administer oaths and may issue subpoenas for the attendance of
witnesses and the production of relevant books and papers and may
require a reexamination of the licensee. Upon such hearing the
division shall either rescind its order of suspension or, good
cause appearing therefor, may extend the suspension of such license
or revoke such license. The provisions of this subsection (d)
providing for notice and hearing are not applicable to a suspension
under subdivision (10), subsection (a) of this section.
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-11. School attendance and satisfactory academic progress as
conditions of licensing for privilege of operation of
motor vehicle.
(a) In accordance with the provisions of sections three and
five, article two, chapter seventeen-b of this code sections
three-a and five, article two, chapter seventeen-b of this code,
the Division of Motor Vehicles shall deny a license or instruction
permit for the operation of a motor vehicle to any person under the
age of eighteen who does not at the time of application present a
diploma or other certificate of graduation issued to the person
from a secondary high school of this state or any other state or
documentation that the person: (1) Is enrolled and making
satisfactory progress in a course leading to a general educational
development certificate (GED) from a state-approved institution or
organization or has obtained the certificate; (2) is enrolled and
is making satisfactory academic progress in a secondary school of
this state or any other state; (3) is excused from the requirement
due to circumstances beyond his or her control; or (4) is enrolled
in an institution of higher education as a full-time student in
this state or any other state.
(b) The attendance director or chief administrator shall upon
request provide documentation of enrollment status a Driver's Eligibility Certificate on a form approved by the Department of
Education to any student at least fifteen but less than eighteen
years of age upon request who is properly enrolled and is making
satisfactory academic progress in a school under the jurisdiction
of the official for presentation to the Division of Motor Vehicles
on application for or reinstatement of an instruction permit or
license to operate a motor vehicle. Whenever a student at least
fifteen but less than eighteen years of age, except as provided in
subsection (d) of this section, withdraws from school, the
attendance director or chief administrator shall notify the
Division of Motor Vehicles of the withdrawal not later than five
days from the withdrawal date. Within five days of receipt of the
notice, the Division of Motor Vehicles shall send notice to the
licensee that the license will be suspended under the provisions of
section three, article two, chapter seventeen-b of this code on the
thirtieth day following the date the notice was sent unless
documentation of compliance with the provisions of this section is
received by the Division of Motor Vehicles before that time. If
suspended, the division may not reinstate a license before the end
of the semester following that in which the withdrawal occurred.
(c) Whenever a student at least fifteen but less than eighteen
years of age, except as provided in subsection (g) of this section,
withdraws from school, the attendance director or chief
administrator shall notify the Division of Motor Vehicles of the student's withdrawal no later than five days from the date of the
withdrawal. Within five days of receipt of the notice, the
Division of Motor Vehicles shall send notice to the student that
the student's instruction permit or license to operate a motor
vehicle will be suspended under the provisions of section six,
article three, chapter seventeen-b of this code on the thirtieth
day following the date the notice was sent unless documentation of
compliance with the provisions of this section is received by the
Division of Motor Vehicles before that time. The notice shall also
advise the student that he or she is entitled to a hearing before
the county superintendent of schools or his or her designee or
before the appropriate private school official concerning whether
the student's withdrawal from school was due to a circumstance or
circumstances beyond the control of the student. If suspended, the
division may not reinstate an instruction permit or license until
such time as the student returns to school and shows satisfactory
academic progress or until such time as the student attains
eighteen years of age.
(d) Whenever a student at least fifteen but less than eighteen
years of age is enrolled in a secondary school and fails to
maintain satisfactory academic progress, the attendance director or
chief administrator shall follow the procedures set out in
subsection (c) of this section to notify the Division of Motor
Vehicles. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the student that the
student's instruction permit or license will be suspended under the
provisions of section six, article three, chapter seventeen-b of
this code on the thirtieth day following the date the notice was
sent unless documentation of compliance with the provisions of this
section is received by the Division of Motor Vehicles before that
time. The notice shall also advise the student that he or she is
entitled to a hearing before the county superintendent of schools
or his or her designee or before the appropriate private school
official concerning whether the student's failure to make
satisfactory academic progress was due to a circumstance or
circumstances beyond the control of the student. Once suspension
is ordered, the division may not reinstate an instruction permit or
license until such time as the student shows satisfactory academic
progress or until such time as the student attains eighteen years
of age.
(e) Upon written request of a student, within ten days of
receipt of a notice of suspension as provided by this section, the
Division of Motor Vehicles shall afford the student the opportunity
for an administrative hearing. The scope of the hearing shall be
limited to determining if there is a question of improper identity,
incorrect age, or some other clerical error.
(c) (f) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or fifteen total days unexcused absences during a school year, or
suspension pursuant to subsections (a) and (b), section one-a,
article five, chapter eighteen-a of this code.
(2) "Satisfactory academic progress" means the attaining and
maintaining of grades sufficient to allow for graduation and
course-work in an amount sufficient to allow graduation in five
years or by age nineteen, whichever is earlier.
(3) "Circumstances outside the control of the student" shall
include, but not be limited to, medical reasons, familial
responsibilities and the necessity of supporting oneself or
another.
(3) (4) Suspension or expulsion from school or imprisonment in
a jail or a West Virginia correctional facility is not a
circumstance circumstance beyond the control of the person student.
(d) (g) Whenever the withdrawal from school of the student, or
the student's failure to enroll in a course leading to or to obtain
a GED or high school diploma, is or the student's failure to make
satisfactory academic progress is due to a circumstance or
circumstances beyond the control of the student, or the withdrawal
from school is for the purpose of transfer to another school as
confirmed in writing by the student's parent or guardian, no notice
shall be sent to the Division of Motor Vehicles to suspend the
student's motor vehicle operator's license and if the student is
applying for a license, the attendance director or chief administrator shall provide the student with documentation to
present to the Division of Motor Vehicles to excuse the student
from the provisions of this section. The school district
superintendent (or the appropriate school official of any private
secondary school) with the assistance of the county attendance
director and any other staff or school personnel shall be the sole
judge of whether withdrawal is due to circumstances beyond the
control of the person any of the grounds for denial or suspension
of a license as provided by this section are due to a circumstance
or circumstances beyond the control of the student.
(h) The state board shall promulgate rules necessary for
uniform implementation of this section among the counties and as
may otherwise be necessary for the implementation of this section.
The rule may not include attainment by a student of any certain
grade point average as a measure of satisfactory progress toward
graduation.
The bill (Eng. Com. Sub. for H. B. No. 4023), 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.
4023) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings,
Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Caruth, Sprouse, 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. 4023) 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. 4023--A Bill
to amend and
reenact §17B-2-3a of the Code of West Virginia, 1931, as amended;
to amend and reenact §17B-3-6 of said code; and to amend and
reenact §18-8-11 of said code, all relating to the denial or
suspension of the driver's license of any student between the ages of fifteen and eighteen who withdraws from school or fails to make
substantial progress towards graduating; providing for appeal;
defining certain terms; and providing for exceptions.
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. 4287, Clarifying that
certain funds are authorized investments for funds of political
subdivisions.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4287) 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. 4287) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the tenth order of business.
Senate Bill No. 788, Requiring DUI convicts serve mandatory
community service and creating a registry of such persons.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 682, Creating Community and Technical College Capital Improvement Fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page three, section eight, line seven, after the word
"article." by inserting the following: The statutory provisions
governing collection and disposition of capital funds in place
prior to the enactment of this section remain in effect.;
On page six, section eight, line sixty-eight, by striking out
the words "subsection (a) of";
On page nine, section eight, line one hundred thirty-eight, by
striking out the words "section two-h" and inserting in lieu
thereof the words "subsection (h), section two";
On page eighteen, section eighteen, line eighty, by striking
out the word "Account" and inserting in lieu thereof the word
"Fund";
On page nineteen, section eighteen, line ninety-six, after the
word "Fund" by inserting the words "and the Community and Technical
College Capital Improvement Fund";
On page twenty-six, section eighteen, line two hundred thirty-
six, by striking out the word "five" and inserting in lieu thereof
the words "seven and a half";
On page twenty-seven, section eighteen, line two hundred forty-three, after the word "mature" by inserting the words "or are
paid in full";
And,
On page twenty-seven, section eighteen, line two hundred
forty-six, by striking out the words "second-in priority" and
inserting in lieu thereof the word "second-in-priority".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 682, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler,
Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso,
Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 682) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 682) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4636, Making changes to
workers' compensation insurance.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page twenty-nine, section eleven, subsection (d), after the
words "salary of the members of the Board" by changing the period to a colon and inserting the following proviso: Provided, however,
That the annual salary of a member of the Board of Review shall not
exceed one hundred ten thousand dollars.
Under rule number forty-three of the Rules of the Senate,
Senator Helmick was excused from voting on any matter pertaining to
the bill.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4636, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning,
Foster, Green, Guills, Hall, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings,
Sypolt, Wells, White and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger and Yoder--3.
Absent: Sharpe--1.
Excused from voting: Helmick--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4636) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster,
Green, Guills, Hall, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt,
Wells, White and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger and Yoder--3.
Absent: Sharpe--1.
Excused from voting: Helmick--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. 4636) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4476, Public-Private
Transportation Facilities Act.
Passed by the Senate in earlier proceedings tonight,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered its
action by which in earlier proceedings tonight it adopted Senator
Chafin's amendment to the title of the bill (shown in the Senate
Journal of today, pages 660 to 661).
The vote thereon being reconsidered,
The question again being on the adoption of Senator Chafin's
amendment to the title of the bill.
At the request of Senator Chafin, and by unanimous consent,
Senator Chafin's amendment to the title of the bill was withdrawn.
On motion of Senator Chafin, the following substitute
amendment to the title of the bill was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4476--A Bill to amend the
Code of West Virginia, 1931, as 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 relating to establishment of the
Public-Private Transportation Facilities Act; setting forth
legislative findings and purposes; defining terms; providing
prerequisites for acquiring, constructing or improving of a
transportation facility; creating public-private transportation
oversight within the Division of Highways; creating the powers and
duties of the division and any other agencies that are part of the
department; providing for the submission of proposals and approval
by the division; providing for service contracts; providing for the
dedication of public property; setting forth the powers and duties
of a developer; requiring a comprehensive agreement; requiring that comprehensive agreement be adopted by the Legislature by concurrent
resolution; requiring yeas and nays to be entered in journal;
providing for federal, state and local assistance; addressing the
issues of material default and remedies; prohibiting governmental
entities from pledging full faith and credit; providing for the
exercise of condemnation; addressing utility crossings and
relocations; addressing dedication of assets; qualifying
transportation facilities as public improvements; providing for an
exemption of qualifying transportation facilities from taxation;
addressing liberal construction and application of article; and
requiring approval of Governor.
The bill, as just amended, 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, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse,
Stollings, Wells and Tomblin (Mr. President)--28.
The nays were: Hunter, Sypolt, Unger, White and Yoder--5.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for H.
B. No. 4476) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Senate Concurrent Resolution No. 58, Requesting Division of
Highways name bridge near Eleanor, Putnam County, "Memorial
Bridge".
On motion of Senator Chafin, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
By striking out everything after the title and inserting in
lieu thereof the following:
Whereas, Bridge number 40-869-0.27 (4380) on Route 869,
completed in 1998, crosses the Kanawha River near Eleanor, in
Putnam County, connecting U. S. Route 35, which follows the
southwest side of the river, with W. Va. State Route 62, which
follows the northeast side of the river; and
Whereas, U. S. Route 35 and
W. Va. State Route 62 are both
older designed two-lane highways that
border the Kanawha River from
Point Pleasant through Mason and Putnam counties and both highways, particularly U. S. Route 35
, are heavily traveled thoroughfares,
traveled by a large number of tractor-trailers and other commercial
vehicles in interstate commerce; and
Whereas, During a ten-year time period from January 1, 1998,
through December 31, 2007, on U. S. Route 35 alone, 1,040 traffic
accidents occurred between the intersection with W. Va. State Route
34 in Putnam County and the town of Henderson in Mason County, 29
of which resulted in 33 fatalities; one of the most tragic of those
accidents resulted in the untimely loss of Johnathon David
Higginbotham; and
Whereas, Johnathon David Higginbotham grew up in the Eleanor
and Midway areas of Putnam County, and he frequently crossed the
bridge and traveled U. S. Route 35 to visit his grandparents in
Pliny and to stay with his father
; and
Whereas, Johnathon attended Buffalo High School where he was
to be a starting guard on the basketball team for the upcoming fall
season; and
Whereas, On June 3, 2004, Johnathon crossed the bridge enroute
to his father's home, and while traveling on U. S. Route 35 just a
few miles from the bridge, Johnathon, at age 17, died in a tragic
collision with a tractor-trailer; and
Whereas, It is fitting that this bridge be named the "Memorial
Bridge" for Johnathon and the many other persons who have lost
their lives in accidents on U. S. Route 35 and State Route 62 to honor and memorialize their passing, as well as to honor their
memory by families and friends as they cross the bridge; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name
bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha
River and U. S. Route 35 near Eleanor, Putnam County, the "Memorial
Bridge" in recognition of Johnathon David Higginbotham and the many
other persons who have lost their lives on U. S. Route 35 and W.
Va. State Route 62; and, be it
Further Resolved, That the Division of Highways is requested
to have made and be placed signs identifying the bridge as the
"Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
the Department of Transportation and Johnathon David Higginbotham's
stepfather and mother, Jim and Vallery Withrow.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 58--Requesting the Division
of Highways to name bridge number 40-869-0.27 (4380) on Route 869
crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam
County, the "Memorial Bridge" in recognition of Johnathon David Higginbotham and the many other persons who have lost their lives
on U. S. Route 35 and W. Va. State Route 62.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R.
No. 58), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 105--Requesting the Division
of Highways name the Gilbert Creek bridge number 30-13-0.01 (3590)
on Route 13 in Mingo County the "Elmer and May Cline Memorial
Bridge".
Whereas, Elmer and May Cline were lifelong residents of
Gilbert, Mingo County; and
Whereas, The town of Gilbert was a significant trade area for
local residents; and
Whereas, Elmer and May Cline owned and operated a country
store in Gilbert most of their adult lives; and
Whereas, Elmer and May Cline were revered by the community for
their integrity and the contributions they made to the vitality of
the town of Gilbert; and
Whereas, It is fitting that this bridge be named for Elmer and
May Cline who represented the best qualities of citizens in this
state by their industry, citizenship and dedication to meeting the
needs of friends, neighbors and patrons at their country store;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name the Gilbert Creek bridge number 30-13-0.01 (3590) on Route
13 in Mingo County the "Elmer and May Cline Memorial Bridge"; and,
be it
Further Resolved, That the Division of Highways have made and
be placed signs identifying bridge number 30-13-0.01 (3590) as the
"Elmer and May Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this resolution to the Secretary of the
Department of Transportation, the mayor of the town of Gilbert, and
the surviving family members of Elmer and May Cline.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 107--Requesting the Division
of Highways name bridge number 30-13/2-0.02 (5935) at the Right
Hand Fork of Gilbert Creek in Mingo County the "Wilburn and Effie
Cline Memorial Bridge".
Whereas, Wilburn and Effie Cline were lifelong residents of
Gilbert, Mingo County; and
Whereas, The town of Gilbert was a significant trade area for
local residents; and
Whereas, Wilburn and Effie Cline owned and operated a country
store in Gilbert most of their adult lives; and
Whereas, Wilburn and Effie Cline donated to the State of West
Virginia the land needed to build the bridge at Right Hand Fork of
Gilbert Creek; and
Whereas, It is fitting that this bridge be named for Wilburn
and Effie Cline who represented the best qualities of citizens in
this state by their industry, citizenship and dedication to meeting
the needs of friends, neighbors and patrons at their country store;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name bridge number 30-13/2-0.02 (5935) at the Right Hand Fork of Gilbert Creek in Mingo County the "Wilburn and Effie Cline Memorial
Bridge"; and, be it
Further Resolved, That the Division of Highways have made and
be placed signs identifying the bridge as the "Wilburn and Effie
Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this resolution to the Secretary of the
Department of Transportation, to the Mayor of Gilbert, and to any
surviving members of Wilburn and Effie Cline.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 24, The A. R. "Dick" Townsend
Memorial Roadway.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, the resolution (H. C. R. No. 24) contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
At the request of Senator Hunter, and by unanimous consent,
the Senate returned to the consideration of
Senate Concurrent Resolution No. 28, Designating timber
rattlesnake as state reptile.
Having been received as a House message in earlier proceedings
tonight,
The resolution now being in the possession of the Senate,
On motion of Senator Hunter, the Senate reconsidered its
action by which in earlier proceedings tonight it adopted Senator
Chafin's motion to refuse to concur in the House of Delegates amendments to the resolution (shown in the Senate Journal of this
day, pages 485 to 486).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion to refuse to concur in the House of Delegates amendments to
the resolution, the same was put and did not prevail.
Whereupon, Senator Tomblin (Mr. President) declared the Senate
concurred in the House of Delegates amendments to the resolution.
The question now being on the adoption of the resolution (S.
C. R. No. 28), as amended, the same was put.
The result of the voice vote being inconclusive, Senator
Prezioso demanded a division of the vote.
A standing vote being taken, there were twenty-seven "yeas"
and four "nays".
Whereupon, Senator Tomblin (Mr. President) declared the
resolution (S. C. R. No. 28), as amended, adopted.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 27, Designating "Almost Heaven
-- West Virginia -- Wild and Wonderful" as the official roadway
welcome slogan of the State of West Virginia.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Senator Unger requested unanimous consent that the resolution
(H. C. R. No. 27) contained in the preceding report from the
Committee on Transportation and Infrastructure be taken up for
immediate consideration.
Which consent was not granted, Senator Sprouse objecting.
Senator Unger then moved that the resolution (H. C. R. No. 27)
contained in the preceding report from the Committee on
Transportation and Infrastructure be taken up for immediate
consideration.
The question being on the adoption of Senator Unger's
aforestated motion, the same was put and did not prevail.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed business under the fourth order.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
House Concurrent Resolution No. 37, Urging the Government of
Turkey to uphold and safeguard religious and human rights and to
cease its discrimination of the Ecumenical Patriarchate.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the resolution (H. C. R. No. 37) contained in the
preceding report from the Committee on the Judiciary was taken up
for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive
gambling.
Whereupon, Senator Kessler, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive
gambling.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 4402 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That the Senate recede from its amendments to the bill and its
title.
Respectfully submitted,
Corey L. Palumbo, Chair, Tim Miley, Bill Hamilton, Conferees
on the part of the House of Delegates.
Jeffrey V. Kessler, Chair, Michael A. Oliverio II, Andy
McKenzie, Conferees on the part of the Senate.
Senator Kessler, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Kessler, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4402, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell,
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White,
Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4402) passed with its title.
Ordered, That The Clerk of the Senate communicate to the House
of Delegates the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 2, Requesting Joint Committee
on Government and Finance study tourism opportunities in
less-developed counties.
Senate Concurrent Resolution No. 67, Requesting Joint
Committee on Government and Finance study joint parenting.
Senate Concurrent Resolution No. 68, Requesting Joint Committee on Government and Finance study Alcohol and Drug Mental
Health Courts.
And,
Senate Concurrent Resolution No. 70, Requesting Joint
Committee on Government and Finance study West Virginia Tax
Increment Financing Act.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 2 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 67 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 68 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 70 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 16, Requesting Joint
Committee on Government and Finance study elimination of wireless coverage dead spots.
And,
Senate Concurrent Resolution No. 56, Requesting Joint
Committee on Government and Finance study certain veterans'
eligibility for Veterans Memorial Monument.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 16 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 56 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 3, Requesting Legislative
Oversight Commission on Education Accountability explore options to
improve school health.
Senate Concurrent Resolution No. 32, Requesting Joint
Committee on Government and Finance study daily physical education
classes.
House Concurrent Resolution No. 80, Requesting the Joint
Committee on Government and Finance to make a study on promoting a
safe and productive learning environment.
House Concurrent Resolution No. 81, Requesting the Joint
Committee on Government and Finance to make a study on providing
supplemental state aid for the instruction of english as a second
language.
And,
House Concurrent Resolution No. 82, Requesting the Joint
Committee on Government and Finance to make a study to improve the
efficiency of school level, county board and regional education
service agency accounting practices and procedures.
And reports the same back with the recommendation that they each be adopted; but under the original double committee references
first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolutions, under the original double committee
references, were then referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
House Concurrent Resolution No. 79, Requesting the Joint
Committee on Government and Finance to study the feasibility of
election day registration in and for the State of West Virginia.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Chafin, unanimous consent was
granted to dispense with the second committee reference to the
Committee on Rules of the resolution contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Chafin, unanimous consent being granted, the resolution (H. C. R. No. 79) was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Concurrent Resolution No. 13, Requesting Legislative
Oversight Commission on Health and Human Resources Accountability
study sexual assault nurse examiner programs.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 59, Requesting Joint
Committee on Government and Finance study simplified tax structure
for communications.
Senate Concurrent Resolution No. 61, Requesting Joint
Committee on Government and Finance study energy sources' taxation.
And,
Senate Concurrent Resolution No. 74, Requesting Joint
Committee on Government and Finance review property tax assessment
and appeals system.
And reports the same back with the recommendation that they
each be adopted; but under the original double committee references
first be referred to the Committee on Rules.
Respectfully submitted,
Walt Helmick,
Chair.
The resolutions, under the original double committee
references, were then referred to the Committee on Rules.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 65, Urging Congress to pass
resolution regarding farm vehicle exemptions.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, the resolution (S. C. R. No. 65) contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
__________
The midnight hour having arrived, the President stated all
unfinished legislative business, with the exception of the budget
bill, had expired due to the time element.
A series of messages from the House of Delegates having been
received at his desk, the following communications were reported by
the Clerk:
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 398, Authorizing Department
of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 536, Exempting Supreme
Court probation officers' vehicles from certain registration
requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report,
with its conference amended title, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain
firefighters' workers' compensation benefits.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendments to, and the passage
as amended by deletion, to take effect July 1, 2008, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573,
Increasing public school teachers' and service personnel annual
salaries.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, of
Eng. Senate Bill No. 606, Requiring hiring preference for
summer school program positions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 645, Exempting city and county hospitals from certain audit requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2008, of
Eng. Senate Bill No. 659, Increasing certain crime victims'
benefits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 673, Making supplementary appropriation
to Department of Health and Human Resources.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 674, Making supplementary appropriation
to Department of Administration and Department of Military Affairs
and Public Safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 6, Requesting Joint Committee
on Government and Finance study Universal Voluntary Accounts
Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 8, Requesting Division of
Highways name bridge in Beaver, Raleigh County, "Major Jeff L.
Davis Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 18, Requesting Division of
Highways name bridge in Martinsburg, Berkeley County, "Dr. C.
Vincent Townsend, Sr., Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 22, Requesting Division of
Highways name bridge in Clarksburg, Harrison County, "PFC Hotty
Herrick Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Com. Sub. for Senate Concurrent Resolution No. 60, Requesting
Joint Committee on Government and Finance study armed forces
retirement service credit.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 69, Requesting Joint
Committee on Government and Finance study judicial elections.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 71, Requesting Division of
Highways name bridge in Grafton, Taylor County, "Floyd 'Scotty'
Hamilton: First WVU All American Basketball Player Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 75, Requesting Division of
Highways name bridge in Summers County "Vaughn Ray York, Jr.,
Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 76, Requesting Division of
Highways place sign at Fayetteville, Fayette County, "Coolest Small
Town".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 77, Urging Congress declare
December 7th a national holiday.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 83, Requesting Division of
Highways name bridge in Kanawha County "Captain Benjamin D. Tiffner
Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 84, Requesting Division of
Highways name bridge in Kanawha County "Master Sergeant William L.
'Buster' Hackney Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 88, Requesting Division of
Highways name bridge in Delbarton, Mingo County, "Thomas Elbert
Muncy, Jr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 4016, Updating meaning of federal adjusted
gross income and certain other terms used in West Virginia Personal
Income Tax Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 4017, Updating meaning of federal taxable
income and certain other terms used in West Virginia Corporation
Net Income Tax Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
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.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4059, Relating to medical
qualifications for school bus operators.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4094, Relating to reimbursement of
compensation paid to certain state employees for job-related
training, education or professional development.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 4121, Authorizing the
participation of local governments in a purchasing card program to
be administered by the Auditor.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. House Bill No. 4296, Relating to the rights of crime victims.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide
residents wholly or solely owning greyhounds.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. House Bill No. 4348, Adding language to the code for fees
for tests and certificates that were already imposed.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2008, of
Eng. House Bill No. 4406, Relating to state board standards
for the recommended duration of school bus transportation times for
students to and from school.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum
amount of a medical student loan that may be cancelled.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2008, of
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher
education energy and water savings revolving loan fund.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4465, Relating to fees charged by the
Secretary of State.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4476, Public-Private
Transportation Facilities Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4515, Relating to reports by
health care providers of persons incompetent to drive an
automobile.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for House Bill No. 4524, Relating generally to the ethical standards of public officers, employees and lobbyists.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4527, Allowing county commissions to
regulate subdivisions and land development without adopting a plan.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4567, Attracting private investment for
the financing, construction and operation of additional lodging
units at Stonewall Jackson Lake State Park.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2008, of
Eng. House Bill No. 4588, Relating to public school support.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4623, Relating to establishing minimum
deductions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4637, Relating to the
deployment of broadband to the remaining unserved areas of the
state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
adoption as amended, with its Senate amended title, of
House Concurrent Resolution No. 55, The "Brian Keith Paul
Brian Keith Paul Memorial Bridge".
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Sunday, March 9, 2008, at 12:15 a.m., for an extended
session to complete action on the annual state budget, under
authority of the Governor's proclamation issued March 5, 2008,
extending the second annual session of the seventy-eighth
Legislature until and including the eleventh day of March, two
thousand eight, solely for that purpose, as being the only
permissive legislation within constitutional purview.
__________